Citation Nr: 1322148 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-28 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a combined disability rating in excess of 90 percent following the grant of service connection for obstructive sleep apnea with an initial assigned 50 percent disability evaluation. 2. Whether a substantive appeal as to the issue of entitlement to an effective date earlier than January 23, 2008 for service connection for obstructive sleep apnea was timely received. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to January 1992. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in San Diego, California, which granted service connection for obstructive sleep apnea with an initial disability rating of 50 percent effective January 23, 2008. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a veteran's claim for benefits. FINDINGS OF FACT 1. By means of a November 2008 rating decision, the Veteran was granted service connection for obstructive sleep apnea with an initial disability rating of 50 percent. 2. Using the combined ratings table from 38 C.F.R. § 4.25, the additional 50 percent rating for obstructive sleep apnea results in a combined disability evaluation of 90 percent. 3. The Veteran's substantive appeal regarding the issue of entitlement to an effective date earlier than January 23, 2008 for the grant of service connection for obstructive sleep apnea was not received by the RO until October 1, 2010, more than one year following the December 8, 2008 notification of the November 2008 rating decision, and more than 60 days following the issuance of the March 26, 2010 Statement of the Case ("SOC"). CONCLUSIONS OF LAW 1. A combined disability rating in excess of 90 percent is not warranted. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.25, 4.26 (2012). 2. A substantive appeal as to the assigned effective date for service connection for obstructive sleep apnea was not timely filed; thus the Board lacks jurisdiction to consider this issue. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. Governing law and regulations provide that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim (i.e., there can be no entitlement to the benefit as a matter of law). 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The United States Court of Appeals for Veterans Claims ("Court") has further held that VCAA does not apply where the law, and not the evidence, is dispositive of the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As will be discussed below, the timeliness and adequacy of a substantive appeal is a jurisdictional matter and is governed by the interpretation of law. Further, as to the combined rating issue, the law and not the evidence is dispositive. In such a case, the VCAA has no application. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The Board notes further that in March 2010, the Veteran testified before a Decision Review Officer (DRO) at the San Diego RO on the issue of entitlement to an earlier effective date for the grant of service connection for obstructive sleep apnea. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) or DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Generally these provisions appear to have been met by the DRO at the hearing and neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of that hearing. Nonetheless, the Board observes that given the procedural posture of this case, the Board does not reach the substantive effective date issue. More importantly, the Veteran has not requested a hearing in connection with the specific issues that are before the Board at this time. A. Entitlement to a combined disability rating in excess of 90 percent following the grant of service connection for obstructive sleep apnea with an initial assigned 50 percent disability evaluation. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Calculating the proper combined evaluation requires the use of 38 C.F.R. § 4.25 and the Combined Ratings Table found therein (it is noted that the Veteran received a copy of the ratings table in the supplemental statement of the case mailed to him in September 2012). Table I of 38 C.F.R. § 4.25, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in Table I opposite 60 percent and under 30 percent. 38 C.F.R. § 4.25. To use Table I, the disabilities will first be arranged in the exact order of their severity, beginning with the greatest disability and then combined with use of Table I. For example, if there are two disabilities, the degree of one disability will be read in the left column and the degree of the other in the top row, whichever is appropriate. The figures appearing in the space where the column and row intersect will represent the combined value of the two. This combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. Thus, with a 50 percent disability and a 30 percent disability, the combined value will be found to be 65 percent, but the 65 percent must be converted to 70 percent to represent the final degree of disability. Similarly, with a disability of 40 percent, and another disability of 20 percent, the combined value is found to be 52 percent, but the 52 percent must be converted to the nearest degree divisible by 10, which is 50 percent. If there are more than two disabilities, the disabilities will also be arranged in the exact order of their severity and the combined value for the first two will be found as previously described for two disabilities. The combined value, exactly as found in Table I, will be combined with the degree of the third disability (in order of severity). The combined value for the three disabilities will be found in the space where the column and row intersect, and if there are only three disabilities will be converted to the nearest degree divisible by 10, adjusting final 5's upward. Thus, if there are three disabilities ratable at 60 percent, 40 percent, and 20 percent, respectively, the combined value for the first two will be found opposite 60 and under 40 and is 76 percent. This 76 will be combined with 20 and the combined value for the three is 81 percent. This combined value will be converted to the nearest degree divisible by 10 which is 80 percent. The same procedure will be employed when there are four or more disabilities. 38 C.F.R. § 4.25(a); see 38 C.F.R. § 4.25, Table I. Except as otherwise provided in the ratings schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any. All disabilities are then to be combined as described above. 38 C.F.R. § 4.25(b). When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, but 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. 38 C.F.R. § 4.26. The use of the terms "arms" and "legs" is not intended to distinguish between the arm, forearm and hand, or the thigh, leg and foot, but relates to the upper extremities and lower extremities as a whole. 38 C.F.R. § 4.26(a). The correct procedure when applying the bilateral factor to disabilities affecting both upper extremities and both lower extremities is to combine the ratings of the disabilities affecting the four extremities in the order of their individual severity and apply the bilateral factor by adding, not combining, 10 percent of the combined value thus attained. 38 C.F.R. § 4.26(b). The bilateral factor is not applicable unless there is partial disability of compensable degree in each of two paired extremities, or paired skeletal muscles. 38 C.F.R. § 4.26(c). Prior to the November 2008 rating decision, service connection was in effect for residuals of right hip arthroplasty (30 percent disability rating); residuals of a left hip arthroplasty (30 percent disability rating); left knee degenerative joint disease (20 percent disability rating); right knee degenerative joint disease (20 percent disability rating); hypertension (10 percent disability rating); degenerative disk disease of the lumbar spine (10 percent disability rating); left lower extremity radiculopathy (10 percent disability rating); status post dislocation of the 5th PIP joint (0 percent disability rating); sinusitis (0 percent disability rating); and status post right inguinal herniorrhaphy (0 percent disability rating). A combined disability evaluation of 80 percent was in effect. As noted, a November 2008 rating decision granted service connection for obstructive sleep apnea and assigned an initial disability rating of 50 percent effective from January 28, 2008. Using Table I, which combines the newly assigned disability rating, the additional 50 percent rating granted for the Veteran's service-connected obstructive sleep apnea results in a combined total disability evaluation of 90 percent with application of the bilateral factor. Although it would seem intuitive that an increase in the ratings for service-connected disabilities would have the effect of increasing the Veteran's combined rating for all service-connected disability to a proportional degree, or at least more than 10 percent overall, as shown, the computation of the combined schedular rating does not operate by way of simply adding all separate disability percentages. There is an important distinction between adding percentages together and combining percentages together using the ratings table. As earlier noted, the ratings table is employed to obtain an evaluation that reflects the "efficiency" of the Veteran as affected first by the most disabling condition followed by less disabling conditions in descending order. As explained above, the RO's calculation of the Veteran's combined schedular rating for all service-connected disabilities as a result of the November 2008 rating decision was proper, and he is not entitled to a higher combined schedular rating by operation of law. Where the law and not the evidence is dispositive, the claim is denied because of lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, a combined disability rating in excess of 90 percent must be denied as a matter of law. Therefore, the "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). B. Whether a substantive appeal as to the issue of entitlement to an effective date earlier than January 23, 2008 for service connection for obstructive sleep apnea was timely received. The Board shall not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108. Under VA regulations, an appeal consists of a timely filed Notice of Disagreement ("NOD") in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals ," or another correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions a veteran needs to take in order to perfect an appeal. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the veteran or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (2012). The date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Id. Where a veteran files a timely NOD, but fails to timely file a substantive appeal, the appeal is untimely, and it is proper for the Board to dismiss the claim. Roy v. Brown, 5 Vet. App. 554, 555 (1993). In this case, the Veteran was notified of the rating decision, which granted service connection for obstructive sleep apnea with an initial disability evaluation of 50 percent, by means of a letter dated December 8, 2008. On August 7, 2009, the Veteran's timely NOD was received, and on March 26, 2010, the RO issued an SOC as to the issue of an earlier effective, along with a letter explaining the Veteran's appellate rights and responsibilities. However, the Veteran's substantive appeal (by means of a VA Form 9) was not received until October 1, 2010, more than one year after the issuance of the rating decision and more than 60 days after the issuance of the SOC. In short, the Veteran did not file a timely substantive appeal in accordance with the provisions of 38 U.S.C.A. § 7105 and 38 C.F.R. § 20.302(b). Furthermore, the record does not reflect that the Veteran has requested an extension of time or shown good cause to support the grant of an extension of the time limit for filing his substantive appeal. 38 C.F.R. § 20.303 (2012). Accordingly, the Board is without jurisdiction to consider the Veteran's claim. ORDER Entitlement to a combined disability rating in excess of 90 percent following the grant of service connection for obstructive sleep apnea with an initial assigned 50 percent disability evaluation is denied. A timely substantive appeal was not received as to the initial assigned effective date for service connection for obstructive sleep apnea; accordingly, the appeal is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs