Citation Nr: 1754880	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  17-44 664	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Whether VA properly calculated the Veteran's disability compensation after the Veteran had his service-connected left toe amputated.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Sopko, Counsel



INTRODUCTION

The Veteran served on active duty from August 1955 to November 1957. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA).  This rating decision, in relevant part, granted the Veteran a temporary 100 percent convalescence rating after he had his service-connected left toe amputated as well as two post-convalescence ratings.  Based on the Veteran's assorted statements and his testimony before a Decision Review Officer (DRO) in March 2017, the Board has recharacterized the appellate issue.  Specifically, the hearing transcript suggests that, at core, the Veteran does not understand how VA calculated his disability rating after the amputation.  


FINDING OF FACT

VA correctly calculated the Veteran's compensation.


CONCLUSION OF LAW

There is no error in the RO's calculation of the combined disability rating of 30 percent for the period in question.  38 C.F.R. §§ 4.25, 4.26 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA service connected the Veteran's left toe disorder, effective April 23, 1998.  VA rated the disability under Diagnostic Code (DC) 5283.  From April 24, 2003 to June 15, 2012, VA rated the toe as 30 percent disabling.  On June 15, 2012, doctors amputated the Veteran's toe.

Effective June 15, 2012, VA changed the DC under which it rated the Veteran's disability to reflect the amputation.  The new DC was 5172.  

From to June 15, 2012 to July 31, 2012, VA rated the Veteran as 100 percent disabled because of the amputation and the convalescence period.  On August 1, 2012, VA discontinued the temporary convalescence rating, assigning a 20 percent disability rating under DC 5172.  On August 1, 2012, VA granted a separate 10 percent rating for neuritis under DC 5172.  

The Veteran has maintained through the pendency of his appeal that VA has failed to properly compensate him after his amputation.  He contends that he is entitled to a 60 percent rating - 30 percent from his pre-surgery rating plus the 20 percent and 10 percent post-surgery ratings.  This is incorrect.

Sections 4.25 and 4.26 of Title 38 of the Code of Federal Regulations govern the calculation of disability compensation when a veteran has multiple service-connected disabilities.  

The law directs the Secretary of VA to provide for ratings based on the combination of evaluations for veterans suffering from multiple service-connected disabilities. See 38 U.S.C.A. § 1157. The Secretary has prescribed a table for combined ratings in 38 C.F.R. § 4.25.  Combined ratings result 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.  Id. 

The Veteran essentially contends that the use of the Combined Ratings Table is inaccurate.  However, the law provides that its use is not governed by mathematical calculation by simply adding together the ratings of all his service-connected disabilities.  As noted above, VA is directed by law to provide for evaluations based on the combination of ratings for multiple service-connected disabilities by use of the Combined Ratings Table at 38 C.F.R. § 4.25.  The Board is bound by applicable statutes, VA regulations, and precedent opinions of the General Counsel of the Department of Veterans Affairs, and is without authority to revise them.  38 C.F.R. § 19.5.  Therefore, the Board does not have any authority to calculate the Veteran's overall disability rating utilizing any method other than the Combined Ratings Table and 38 C.F.R. § 4.25.

The Veteran's confusion stems from the fact that VA assigned new DCs to reflect his symptomatology after his amputation.  He does not, contrary to his assertions in pages 11-14 of the DRO hearing transcript, continue to be rated under DC 5283.  VA properly ended that rating on June 15, 2012, the day his left toe was amputated.  

To the extent the Veteran has periodically claimed that his current combined rating does not reflect his total disability picture, the Board notes the Veteran filed a claim for a separate foot disorder after his amputation, but that VA denied his claim in June 2015.  He did not file a Notice of Disagreement with that decision.


ORDER

The appeal is denied.



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs