Citation Nr: 1800566	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  15-42 875	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a compensable disability rating due to multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G. Fraser, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1963 to September 1969.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas.

In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  


FINDING OF FACT

The Veteran's multiple service-connected disabilities were of such character as clearly to interfere with normal employability throughout the period of the claim.


CONCLUSION OF LAW

The criteria for a 10 percent disability rating under 38 C.F.R. § 3.324 have been met.  38 C.F.R. § 3.324 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As will be explained below, the Board has determined the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to a compensable disability rating under 38 C.F.R. § 3.324.  Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2017) before the Board decides the claim, as this is considered a complete grant of the benefit sought.

Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Legal Criteria

38 C.F.R. § 3.324 provides that whenever a veteran is suffering with two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating.

Factual Background and Analysis

The Veteran is service connected, and has been assigned noncompensable ratings for, residuals of prostate cancer, an anterior trunk scar, a right leg scar, right lower extremity peroneal neuritis, erectile dysfunction, and bilateral hearing loss.  By way of a March 2012 rating decision, the RO denied entitlement to a 10 percent rating based on the cumulative effect of these disabilities in accordance with 38 C.F.R. § 3.324.  This appeal followed.  
A review of the Veteran's August 2011 VA hearing loss examination shows he struggles to understand speech in a number of situations, and also reported missing some sounds.  The Veteran also underwent a VA examination in September 2011 to assess for residuals of prostate cancer.  At that time, the examiner noted a right leg nerve harvesting procedure, which the Veteran underwent at the time of his radical prostatectomy.  As a result, the Veteran reported experiencing decreased sensation in his foot.  Further, during his October 2017 Board hearing the Veteran indicated he must make frequent diversions during the day to urinate, because he has experienced episodes of urinary leakage if he waits too long.  

Based upon a review of the entire record, there is no doubt the Veteran's service connected disabilities would clearly interfere with normal employability.  In conjunction, his impairments cause him difficulty with communication, with standing and ambulation, and also impact his ability to maintain continuous work performance.  Accordingly, the Board has determined the Veteran is entitled to a 10 percent rating under 38 C.F.R. § 3.324.


ORDER

Entitlement to a 10 percent disability rating under 38 C.F.R. § 3.324 is granted.




____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs