Citation Nr: 1802763 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-10 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES Entitlement to a total combined disability rating prior to January 9, 2007, to include consideration of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1973 and from March 1975 to August 1976. This matter comes before the Board of Veteran's Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. The Veteran's total combined rating is properly calculated. 2. The Veteran was employed by the VA Regional Office in Houston, Texas, until February 11, 2008. CONCLUSION OF LAW 1. The criteria for a combined total rating prior to January 9, 2007, to include consideration of a TDIU, have not been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records as well as VA examinations are associated with the claims file. Therefore, VA has met its duty to assist with respect to obtaining pertinent evidence. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Combined Ratings The Veteran asserts that VA erroneously calculated his disability rating, which in turn prevented VA from assigning him a total combined rating. He specifically questions his combined rating since April 14, 2005. Currently, the Veteran receives a 90 percent combined rating from December 27, 2004. To determine his combined rating for the respective periods and for determining his compensation rate, the ratings are not simply added together. Table I, 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. 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, and 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 in this section will be treated as 1 disability for the purpose of arranging in order of severity and for all further combinations. For example, with disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 percent (the two 10's representing bilateral disabilities), the order of severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and the 68 and 20 to 74 percent, converted to 70 percent as the final degree of disability. 38 C.F.R. § 4.26. After analyzing and applying the Combined Ratings Table to the Veteran's assigned disability ratings, the Board finds the Veteran's assigned disability ratings are accurate. See 38 C.F.R. §§ 4.25, 4.26 (2017). Period from December 27, 2004, to April 14, 2005 For the period from December 27, 2004, to April 14, 2005, the Veteran received compensable ratings for diabetic neuropathy (30 percent from September 12, 2003); pansinusitis (30 percent from May 8, 2002); anxiety disorder (30 percent from December 31, 2002); hypertensive heart disease (30 percent from December 27, 2004); diabetes mellitus (20 percent from November 25, 1998); kidney stones (10 percent from November 25, 1998); bilateral otitis media (10 percent from November 11, 1999); and tinnitus (10 percent from November 10, 1999). Starting from the Veteran's highest rated disability to his lower rated disability while utilizing Table I from 38 C.F.R. § 4.25, the 30 percent for diabetic neuropathy is combined with the 30 percent for pansinusitis to yield 51 percent. The 51 percent is combined with the 30 percent for anxiety disorder to yield 66 percent. The 66 percent is combined with the 30 percent for hypertensive heart disease to yield 76 percent. The 76 percent is combined with 20 percent for diabetes to yield 81 percent. The 81 percent is combined with the 10 percent for kidney stones to yield 83 percent. The 83 percent is combined with the 10 percent for bilateral otitis media to yield 85 percent. The 85 percent is combined with the 10 percent for tinnitus to yield 87 percent. The 87 percent is rounded up to 90 percent. The 90 percent represent the correct total combined rating for this period. Period from April 14, 2005, to January 9, 2007 For the period from April 14, 2005, to January 9, 2007, the Veteran received compensable ratings for diabetic neuropathy (60 percent from April 14, 2005); pansinusitis (30 percent from May 8, 2002); anxiety disorder (30 percent from December 31, 2002); hypertensive heart disease (30 percent from December 27, 2004); diabetes mellitus (20 percent from November 25, 1998); kidney stones (10 percent from November 25, 1998); bilateral otitis media (10 percent from November 11, 1999); and tinnitus (10 percent from November 10, 1999). He also received a rating for diabetic cataracts during this period (10 percent from August 29, 2005). Starting from the Veteran's highest rated disability to his lower rated disability while utilizing Table I from 38 C.F.R. § 4.25, the 60 percent for diabetic neuropathy is combined with the 30 percent for pansinusitis to yield 72 percent. The 72 percent is combined with the 30 percent for anxiety disorder to yield 80 percent. The 80 percent is combined with the 30 percent for hypertensive heart disease to yield 86 percent. The 86 percent is combined with the 20 percent for diabetes to yield 89 percent. The 89 percent is combined with the 10 percent for kidney stones to yield 90 percent. The 90 percent is combined with the 10 percent for bilateral otitis media to yield 91 percent. The 91 percent is combined with the 10 percent for tinnitus to yield 92 percent. The 92 percent is rounded down to 90 percent. The 90 percent represents the correct total combined rating for this period from April 14, 2005, to August 29, 2005. On August 29, 2005, the Veteran started receiving a 10 percent rating for diabetic cataracts. As a result, his 92 percent is combined with 10 percent to yield 93 percent. The 93 percent is also rounded down to 90 percent and represents the correct total combined rating from August 29, 2005, to January 9, 2007. Consequently, VA appropriately assigned the Veteran the correct disability ratings during the contested appeal period. Thus, the Veteran's claim for entitlement to a total combined disability rating prior to January 9, 2007, must be denied. TDIU In the Veteran's claim on appeal, he asserts entitlement to a TDIU prior to the assignment of his 100 percent combined schedular rating on January 9, 2007. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2017). A total disability rating for compensation purposes may be assigned on the basis of "individual unemployability," or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2017). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. A necessary component of any TDIU claim is that the Veteran is unable to secure or follow a substantially gainful occupation. However, by the Veteran's own admission and as confirmed by records from his former employer, who is the VA Regional Office in Houston, the Veteran resigned on February 11, 2008. He started in that position in 1994. Therefore, as the evidence demonstrates that the Veteran was working prior to January 9, 2007, the Board must deny the Veteran's claim for a TDIU. ORDER A combined total rating prior to January 9, 2007, to include consideration of a TDIU, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs