Citation Nr: 1803594	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  13-24 4192	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to service connection for peripheral neuropathy of the right and left upper extremities.

2.  Entitlement to service connection for peripheral neuropathy of the right and left lower extremities.

3.  Entitlement to a combined disability evaluation greater than 70 percent disabling for the rating period from June 29, 2010 to April 18, 2016.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Army from January 1968 to November 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 and May 2011 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama.

The issues of entitlement to service connection for peripheral neuropathy of the right and left upper extremities and peripheral neuropathy of the right and left lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's combined rating for service-connected disabilities for the rating period from June 29, 2010 to April 18, 2016 was correctly calculated by the RO.


CONCLUSION OF LAW

Revision of the previously-computed combined rating for service-connected disabilities for the rating period from June 29, 2010 to April 18, 2016 is not warranted.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.323, 4.25 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).

Nonetheless, the United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive).  Indeed, that is the case with regard to the Veteran's claim of entitlement to higher combined rating, although the Board notes that adequate notice was provided, sufficient evidence was developed in this appeal, and no further development is required.

Combined Ratings

When there are two of more service-connected compensable disabilities, a combined evaluation will be made following the table and rules prescribed in the 1945 Schedule for Rating Disabilities. 38 C.F.R. § 3.323. 

Combined ratings are determined by using the Combined Ratings Table in Table I of 38 C.F.R. § 4.25.  To use Table I, the disabilities are first arranged in the exact order of their severity, beginning with the greatest disability and then combined using Table I; the figures appearing in the space where the column and the row intersect represent the combined value of the two.  This combined value is then converted to the nearest number divisible by 10; combined values ending in 5 are adjusted upward. If there are more than two disabilities, the combined value of the first two disabilities is charted against the third disability using Table I.  The same procedure is used if there are four or more disabilities.  38 C.F.R. § 4.25(a). 

The Board observes that the May 2011 rating decision at issue involves the grant of service connection for ischemic heart disease and the award of 60 percent disability rating, effective June 29, 2010.  Prior to the issuance of the May 2011 rating decision, service connection had been granted for onychomycosis of the right and both feet, with tinea pedis, bilateral hearing loss disability, and tinnitus; a 10 percent disability rating was in effect for each.  As such, in the May 2011 rating decision, the RO calculated the combined rating as 70 percent. 

The Board points out that the Veteran has not asserted that he is entitled to a higher disability rating for his service-connected ischemic heart disease.  Instead, the Veteran asserts that he should have been assigned a higher combined disability rating for all of his service-connected disabilities at that time.  As such, for the purpose of answering the Veteran's appeal, which is a challenge to the combined disability rating as assigned in the May 2011 rating decision, and in effect from June 29, 2010 to April 18, 2016, the Board will limit its consideration to whether the RO correctly calculated the Veteran's combined disability level under the currently assigned disability ratings. 

Applying the above ratings to Table I, the first two disabilities (60 percent for ischemic heart disease combined with 10 percent for onychomycosis) yield a combined rating of 64.  38 C.F.R. § 4.25.  A 64 percent rating and the 10 percent rating for bilateral hearing loss combine to a combined rating of 68.  A 68 percent rating and the 10 percent rating for tinnitus combine to a combined rating of 71.  The 71 percent rating is adjusted downward to 70 percent pursuant to 38 C.F.R. § 4.25(a) (ratings are rounded to the nearest number divisible by 10, with amounts ending in 5 or above being rounded up).  Thus, the 70 percent combined rating assigned by the RO is correct under the current law.


ORDER

The appeal for revision of the combined rating for service-connected disabilities is denied.


REMAND

The Veteran asserts that he has peripheral neuropathy of the right and left lower extremities and right and left upper extremities, related to his service.  In particular, the Veteran asserts that his peripheral neuropathy is related to his presumed exposure to Agent Orange during his service in Vietnam.  The record is unclear as to whether the Veteran has been diagnosed with peripheral neuropathy of any or all of his extremities.  In this regard, the Board observes that the Veteran submitted treatment records from Dr. S, a neurologist, which reflect that the Veteran has "diagnoses or symptoms" of cervical and lumbar radiculopathy, transient ischemic attacks, peripheral neuropathy, and cervical myelopathy.  As such, the Board finds that the Veteran should be afforded a VA examination regarding the claims for service connection of peripheral neuropathy of the right and left lower extremities and right and left upper extremities.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4).

Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992).   Any available VA treatment should be associated with the Veteran's claims file.  


Accordingly, the case is REMANDED for the following action:

1.  The RO should take appropriate steps to obtain and associate with the record copies of the Veteran's VA treatment records, if any, associated with the claims on appeal for the rating period on appeal.

2.  The Veteran should be afforded an appropriate VA neurological examination to determine the nature and etiology of any neurological disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file.
	
The VA examiner should identify any current peripheral neuropathy of the right and left lower extremities and right and left upper extremities and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified neurological disorder is related to any event, illness, or injury during service, including the Veteran's presumed Agent Orange exposure.  

The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.  

A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided.

3.  After completing all indicated development, the RO should readjudicate the claims for service connection in light of all the evidence of record.   If any of the benefits sought remain denied, the case should be returned to the Board after compliance with requisite appellate procedures.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).







______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs