Citation Nr: 1808984 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-30 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a combined rating in excess of 90 percent for the Veteran's service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decisions by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in June 2015, and a transcript of the hearing is associated with his claims folder. This appeal was previously before the Board in March 2017. The appeal was remanded for additional development. The requested development was substantially complied with and thus, the claim is ready for appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). The March 2017 Board remand also remanded the claim of entitlement to service connection for a cervical spine disability. The Veteran was granted service connection for a cervical spine disability in an August 2017 rating decision. As the Veteran's claim was granted in full the claim is no longer within the Board's jurisdiction. Therefore, the issues are as noted on the cover page. FINDING OF FACT As of August 17, 2017, under the Combined Rating Table set forth in 38 C.F.R. § 4.25, the Veteran's combined total rating was 80 percent with a bilateral factor of 1.9 percent, effective from August 31, 2010, 90 percent with a bilateral factor of 2.8 percent, effective from September 6, 2011, and 90 percent with a bilateral factor of 3.6 percent, effective from November 14, 2011. CONCLUSION OF LAW Entitlement to a combined rating in excess of 90 percent is not warranted as a matter of law. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.25, 4.26 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Criteria VA uses the Combined Ratings Table set forth in 38 C.F.R. § 4.25 to determine the combined rating for a Veteran's service-connected disabilities. A combined rating 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. 38 C.F.R. § 4.25. To calculate the combined evaluation for the Veteran's service-connected disabilities with compensable ratings, the disabilities are first arranged in the exact order of their severity, beginning with the greatest disability. Next, the degree of the first disability is read in the left column of the table and the degree of the second disability is read in the top row of the table, whichever is appropriate. The figure that appears in the space where the column and row intersect represents the combined value of the two. Then, the combined value of the first two disabilities is combined in the table with the degree of the third disability. The combined value for the three disabilities will be found in the space where the column and row intersect. This total combined value is then converted to the nearest degree divisible by 10. Combined values ending in 5 are adjusted upwards. 38 C.F.R. § 4.25. Furthermore, special consideration is provided for cases involving both legs, as is found here. To fully compensation the claimant for this type of disability, VA considers a "bilateral factor" under 38 C.F.R. § 4.26. Thereunder, the ratings for 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. 38 C.F.R. § 4.26. 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 section will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. II. Analysis The Veteran is seeking entitlement to a combined rating in excess of 90 percent for his service-connected disabilities. Specifically, the Veteran stated he felt the March 2013 rating decision in which he was granted increased ratings for his service-connected lumbar spine disability, right and left lower extremity radiculopathies should have resulted in a combined rating increase more than 10 percent. See June 2013 Veteran statement. For the reasons that follow the Board finds a combined rating in excess of 90 percent for the Veteran's service-connected disabilities is not warranted. The Board acknowledges the Veteran's contention that his overall (combined) rating should be higher. However, disability percentages are not added to arrive at the level of disability. To do so would result in the anomalous result of combined percentages greater than 100 percent. Rather, combined ratings are arrived at by using a formula to calculate the degree of disability caused by a service-connected disorder based on the consideration of the efficiency of the individual as a whole, as affected first by his most disabling condition, then by the less disabling conditions in the order of their severity. Turning to the case at hand, the Board finds, following the instructions set forth in 38 C.F.R. §§ 4.25 and 4.26, the Veteran's combined ratings have been calculated properly. Prior to the March 2013 rating decision in question the Veteran was assigned a combined rating of 80 percent effective February 10, 2011. Following the directions set forth in 38 C.F.R. § 4.25, the 50 percent assigned for PTSD is combined with the 30 percent for bronchial asthma, resulting in 65 percent. The 65 percent is combined with the 20 percent assigned for the lumbar spine, resulting in 72 percent. The 72 percent is combined with the 10 percent assigned for tinnitus, resulting in 75 percent. The 75 percent is combined with the 10 percent assigned for right lower extremity radiculopathy resulting in 78 percent. The 78 percent is combined with the 10 percent assigned for hearing loss, resulting in 80 percent. The Veteran's assigned rating for his right hand disability does not get combined with the 80 percent as it is rated as 0 and therefore does not add to the combined evaluation. Thus, the May 2011 rating decision accurately reflects the Veteran's proper combined rating was 80 percent effective February 10, 2011, at that time. In a March 2013 rating decision the Veteran was granted an increase from 20 percent disabling to 40 percent disabling effective November 14, 2011, for his service-connected lumbar spine disability, as well as an increase from 10 percent to 20 percent disabling effective November 14, 2011, for his service-connected right lower extremity radiculopathy, and granted service connection for left lower extremity radiculopathy rated as 20 percent disabling from November 14, 2011. Following the aforementioned increases and grant of service connection the Veteran's combined rating increased from 80 percent to 90 percent. The Board finds the 90 percent combined rating assigned to be accurate. The Board notes that because the Veteran's disabilities include bilateral lower extremity radiculopathy 38 C.F.R. § 4.26 must be used to determine his combined rating. Following the directions set forth in 38 C.F.R. § 4.26 the Veteran's 20 percent rating for his right lower extremity radiculopathy is combined with his 20 percent rating for his left lower extremity radiculopathy, resulting in 36 percent. 10 percent of 36 percent is taken and added, resulting in 39.6 percent, which is rounded to 40 percent. Once the bilateral factor is calculated the directions set forth in 38 C.F.R. § 4.25 are used to determine the Veteran's combined rating. The 50 percent assigned for PTSD is combined with the 40 percent assigned for his lumbar spine disability, resulting in 70 percent. The 70 percent is combined with the 40 percent rating for the Veteran's bilateral lower extremity radiculopathy calculated following the instructions set forth in 38 C.F.R. § 4.26, resulting in 82 percent. The 82 percent is combined with the 30 percent for bronchial asthma, resulting in 87 percent. The 87 percent is combined with the 10 percent assigned for tinnitus, resulting in 88 percent. The 88 percent is combined with the 10 percent assigned for hearing loss, resulting in 89 percent. The Veteran's right hand disability continued to be rated as noncompensable. The resulting 89 percent is rounded to a combined rating of 90 percent. Therefore, the March 2013 rating decision accurately reflects the Veteran's proper combined rating was 90 percent effective November 14, 2011, at that time. The Veteran's combined rating was impacted following a June 2016 rating decision which granted an increased rating for the Veteran's left lower extremity radiculopathy, resulting in a 10 percent evaluation effective August 31, 2010, and a 20 percent evaluation effective September 6, 2011. This resulted in an 80 percent combined evaluation from August 31, 2010, a 90 percent evaluation from September 6, 2011, and a 90 percent evaluation from November 14, 2011. For the period from August 31, 2010 to September 5, 2011 following the directions set forth in 38 C.F.R. § 4.26 the Veteran's 10 percent rating for his right lower extremity radiculopathy is combined with his 10 percent rating for his left lower extremity radiculopathy which resulted in 19. 10 percent of 19 percent is taken and added, resulting in 20.9 percent, which is rounded to 20 percent. Then, following the directions set forth in 38 C.F.R. § 4.25 the 50 percent assigned for PTSD is combined with the 30 percent for bronchial asthma, resulting in 65 percent. The 65 percent is combined with the 20 percent assigned for his lumbar spine disability, resulting in 72 percent. The 72 percent is combined with the 20 percent rating for the Veteran's bilateral lower extremity radiculopathy calculated following the instructions set forth in 38 C.F.R. § 4.26, resulting in 78 percent. The 78 percent is combined with the 10 percent assigned for tinnitus, resulting in 80 percent. The 80 percent is combined with the 10 percent assigned for hearing loss, resulting in 82 percent. The Veteran's right hand disability continued to be rated as noncompensable. The resulting 82 percent is rounded to a combined rating of 80 percent. Therefore, the June 2016 rating decision accurately reflects the Veteran's proper combined rating was 80 percent from August 31, 2010. For the period of September 6, 2011 to November 13, 2011 following the directions set forth in 38 C.F.R. § 4.26 the Veteran's 20 percent rating for his left lower extremity radiculopathy is combined with his 10 percent rating for his right lower extremity radiculopathy which resulted in 28. 10 percent of 28 is taken and added, resulting in 30.8 percent, which is rounded to 30 percent. Following the directions set forth in 38 C.F.R. § 4.25 the 50 percent assigned for PTSD is combined with the 30 percent for bronchial asthma, resulting in 65 percent. The 65 percent is combined with the 30 percent rating for the Veteran's bilateral lower extremity radiculopathy calculated following the instructions set forth in 38 C.F.R. § 4.26, resulting in 76 percent. The 76 percent is combined with the 20 percent assigned for his lumbar spine disability, resulting in 81 percent. The 81 percent is combined with the 10 percent assigned for tinnitus, resulting in 83 percent. The 83 percent is combined with the 10 percent assigned for hearing loss, resulting in 85 percent. The Veteran's right hand disability continued to be rated as noncompensable. The resulting 85 percent is rounded to a combined rating of 90 percent. Therefore, the June 2016 rating decision accurately reflects the Veteran's proper combined rating was 90 percent from September 6, 2011. As for the period from November 14, 2011, following the directions set forth in 38 C.F.R. § 4.26 the Veteran's 20 percent rating for his right lower extremity radiculopathy is combined with his 20 percent rating for his left lower extremity radiculopathy which resulted in 36. 10 percent of 36 is taken and added, resulting in 39.6 percent, which is rounded to 40 percent. Following the directions set forth in 38 C.F.R. § 4.25 the 50 percent assigned for PTSD is combined with the 40 percent assigned for his lumbar spine disability, resulting in 70 percent. The 70 percent is combined with the 40 percent rating for the Veteran's bilateral lower extremity radiculopathy calculated following the instructions set forth in 38 C.F.R. § 4.26, resulting in 82 percent. The 82 percent is combined with the 30 percent for bronchial asthma, resulting in 87 percent. The 87 percent is combined with the 10 percent assigned for tinnitus, resulting in 88 percent. The 88 percent is combined with the 10 percent assigned for hearing loss, resulting in 89 percent. The 89 percent is rounded to a combined 90 percent. The Veteran's right hand disability continued to be rated as noncompensable. Therefore, the June 2016 rating decision accurately reflects the Veteran's proper combined rating was 90 percent from November 14, 2011. In August 2017 the Veteran was granted service connection for a cervical spine disability, which was assigned a 10 percent rating effective November 14, 2011. Following the directions set forth in 38 C.F.R. § 4.26 the Veteran's 20 percent rating for his right lower extremity radiculopathy is combined with his 20 percent rating for his left lower extremity radiculopathy which resulted in 36. 10 percent of 36 is taken and added, resulting in 39.6 percent, which is rounded to 40 percent. Following the directions set forth in 38 C.F.R. § 4.25 the 50 percent assigned for PTSD is combined with the 40 percent assigned for his lumbar spine disability, resulting in 70 percent. The 70 percent is combined with the 40 percent rating for the Veteran's bilateral lower extremity radiculopathy calculated following the instructions set forth in 38 C.F.R. § 4.26, resulting in 82 percent. The 82 percent is combined with the 30 percent for bronchial asthma, resulting in 87 percent. The 87 percent is combined with the 10 percent assigned for tinnitus, resulting in 88 percent. The 88 percent is combined with the 10 percent assigned for hearing loss, resulting in 89 percent. The 89 percent is combined with the 10 percent assigned for his cervical spine disability resulting in 90 percent. The Veteran's right hand disability continued to be rated as noncompensable. Therefore, the August 2017 rating decision accurately reflects the Veteran's proper combined rating was 90 percent from November 14, 2011. The statute and regulations governing the use of the ratings schedule are clear, and the RO has correctly determined the Veteran's combined ratings. As such, there is no basis upon which to overturn the currently assigned combined evaluations and an increased combined rating is not warranted. ORDER Entitlement to a combined rating in excess of 90 percent for the Veteran's service-connected disabilities is denied. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs