Citation Nr: 21010348 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-06 582 DATE: February 24, 2021 ORDER Entitlement to separate compensable disability ratings for the Veteran’s service-connected disabilities of obstructive sleep apnea and asthma are denied. FINDING OF FACT Regulations explicitly preclude the assignment of a separate rating for sleep apnea and asthma in this case. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for service-connected obstructive sleep apnea and asthma are not met; and separate ratings for sleep apnea and asthma are precluded by law. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Code 6602-6847 2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1991 to September 2001. This matter comes before the Board of Veterans’ Appeals (Board) from the January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a January 2021 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to separate compensable disability ratings for the service connected disabilities of sleep apnea and asthma The Veteran contends that his service-connected sleep apnea and asthma were improperly combined into a single rating. The record indicates the Veteran was originally assigned separate ratings for his sleep apnea and asthma. However, pertinent regulatory provisions explicitly preclude such separate ratings. Therefore, in a January 2018 rating decision, the Veteran’s service-connected sleep apnea and asthma were combined into a single rating. The Board notes the Veteran’s asthma is evaluated under Diagnostic Code 6602 and sleep apnea is evaluated under Diagnostic Code 6847. The controlling portion of 38 C.F.R. § 4.96 (a) states, “Rating coexisting respiratory conditions. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, rating under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic code 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation....” 38 C.F.R. § 4.96 (a) (emphasis added). The Veteran’s sleep apnea and asthma are rated under DCs 6847 and 6602 respectively. Absent an expressly defined term within a statute, “a fundamental canon of statutory construction is that when interpreting a statute, the words of a statute are given “their ordinary, contemporary, common meaning.” See Gordon v. Nicholson, 21 Vet. App. 270, 277 (2007). The canons of statutory construction apply to regulations as well as statutes. See Smith (William) v. Brown, 35 F.3d 1516, 1522 (Fed. Cir. 1994). Hence, a plain reading of the language under 38 C.F.R. § 4.96 (a) gives no indication of any alteration or limitation of the express language quoted above. To the extent that the Veteran has asserted that the assignment of separate disability ratings under Diagnostic Code 6602 and 6847 would not amount to impermissible pyramiding, such argument is unavailing. The Board recognizes that the evidence of record supports a finding that his service-connected respiratory illnesses present distinct manifestations. That notwithstanding, the Board is bound by 38 C.F.R. § 4.96 (a), which specifically prohibits the assignment of separate evaluations for sleep apnea and asthma. (Continued on the next page)   The Board is sympathetic to the Veteran’s assertions. Nonetheless, given the binding nature of the applicable statutory and regulatory provisions recited above, the Board has no option but to conclude that separate disability ratings for the Veteran’s service-connected respiratory disabilities is not warranted. In this regard the Board does not have the authority to grant the Veteran’s claim on an equitable basis, and instead is constrained to follow the specific provisions of the controlling law and regulations. See 38 U.S.C. § 7104 (2012); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.