Citation Nr: 21021631 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-19 572A DATE: April 13, 2021 ORDER The combined disability rating of 40 percent for the Veteran’s service-connected disabilities assigned in a February 2016 rating decision was proper. FINDING OF FACT In its February 2016 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) correctly calculated the Veteran’s combined disability rating of 40 percent for his service-connected disabilities. CONCLUSION OF LAW The combined disability rating of 40 percent is calculated properly as of February 2016. 38 U.S.C. §§ 1155, 1157, 5107 (2012); 38 C.F.R. § 4.25 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the U.S. Marine Corps from June 1997 to June 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In his appeal, the Veteran challenged the propriety of the combined disability rating of 40 percent calculated by the RO in this rating decision. The Board notes initially that, unchanged since 1945, the “Combined Ratings” regulation, 38 C.F.R. § 3.323, directs that “[w]hen there are two or more service-connected compensable disabilities a combined evaluation will be made following the tables and rules prescribed in the 1945 Schedule for Ratings Disabilities.” See 38 C.F.R. § 3.323(a)(1). The combined ratings table in § 4.25 is one such table. 29 Fed. Reg. 6718-01. In creating this table, VA recognized that arithmetically adding disability ratings may result in a rating greater than 100 percent which is impermissible. Instead, the combined ratings table is designed to capture “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. Each disability receives its own rating, and then the multiple ratings are combined using the formula in 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 combined rating then dictates the appropriate monthly compensation. Gazelle v. McDonald, 27 Vet. App. 461 (2016). As relevant, a “bilateral factor” applies. 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. 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. Id. 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. Id. 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. Id. The use of the terms “arms” and “legs” is not intended to distinguish between the arm, forearm and hand, or the thigh, leg, and foot but relates to the upper extremities and lower extremities as a whole. 38 C.F.R. § 4.26(a). Thus, with a compensable disability of the right thigh, for example, amputation, and one of the left foot, for example, pes planus, the bilateral factor applies, and similarly whenever there are compensable disabilities affecting use of paired extremities regardless of location or specified type of impairment. Id. The correct procedure when applying the bilateral factor to disabilities affecting both upper extremities and both lower extremities is to combine the ratings of the disabilities affecting the 4 extremities in the order of their individual severity and apply the bilateral factor by adding, not combining, 10 percent of the combined value thus attained. 38 C.F.R. § 4.26(b). The Veteran asserts that, at the time of the February 2016 rating decision in which service connection was in effect for gastroesophageal reflux (GERD) at a 10 percent rating, his combined disability rating should have been 50 percent. See March 2016 notice of disagreement (NOD). Specifically, he asserts that the 10 percent rating for his service-connected GERD, which was assigned in the February 2016 rating decision, combined with his service-connected disabilities of left knee patellofemoral pain syndrome, bilateral pes planus with plantar fasciitis, bilateral tinnitus, and eczematous dermatitis of the back, each rated as 10 percent disabling, should have resulted in a combined rating of 50 percent. The Board acknowledges the Veteran’s contention that his overall or combined disability rating should be higher. As outlined above, disability percentages are not added up to arrive at the level of disability. To do so would result in the anomalous result of combined disability ratings greater than 100 percent. 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 disability rating of 40 percent was calculated properly at the time of a February 2016 rating decision. At that time, each of the Veteran’s five service-connected disabilities were rated as 10 percent disabling. The RO calculated the combined disability rating correctly as 40 percent. Because the Veteran challenges the propriety of the 40 percent combined disability rating at the time of a February 2016 rating decision, the Board will explain in detail how VA arrived at this combined disability rating in February 2016. First, the Board will calculate the bilateral factor for the extremities, including left knee patellofemoral pain syndrome and bilateral pes planus with plantar fasciitis, each rated as 10 percent disabling. When combining 10 percent for left knee patellofemoral pain syndrome with 10 percent for bilateral pes planus with plantar fasciitis, the combined rating is 19. When adding 10 percent of 19, or 1.9, the combined rating with bilateral factor is 21. Next, combining 21 with the 10 percent rating for bilateral tinnitus, the rating is 29. When combining 29 with the 10 percent rating for eczematous dermatitis of the back, the rating is 36. Finally, when combining 36 with the 10 percent rating for GERD, the rating is 42. The 42 percent overall rating rounded down to the nearest 10 percent is 40 percent. Thus, the 40 percent combined rating assigned by the RO at the time of the February 2016 rating decision is correct under the current law. The Board also finds that there is no discernable error in the RO’s calculation of the combined disability rating of 40 percent as of February 2016. Thus, the Veteran’s claim is denied. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate 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.