Citation Nr: A21013583 Decision Date: 08/12/21 Archive Date: 08/12/21 DOCKET NO. 210520-164374 DATE: August 12, 2021 ORDER Entitlement to additional retroactive payments based on the grant of service connection for sleep apnea in a February 2021 rating decision is denied. FINDINGS OF FACT 1. In a February 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for sleep apnea, effective March 21, 2017. 2. At the time of the February 2021 rating decision, the Veteran was already in receipt of Department of Veterans Affairs (VA) compensation benefits at the 100 percent rate, effective March 23, 2016, due to service-connected posttraumatic stress disorder (PTSD). 3. The Veteran does not have a single service-connected disability rated as 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. CONCLUSION OF LAW The claim for additional retroactive payments as a result of the grant of service connection for sleep apnea in a February 2021 rating decision lacks legal merit. 38 U.S.C. §§ 1114, 1115, 5111; 38 C.F.R. §§ 3.4, 3.21, 3.31, 3.323, 3.350, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1963 to June 1965 and from September 1965 to August 1968, to include service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2021 determination (audit) by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed to the Board by submitting a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement) that same month, requesting direct review of the evidence considered by the AOJ at the time of the May 2021 determination. 38 C.F.R. §§ 20.201, 20.202(b)(1). Entitlement to additional retroactive benefits based on the grant of service connection for sleep apnea in a February 2021 rating decision The Veteran asserts that he did not receive any retroactive payments following a February 2021 rating decision that determined he was entitled to service connection and a 50 percent rating for sleep apnea, effective March 21, 2017. He has expressed that he does not understand why he was not entitled to back pay from the effective date of the award of service connection. The rates of disability compensation are specified in 38 U.S.C. § 1114, as increased from time to time. See 38 C.F.R. § 3.21 (compensation benefit rates are published in tabular form in appendix B of VA Adjudication Procedures Manual (M21-1) and are given the same force and effect as if published in the Code of Federal Regulations); see also Veterans Benefits Administration, "VA Compensation Benefit Rates," https://www.benefits.va.gov/compensation/rates-index.asp (last visited August 11, 2021). The commencement of payment of monetary benefits based on an increased award of compensation is the first day of the calendar month following the month in which the award became effective. 38 U.S.C. § 5111; 38 C.F.R. § 3.31. 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." 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 could result in a rating greater than 100 percent, which is impermissible. The combined ratings table at § 4.25 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. The February 2021 rating decision did, in fact, find that the Veteran was entitled to a 50 percent rating for his sleep apnea, effective March 21, 2017. However, at the time of the February 2021 rating decision, he was already in receipt of VA compensation benefits at the 100 percent rate, effective March 23, 2016, due to service-connected PTSD. That is the maximum percentage rating payable under the law. See 38 C.F.R. § 4.25 (illustrating that the maximum combined rating for two or more disabilities can be no more than 100 percent). The Board notes that certain combinations of percentage ratings can warrant payment of additional compensation, known as special monthly compensation (SMC). SMC is payable at what is referred to as the "housebound rate," for example, if a claimant has a single service-connected disability rated as 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In this case, however, the Veteran's combination of disabilities does not satisfy those requirements. In view of the foregoing, the Board must find that additional retroactive payments based on the grant of service connection for sleep apnea in the February 2021 rating decision are not warranted. The law does not permit it. In such cases, where the evidence is not in dispute, and the law is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.