BVA9500130 DOCKET NO. 93-08 176 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a higher combined disability evaluation. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD J.R. King, Associate Counsel INTRODUCTION The appellant served on active duty from May 1966 to May 1968. This matter is before the Board of Veterans Appeals (Board) on appeal from a January 1993 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama, which established a 10 percent evaluation for the appellant's service-connected right hip condition. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains, in essence, that VA regulations governing the evaluations of service-connected disabilities have been misapplied. He avers that the award of a 10 percent evaluation by the RO in its January 1993 rating should have resulted in a higher amount of monthly benefits payment. He avers that the combined rating for his service-connected disorders should be higher than 40 percent given the compensable evaluation provided for traumatic arthritis of the right hip. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's claim of entitlement to a combined evaluation in excess of 40 percent for his service-connected disorders lacks legal merit. FINDINGS OF FACT 1. All evidence necessary for the equitable determination of the appellant's claim has been received by the RO. 2. Under the governing regulatory provisions, where individual service-connected disability ratings of 30, 10 and 10 percent have been assigned, a combined 40 percent evaluation for the appellant's service-connected disabilities is to be awarded. CONCLUSION OF LAW A higher combined evaluation for the appellant's service- connected disabilities is not warranted under the governing schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.25 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that insofar as the appellant claims an increase in service connected symptomatology, his claim is well-grounded in that it is plausible within the meaning of 38 U.S.C.A. § 5107 (a) (West 1991). This finding is based upon the appellant's evidentiary assertions and the documentary evidence of record. King v. Brown, 5 Vet.App. 19 (1993). In addition, the Board finds that all relevant facts are on file and that the VA has met its duty to assist him in the development of facts pertinent to his claim. Specifically, the appellant has been afforded the VA clinical evaluation necessary to accurately evaluate the status of his service-connected disabilities. Moreover, these disabilities have been rated under the VA's Schedule for Rating Disabilities, 38 C.F.R., Part 4 (1993). The agency of original jurisdiction has assigned percentage ratings for these disabilities, and the appellant has not raised any contention with respect to the degrees of disability or the ratings assigned. The governing laws and regulations provide that disability ratings shall be based on the average impairment in earning capacity resulting from injuries in civil occupations. The schedule is constructed so as to provide 10 grades of disability and no more, upon which payments of compensation can be based. 38 U.S.C.A. § 1155 (West 1991). The formula used to calculate the degree of disability caused by a service-connected disorder is based on the consideration of the efficiency of the individual as affected first by his or her most disabling condition, then by the less disabling conditions, if any, in the order of their severity. Thus, for instance, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability s to leave only 70 percent of the efficiency remaining after the consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled. A ratings table is used to determine the combined value of the various disabilities, after which the combined level of disability is converted to the nearest degree divisible by 10. If there are more than two disabilities, they are to be arranged in the exact order of their severity and the combined value for the first two will be found as previously described. The combined value, as found in the ratings table, will be combined 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, and if there are only 3 disabilities, they are then to be converted to the nearest degree divisible by 10, adjusting final 5's upward. Thus, if there are three disabilities ratable at 60 percent, 40 percent and 20 percent, respectively, the combined value for the first two will be found opposite 60 ad under 40. This rating of 76 percent is then combined with 20 and the combined value is 81 percent. The combined value will be converted to the nearest degree divisible by 10, which is 80 percent. The same procedure will be employed when there are four or more disabilities. 38 C.F.R. § 4.25 (1993). In the case at bar, the appellant's disabilities have been evaluated as 40 percent disabling in combination. This combined rating was arrived at by use of the above described ratings table. Specifically, a 30 percent evaluation has been assigned for a splenectomy. This evaluation was combined with a 10 percent evaluation which has been assigned for a scar of the chin. The resulting 37 percent is then combined with the 10 percent evaluation assigned for arthritis of the right hip. The combined value, 43, was converted to 40, the nearest degree divisible by 10. The United States Court of Veterans Appeals (Court) held, in Harvey v. Brown, 6 Vet.App. 416 (1994), that statutory interpretation begins with the language of the statute, and it may well end with the statutory language when it is clear and unambiguous on its face. Citing Texas Instruments v. U.S. International Trade Commision, 988 F.2d 1165, 1180 (Fed. Cir. 1993); M.A. Mortenson Co. v. United States, 966 F.2d 1177, 1181 (Fed. Cir. 1993); Gardner v. Derwinski, 1 Vet.App. 584 (1991), aff’d sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993); cert. granted, ___ U.S. ___, 114 S. Ct. 1396 (1994). In Sabonis v. Brown, 6 Vet.App. 426 (1994), the Court noted that only where a statute's plain meaning leads to an absurd result that Congress clearly could never have intended is the "plain meaning" rule abandoned for a review of the application of the applicable legislative history and statutory construction. In this case, the statute and regulations governing the use of the ratings schedule are clear in both their intent and in the results produced by their application. Specifically, the application of the ratings schedule has been set forth by statute as the means by which to achieve accurate, objectively obtained disability percentage ratings. The combined rating formula, set forth by regulation, has been exercised in the appropriate fashion by rating authorities. As such, there is no basis upon which to overturn the currently assigned 40 percent combined evaluation. As the Court noted in Sabonis, where the law is dispositive of the issue on appeal, the claim lacks legal merit. Id. at 430. ORDER The appellant's claim of entitlement to a combined evaluation in excess of 40 percent is denied. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.