Citation Nr: 18160449
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-02 665
DATE:	December 26, 2018
ORDER
An evaluation in excess of 10 percent for residuals of left tibia and fibula fracture is denied.
REMANDED
An effective date prior to August 28, 2013 for the grant of service connection for residuals of tibia and fibula fracture is remanded.
FINDING OF FACT
The assignment of a rating in excess of 10 percent for residuals of left tibia and fibula fracture is precluded as a matter of law as his left lower extremity has a combined rating of 60 percent, which is the maximum evaluation allowed for a knee amputation at the knee level.

CONCLUSION OF LAW
The assignment of a disability evaluation in excess of 10 percent for left tibia and fibula fracture right knee disability is precluded as a matter of law.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5162; Sabonis v. West, 6 Vet. App. 426, 430 (1994).
REASONS AND BASES FOR FINDING AND CONCLUSION
An evaluation in excess of 10 percent for residuals of tibia and fibula fracture.
The Veteran contends that residuals of tibia and fibula fracture warrant a higher evaluation.
The question for the Board is whether an evaluation in excess of 10 percent for residuals of tibia and fibula fracture would violate 38 C.F.R. § 4.68 (the amputation rule) given that the Veteran has other ratings for the left lower extremity.
The Board concludes that an evaluation in excess of 10 percent for residuals of tibia and fibula fracture is not warranted as a matter of law as such would violate 38 C.F.R. § 4.68 (the amputation rule), which precludes a combined disability evaluation higher than 60 percent for the Veteran’s residuals of tibia and fibula fracture.  38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5162.
By VA regulation, the combined evaluation for disabilities of an extremity shall not exceed the evaluation for the amputation at the elective level, were amputation to be performed.  38 C.F.R. § 4.68.  Combined ratings are not calculated by adding up the various percentages and coming to a sum, but rather, a combined rating is determined by the Combined Ratings Table found in 38 C.F.R. § 4.25.
In relation to amputations of the lower extremity, a 60 percent disability rating is assigned for amputation of the thigh at the middle or lower thirds, as measured from the perineum to the knee.  38 C.F.R. § 4.71a, Diagnostic Code 5162.  As such, pursuant to the “amputation rule,” the combined disability rating for disabilities of the Veteran’s left lower extremity may not exceed 60 percent.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5162.
In this case, the Veteran’s left lower extremity disabilities have separate ratings that combine to be 60 percent.  In this regard, there is a 10 percent rating for residuals of left tibia and fibula fracture, with slight knee or ankle disability (38 C.F.R. § 4.71a, Diagnostic Code 5262); a 40 percent rating for loss of use of left foot, as secondary to residuals of tibia and fibula fracture (38 C.F.R. § 4.71a, Diagnostic Code 5167); and a 30 percent for surgical scars from surgery to repair the left tibia and fibula fracture (38 C.F.R. § 4.118, Diagnostic Code 7804).  Under the VA Combined Ratings Table, found at 38 C.F.R. § 4.25, the left lower extremity presently has a combined rating of 60 percent.
As a matter of law, the Veteran is not entitled to a higher evaluation for left tibia/fibula fracture as this would violate the amputation rule, as explained above.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5162.
Accordingly, the claim is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
REASONS FOR REMAND
Entitlement to an effective date earlier than August 28, 2013 for the grant of service connection for left tibia/fibula fracture is remanded.
Regarding the claim of entitlement to an effective date earlier than August 28, 2013 for the grant of service connection for left tibia/fibula fracture, the Veteran submitted a timely notice of disagreement with a July 2014 rating decision, but a statement of the case has not yet been issued.  A remand is required for the originating agency to issue a statement of the case in that matter.  38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
The matter is REMANDED for the following action:
Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an effective date earlier than August 28, 2013 for the grant of service connection for left tibia/fibula fracture.  If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration.
 
C.A. SKOW
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Thaddaeus J. Cox, Associate Counsel 

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