Sending In Form 9

[JT24usn]

Dro went as expected. Rubber stamped. Now on to BVA. Hoping for better results.

Issue. Pyramid 7318 and 7328 at the higher rate. From 20 to 40%. 38 cfr 4.114. We shall see. Tick tock tick tock

[JT24usn]

Carlie,

I thought one of the requirents to get 50 percent was based on how my disabilities effect my social an occupational. I was just referring BVA to see what I ha said caused my anxiety. ie not making it To the bathroom. Constant diarrhea, bloating from eating foods which effects my relationship with my wife. Having to answer questions and then excusing myself before I am through due to having to go to the restroom. Being l, at the time 25 years old and having to worry about what I eat instead of thinking about some regular 25 year old would think about. Either way, the question was never asked at the cp and the doctor just marked no for social impairment.

I also went through the cp step by step and rebutted what was put in and what the doctor neglected to put in when he asked me.

The malabsorption is a bid deal. It doesn't prove malnutrition but again. Not sure how I am being penalized for doing preventative maintenance by taking vitamin d. Vitamin b and increasing calorie intake to maintain weight

[JT24usn]

Do you think there is a snowballs chance with the information I have given. That is, once it is put into some kind of order.

How much weight does Internet sites have?

Does lay statements help at all?

Would I be ok showing how much sick leave was taken due to illness, or does that not carry much weight?

They are supposed to look at the file from bottom to top; however, I woulnt be in this predicament if that was the case. Should I make it easy for them and resubmit duplicates, or would they just return them?

This is my first and hopefully last round with BVA. I am having them lock up my file after this one, if it favorable. Meaning increase from 20% to 30 or 40%.

[carlie]

Do you think there is a snowballs chance with the information I have given. That is, once it is put into some kind of order.

I say just about any claim is a 50/50 shot.

That includes claims where a vet has had a missile injury would

and still has embedded fragments in his brain.

How much weight does Internet sites have?

IMO - absolutely NONE, unless they refer specifically to the claimant.

Does lay statements help at all?

Yes, they can if they relate to symptoms someone states they see/help provide care for,

just be sure they don't mention diagnosis.

Would I be ok showing how much sick leave was taken due to illness, or does that not carry much weight?

Definitely - even better if backed up with medical evidence of a trip to your doc or ER that day - due to the

same disability.

They are supposed to look at the file from bottom to top; however, I woulnt be in this predicament if that was the case.

Apparently you did not take any documentation to the C&P exam with you supporting work had been impacted.

If so - then ya'll probably would have discussed it.

Should I make it easy for them and resubmit duplicates, or would they just return them?

I would not bother submitting duplicates of anything that has already been listed in the evidence section.

This is my first and hopefully last round with BVA. I am having them lock up my file after this one, if it favorable. Meaning increase from 20% to 30 or 40%.

[JT24usn]

I did take information to the cp. that is what was irritating. I had a feeling since it was an increase my folder wouldn't be there. I brought all my labs showing anemia, low blood sugar, vitamin d deficiency, low vitamin b, elevated bilirubin, and a gastro note which specifically said post chocystectomy with bile and complications from illegal resection. I gave all of this to examiner. I the got a copy of my cp and argued that none was mentioned almond with social impairment. The Dro picked and choose.

[JT24usn]

I found this case that is identical to my. Same symptoms and everything. She got her 30 percent. Can I use this for my case? Any opinions are greatly appreciated.

Citation Nr: 1100809

Decision Date: 01/07/11 Archive Date: 01/14/11

DOCKET NO. 09-22 391 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in St. Petersburg,

Florida

THE ISSUES

1. Entitlement to a compensable rating for residuals of a

cholecystectomy.

REPRESENTATION

Veteran represented by: T. Rhett Smith, Attorney

ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1987 to

September 1989.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from

February and June 2008 decisions of the Department of Veterans

Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

FINDINGS OF FACT

1. Since filing the claim for a higher rating in August 2007,

the residual symptoms of the cholecystectomy have been severe -

including recurrent abdominal pain, tenderness, constipation,

diarrhea, gas, and nausea.

The existing 0 percent rating for this disability is under 38

C.F.R. § 4.114, DC 7318, for removal of the gall bladder. Under

this code, this rating is warranted when the disability is

nonsymptomatic. A higher 10 percent rating is warranted when

there are mild symptoms, and an even higher 30 percent rating,

which as mentioned is the highest possible rating under this

code, is warranted for severe symptoms.

Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345

to 7348, inclusive, will not be combined with each other. A

single disability rating will be assigned under the DC that

reflects the predominant disability picture, with elevation to

the next higher rating where the severity of the overall

disability warrants such elevation. 38 C.F.R. § 4.114.

During her November 2007 VA examination, the Veteran reported

experiencing pain in the right upper quadrant of her abdomen.

She stated the pain occurred every other day and lasted for a few

hours. She indicated the pain was often triggered by eating.

She was then currently taking medication for her cholecystectomy

residuals, which she said helped but did not alleviate all of her

symptoms. She also indicated that, if she stopped taking the

medications, the pain would persist throughout the day on a daily

basis. She also reported experiencing recurrent nausea, though

not actually vomiting.

In April 2009, the Veteran had a physical examination by W.C.W.,

a private physician. Dr. W.C.W. determined the Veteran had mild

tenderness diffusely in her abdomen. Dr. W.C.W. diagnosed a

"history of cholecystectomy with residual complications." In a

supporting statement that same month, Dr. W.C.W. indicated he was

familiar with the Veteran's medical history. And as evidenced by

his underlining of the relevant criteria, Dr. W.C.W. then

confirmed the Veteran had "severe symptoms." He indicated that

the residuals of her cholecystectomy, along with her irritable

bowel syndrome, "greatly interfere[d] with her daily

activities."

Recent VA and private outpatient treatment records further

document the Veteran's complaints of recurrent pain in her

abdomen, constipation, diarrhea, and gas. These records also

document tenderness in her abdomen.

So based on these findings, the Board concludes the Veteran is

entitled to a higher 30 percent rating for her cholecystectomy

residuals. Her symptoms, as mentioned, are "severe," so

warrant assignment of this higher rating. 38 C.F.R. §§ 4.3, 4.7.

There is no possible greater rating under DC 7318 or

alternatively under DCs 7314 (for chronic cholecystitis) or 7319

(for irritable colon, i.e., bowel syndrome), keeping mind that

the Veteran is entitled to only one rating under these codes

representing the predominant disability. Her disability has

never been more than 30-percent disabling since filing her August

2007 claim, so the Board cannot "stage" this rating. See Hart

v. Mansfield, 21 Vet. App. 505 (2007). Since, however, she has

met the criteria for this higher 30 percent rating under DC 7318

since filing her claim on August 31, 2007, this rating will be

retroactive to this date of receipt of her claim. See Harper v.

Brown, 10 Vet. App. 125, 126 (1997) (discussing the three

possible effective dates that may be assigned depending on the

facts of the case: (1) if an increase in disability occurs after

the claim is filed, the date that the increase is shown to have

occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2)

if an increase in disability precedes the claim by a year or

less, the date that the increase is shown to have occurred

(factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an

increase in disability precedes the claim by more than a year,

the date that the claim is received (date of claim) (38 C.F.R. §

3.400(o)(2)).

Because she now has the highest possible schedular rating for

this disability under DC 7318, the Board must additionally

consider whether she is entitled to even greater compensation on

an extra-schedular basis under the provisions of

38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337

(1996). This additional discussion is later in this decision.

Edited June 23, 2012 by T8r

[JT24usn]

How much weight would a previous BVA decision carry. I think I know the answer, but when common sense plays a factor, well...