38 Cfr 4.7. Can An Appeal Han On One Word?

[JT24usn]

I am arguing with the va over a word. "nearly". I am asking that I be granted the 40 percent under dc 7328 due to having all other issues other than weight loss. This meaning that I "nearly" meet te requirements for 40% instead of 20%. Also, due to pyramiding I am combined with 7318 and 7328. Meaning these two would even inch me nearer to the 40%. Under 4.14 and 4.7. Any input would be greatly appreciated.

4.7 - Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

4.14 - Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

7318 ​Gall bladder, removal of:

 

​With severe symptoms​30

​With mild symptoms​10

​Nonsymptomatic​0

​Spleen, disease or injury of.  

​See Hemic and Lymphatic Systems.

7328 ​Intestine, small, resection of:

 

​With marked interference with absorption and nutrition, manifested

​by severe impairment of health objectively supported by

​examination findings including material weight loss​60

​With definite interference with absorption and nutrition, manifested

​by impairment of health objectively supported by examination

​findings including definite weight loss​40

​Symptomatic with diarrhea, anemia and inability to gain weight​20

 

​Note: Where residual adhesions constitute the predominant disability, rate under diagnostic code 7301.

 

Edited July 3, 2012 by T8r

[JT24usn]

Sorry I

Meant can the appeal hang on one word?

[Philip Rogers]

That would depend on many factors, the first being the definition of nearly. jmo

pr

[JT24usn]

That is what I am hoping. Along with benefit of doubt. Again only difference between my 20 and 40% is weight loss. All other conditions match up per recent cp exam I had 5/12.

[john999]

If an exam said you were able to work when, in fact, you are unable to work then your rating would hand on the word able/unable.