MOUTH INJURIES OF

Summary

The Veteran, an Army Veteran who served from November 1989 to June 2005, appeals the disability rating for residuals of gall bladder removal. Service connection for this condition was previously established. The Veteran sought an increased rating beyond the initial noncompensable evaluation. The Board reviewed the Veteran's medical history, including VA examinations from June 2011 and May 2013, and VA treatment records. The June 2011 examination noted mild symptoms like nausea and diarrhea, but the examiner found no residuals and that symptoms began only six months prior. The May 2013 examination diagnosed Gilbert's disease and hyperbilirubinemic status post cholecystectomy, attributing elevated bilirubin to the surgery rather than a genetic disorder. The Board found the Veteran competent to report observable symptoms like gas and nausea, but not to assign disability ratings. The Board considered the Veteran's subjective complaints of increased symptomatology but found the medical evidence more probative. Resolving doubt in the Veteran's favor, the Board found the residuals more closely approximated the criteria for a 10 percent rating, denying entitlement to a higher rating due to lack of severe symptoms documented in the record. The Board noted the Veteran's existing 10 percent rating for gastritis with gastroesophageal reflux disease, which also included abdominal distention.

Rationale

Mild symptoms of nausea, diarrhea, and elevated bilirubin post-cholecystectomy.; Medical evidence more probative than Veteran's subjective complaints of increased symptomatology.; Resolving doubt in Veteran's favor, symptoms approximate criteria for 10 percent rating.

Full Decision Text

Citation Nr: 22036372
Decision Date: 06/23/22	Archive Date: 06/23/22

DOCKET NO. 15-27 269
DATE: June 23, 2022

ORDER

Entitlement to an initial rating of 10 percent, but no higher, for service-connected gall bladder residual is granted.

FINDING OF FACT

The Veteran's residuals from his gall bladder removal are manifested by mild symptoms.

CONCLUSION OF LAW

The criteria for entitlement to a rating of 10 percent, but no higher, for residuals of a gallbladder removal are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code (DC) 7318.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from November 1989 to June 2005.

The Veteran was granted service connection for gall bladder residuals in a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  The RO assigned a noncompensable disability rating effective June 1, 2011.  The Veteran properly appealed the decision as to the disability rating.  The Veteran requested a hearing in his July 2015 VA Form 9.  A hearing was scheduled and the Veteran and his representative, who were properly notified, failed to appear.

Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant.  38 C.F.R. § 4.3.

While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied.  Fenderson v. West, 12 Vet. App. 119 (1999).

In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

The Veteran's residuals of his gall bladder removal are currently rated under DC 7318, which pertains to residual symptoms after gall bladder removal.  Under DC 7318, a noncompensable evaluation is warranted for the non-symptomatic residuals of removal of the gall bladder, a 10 percent evaluation is warranted where there are mild symptoms, and a 30 percent rating is warranted where there are severe symptoms.

The Board notes that words such as "mild," "moderate," and "severe" are not defined in the rating schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.  See 38 C.F.R. § 4.6.  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

A review of the Veteran's medical history shows that he underwent a cholecystectomy (removal of the gall bladder) in 2004.  The Veteran was provided VA examinations in June 2011 and
 than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.  See 38 C.F.R. § 4.6.  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

A review of the Veteran's medical history shows that he underwent a cholecystectomy (removal of the gall bladder) in 2004.  The Veteran was provided VA examinations in June 2011 and May 2013.  During the June 2011 VA examination, the Veteran reported nausea, diarrhea, and abdominal distention.  The Veteran reported he still took medication daily to control this condition and was cautious about his diet.  Upon examination, the examiner found the Veteran did not suffer from any residuals and the Veteran's reported symptoms only began six months prior to this examination.  See June 2011 VA Examination.  The Board notes that the Veteran is also service-connected for gastritis with gastroesophageal reflux disease rated as 10 percent disabling, with abdominal distension rated under that criteria.  

During the May 2013 VA examination, the examiner noted a diagnosis of Gilbert's disease and hyperbilirubinemic status post cholecystectomy.  The examiner found the Veteran had normal bilirubin levels prior to his cholecystectomy in 2004.  Thereafter, the Veteran was found to have elevated bilirubin.  As such, the examiner found that his elevated bilirubin is due to an overproduction of bilirubin as a result of his cholecystectomy and not due to a genetic disorder, such as Gilbert's disease.  

The Veteran's VA treatment records do not show more severe symptoms than those noted on VA examinations.  The Board has considered the statements of the Veteran that he experiences symptoms related to his gall bladder removal, including gas and nausea.  The Veteran is competent to report his observable symptoms, such as gas and nausea.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  As such, the Board finds that the Veteran is entitled to a 10 percent rating, but no higher, based on his reported symptoms and the finding of elevated bilirubin as a result of his gall bladder removal.  

While the Veteran is competent to report what he experiences, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes.  The medical evidence of record does not demonstrate pain or other symptoms that manifest in excess of mild severity.  To the extent that the Veteran contends he is entitled to a rating in excess of 10 percent, the Board finds the medical record to be more probative than the Veteran's subjective complaints of increased symptomatology.

(Continued on the next page)

 

For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's symptoms from chronic cholecystitis with gall bladder removal more closely approximate the criteria for a 10 percent rating, but no more.  See 38 C.F.R. §§ 4.3, 4.7.  The Board finds that the evidence weighs against a finding that the criteria for a rating in excess of 10 percent under DC 7318 are met or approximated for any period.  During the period on appeal, the Veteran's symptoms were not severe as required for the next higher rating of 30 percent.  His VA treatment records do not show any sustained symptomatology related to his gall bladder removal, much less severe symptoms.  As such, the Board finds that the evidence weighs against awarding a rating higher than 10 percent.  38 C.F.R. § 4.104, DC 7318.

 

 

L. BARSTOW

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Glaeser, Jennifer

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.