Citation Nr: 21065321 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-15 721 DATE: October 25, 2021 ORDER Entitlement to an initial disability evaluation of 30 percent disabling for residuals of cholecystectomy, claimed as gallbladder removal, is granted. FINDING OF FACT The Veteran's residuals of cholecystectomy manifest in severe gastrointestinal symptoms. CONCLUSION OF LAW The criteria for an initial 30 percent disability evaluation for cholecystectomy have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7318 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from May 1989 to August 1989, with Army from October 1991 to June 1999, and with the United States Air Force from July 1999 to September 2012. In November 2018, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. This matter was previously before the Board in January 2021 but was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the AOJ was directed to obtain a medical opinion regarding whether the Veteran's reported gastrointestinal symptoms are residuals of his service-connected cholecystectomy. The required medical opinion was obtained and associated with the claims file in July 2021. The VA opinion is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his residuals of cholecystectomy in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). During pendency of this appeal, the September 2020 VA Regional Office (RO) rating decision increased from noncompensable (0 percent) to 10 percent the evaluation for cholecystectomy, effective September 15, 2020. An August 2021 Rating Decision reassigned the effective date for the grant of a 10 percent disability rating to October 1, 2012. The claim for still higher schedular rating continues on appeal where here absent express withdrawal of that issue. See AB v. Brown, 6 Vet. App.35 (1993). The Board also remanded a claim for service connection for a right foot disability. The claim was granted in an August 2021 rating decision. Because the benefit was granted in full, that issue is no longer before the Board. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial disability evaluation in excess of 10 percent disabling for cholecystectomy, claimed as gallbladder removal Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's cholecystectomy was evaluated under Diagnostic Code 7318, the rating criteria for removal of the gallbladder, a 10 percent rating is warranted for removal of the gallbladder with mild symptoms; and a maximum 30 percent rating is warranted for removal of the gallbladder with severe symptoms. 38 C.F.R. § 4.114. Words such as "moderate" and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Veteran underwent a VA examination for his cholecystectomy residuals in September 2020. He described his symptoms as daily bowel movements, diarrhea, reflux, needing to eat very slowly, and vomiting if he ate too fast. He stated that he had to plan his day around bathroom access and completely change his diet. The examiner noted that the Veteran's cholecystectomy symptoms were mild. The Veteran reported in his December 2013 Notice of Disagreement (NOD) various gastrointestinal problems, including frequent diarrhea and the inability to eat many foods. In his April 2016 VA Form 9, he reported diarrhea, stomach pain, and needing to use the bathroom frequently. At a November 2018 hearing, the Veteran testified that he had indigestion, diarrhea, and was unable to eat certain foods. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. The Veteran's lay statements regarding his symptoms have been consistent over time and are credible. In a July 2021 VA medical opinion, the VA examiner opined that the Veteran's nausea, diarrhea, vomiting, discomfort, fullness, heartburn and acid reflux are all symptoms of no longer having a gallbladder. The examiner also noted that the Veteran's symptoms may continue to persist for many years. (Continued on the next page) Based on the Veteran's lay statements regarding his symptoms and the medical evidence discussed above. The Board finds that the Veteran's residuals of cholecystectomy manifest in severe gastrointestinal symptoms during the entire period on appeal. Accordingly, entitlement to an initial 30 percent disability evaluation is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7318. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, Counsel 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.