Precedential Decision: Separate Evaluation for Left Knee Disability
Summary of the Case
Mr. Lyles served on active duty in the United States Army from March of 1987 to July of 1990. During service, he injured his left knee and underwent a partial lateral meniscectomy with anterior cruciate ligament (ACL) reconstruction. Mr. Lyles first applied for service-connected compensation for his left knee disability in August of 1990. In February of 1991, he was granted service connection with an evaluation of 10 percent under Diagnostic Code (DC) 5257. His disability rating was later increased to 20 percent in March of 1996, and 30 percent in July of 1998. Subsequently, in April of 2001 Mr. Lyles filed another increased rating claim, but was denied. He appealed this denial all the way to the Court of Appeals for Veterans Claims (CAVC), which, in October of 2014, remanded the case back to the Board for readjudication. Ultimately, the Board continued to deny his claim.
Board denies separate evaluation for left knee disability
In January of 2016, the Board issued a decision denying an increased rating based on separate evaluations for Mr. Lyles’ left knee disability. The Board found that DC 5258 did not apply to Mr. Lyles’ claim because the evidence of record did not reflect dislocation of the semilunar cartilage. Instead, the Board determined that DC 5259 applied as there was evidence of the removal of semilunar cartilage. Nonetheless, the Board determined that a separate evaluation under DC 5259 was not warranted. While the Board acknowledged Mr. Lyles’ symptoms such as popping, locking, grinding, pain, swelling, looseness, and giving way or falling could be related to semilunar cartilage removal, it held that each of those symptoms was already encompassed by his current evaluation under DC’s 5257 and 5261. Specifically, the Board indicated that the above-mentioned manifestations of the Veteran’s left knee disability had been attributed to his instability and were the very symptoms that formed the basis for his 30 percent evaluation under DC 5257 and 5261. The Board concluded that a separate evaluation under DC 5258 or 5259 would constitute pyramiding.
CCK presents an oral argument at Court
CCK successfully appealed to the CAVC the Board decision that denied a separate evaluation for Mr. Lyles’ left knee disability. In August of 2017, CCK delivered an oral argument before the Court in Washington, D.C. CCK argued that the Board erred in finding that Mr. Lyles’ 30 percent evaluation under DC’s 5257 and 5261 encompassed all of the manifestations of his left knee disability, to include popping, locking, grinding, pain, and swelling. CCK asserted that the plain language of those DC’s reflects that he has not yet been compensated for the full extent of his left knee disability and that a separate evaluation under either DC 5258 or 5259 is necessary to adequately account for those unaddressed manifestations.
Court agrees with CCK’s arguments
CCK argued, and the Court agreed, that the evaluation of Mr. Lyles’ left knee disability under DC 5257 and 5261 does not preclude a separate evaluation under DC 5258 or 5259. This precedential decision puts forth that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC. The Court agrees that the Veteran’s symptoms could be compensated for under DC 5261, but the Board’s denial of a higher rating under that DC shows that was not the case here. Therefore, the Court reversed the Board’s finding that the all of the Veteran’s symptoms were compensated by his 30 percent evaluation under DC 5257 and 5261. Additionally, the Court remanded the matter of a separate evaluation for further development and readjudication consistent with its decision.
Judge Davis: Good afternoon. I am Judge Davis, to my right is Judge Bartley, to my left is Judge Greenberg. We’re here today in the matter of Lyles against Shulkin to consider the question of whether a veteran receiving compensation for knee injury under diagnostic code 5257, which is recurrent subluxation or lateral instability and 5261 limitation of extension, can receive an additional reward under 5258, dislocated semi-lunar cartilage or 5259, removal of semi-lunar cartilage with continuing symptoms. Will the counsel for both parties please note you appearance for the record?
Christian McTarnaghan: Good morning your Honors. Christian McTarnaghan for the appellant, with me at counsel table is Megan Ellis from the law firm Chisholm Chisholm & Kilpatrick.
Judge Davis: Okay, welcome.
Megan Caul: Good afternoon your Honors, representing the Secretary of the Department of Veterans Affairs, Megan Caul and with me is Ken Walsh.
Judge Davis: Welcome. Good to see you all. Are both parties ready to proceed?
Christian: Yes your Honor
Megan: Yes your Honor
Judge Davis: And each party will basically have 30 minutes, give or take a few. If the questioning becomes more intense, which it might. And counsel for the appellant, do you wish to reserve a portion of your time for rebuttal?
Christian: Yes your Honor. 10 minutes.
Judge Davis: Okay. Please, thank you, Dawn. Okay, Mr. McTarnaghan,
Christian: Yes sir.
Judge Davis: Is that correct?
Christian: Yes your Honor
Judge Davis: You may proceed. I will make one comment, I would ask that your presentation on the paper was good on the merits, however, there were a few typos and words that were out of place, and you might want to take care in the future to make sure that it’s a little bit better.
Christian: Of course, your Honor
Judge Davis: It kind of detracts from the reading the brief when you, you know, when things aren’t proofread that well.
Christian: Yes your Honor, my apologies your Honor.
Judge Davis: Okay, no problem. Go right ahead.
Christian: Good afternoon your honors. And may it please the court. The Board agrees that Mr. Lyles has a symptomatic cartilage disability that is manifested by popping, locking, pain, grinding and swelling. That entitles Mr. Lyles to a rating under 5259, a 10% rating under 5259. The Board’s denial of that separate rating is premised on a misreading of diagnostic code 5257 and 5261. That separate rating under 5259 would not constitute pyramiding. Diagnostic code 5257 compensates veterans for lateral instability. Diagnostic code 5261 compensates veterans for lack of extension.
Judge Bartley: Can I just interrupt you right there? I understand what you’re saying with regard to 5257. But as for 5261, generally speaking, and in this case, actually, the VA performed a Deluca analysis, that, yeah, addressed some of the symptoms that you just mentioned. So, what’s your response? I mean if, if he already considered it when doing a 5261 analysis then why wouldn’t it be pyramiding to also grant any sort of evaluation under 5258 or 59.
Christian: Because those symptoms were not taken into consideration when the Board in the previous Board decision and the rating decisions granted Mr. Lyles that rating under 5261, throughout the period on appeal. Pain in locking and grinding can become a part of the 5261 rating. However, in this case, that did not occur for the pain popping, locking and grinding to become a part of compensation under 5261, it would have to lead to some sort of limitation of motion. Mr. Lyles has the requisite limitation of motion, limitation of extension your Honors, without considering those factors. So Mr. Lyles has instability today and what I think we need to focus on is his impairment as it stands today. He has a, his rating under 5257 at a 30% level because he has instability that causes him to fall on a daily basis. That has kept him out of work. The Veteran has a rating under 5261 because anatomically he is unable to move his leg, to extend his leg. And these additional symptoms, when there is different diagnostic code that can afford him a higher rating, those other symptoms should be basically looped into 5259, and he should receive a 10% rating for those other manifestations of his symptomatic cartilage disability. This is very similar to the case of Esteban. In Esteban, the veteran had a 10% rating for what the court deemed a cosmetic scar injury. But that scar was also painful, and there was muscle damage. This is the same exact situation. There is a manifestation of his knee disability that causes the severe instability. There’s a manifestation of his knee disability that causes a limitation of extension. But neither of those ratings account for the veteran’s other symptoms of his symptomatic cartilage, and that is why —
Judge Davis: Counsel, let’s talk a little bit about a case that’s a little closer perhaps to your fact scenario in Murray which is a knee, a knee injury case, right. Are you familiar with the Murray case against Shinseki?
Christian: Not off the top of my head your Honor
Judge Davis: Okay, okay. Well, because I raised it up, I’ll talk about it then.
Christian: Thank you, your Honor.
Judge Davis: The court held in that case, this is a 2011 case that if the appellant’s symptoms are distinct and separate than the appellant is entitled to separate disability ratings for various conditions which it sounds like you are making this argument
Christian: Yes Your Honor.
Judge Davis: These are separate conditions with different symptoms. It did under 5257, does that contemplate locking and popping and grinding? Does that diagnostic —
Christian: The plain language of that diagnostic code does not your Honor. 5257 contemplates instability and subluxation of the knee. In Mr. Lyles’ case in particular as well, those symptoms don’t account for his severe instability rating. He could have achieved his severe instability rating under 5257 without any of those symptoms. It’s the same for 5261 your Honor. Mr. Lyles without all of these other symptoms that the Board found, were related to his symptomatic cartilage disability would be rated at the same exact level. When the plain language of the regulation doesn’t contemplate symptomatology, and there are additional symptoms, non-overlapping, non-duplicative symptoms. And there’s another diagnostic code that allows for those disabilities and those manifestations of the disability to be rated the VA has a duty to rate that veteran under that diagnostic code, to rate the veteran at the highest level possible.
Judge Davis: And what was the position of the Board in not doing that? Why didn’t the Board do that?
Christian: Because the Board misread the regulations and the Board, therefore, misapplied the concept of pyramiding to this case. The Board was perpetuating in error that it’s been making throughout the whole course of this appeal, which I am here today and I hope the court can help us remedy. Mr. Lyles has all of these different manifestations of his disability because the Board in the past or a rating decision in the past, were not here under a concept of CUE, lumped all these symptoms together and said, “We’re going to give Mr. Lyles a 30% for his knee instability.” That shouldn’t continue today. What we’re asking the court to do is to remove this barrier of pyramiding that the Board thinks is precluding it from allowing Mr. Lyles to be rated at his appropriate level of compensation, which is this additional 10% rating. So, the Board was wrong, and it was wrong because it misread the plain language of the regulations, and it was wrong because Mr. Lyles has separate manifestations of this knee disability which was caused all by the same injury in service. And he deserves compensation under 5259 as well.
Judge Bartley: Are you trying to make a distinction between a veteran like Mr. Lyles who, I’m just taking your word for what I’m going to say here
Judge Bartley: A veteran like Mr. Lyles who is evaluated under, DC 5261, and the VA both at the RO and at the Board, considered Deluca factors but they find that he wouldn’t get an extra, any higher evaluation even with those factors considered. Are you drawing a distinction between that situation and a situation where a veteran is evaluated under 5261 for the limitation of motion of the knee, and at the VA and the Board, or maybe just at the Board. The Board considers Deluca and says, “Oh my God, like you deserved to be bumped up because of the Deluca factors.”
Christian: Absolutely your Honor
Judge Bartley: And you, so you’re saying in this 2nd situation
Christian: Where he gets the bump up —
Judge Bartley: Where he gets the bump up
Judge Bartley: He would not, assuming he has this meniscal issue, would not get a separate eval under 58 or 59 because the pain and swelling and other factors that are actually specifically mentioned in 4.40, 4.45 were considered, or were already considered giving him the eval under 5261?
Christian: Yes, your Honor. Because in that hypothetical scenario the veteran would have already been receiving compensation for those manifestations of the disability.
Judge Bartley: Okay
Judge Bartley: The first thing I have to say is, you know, maybe I’m not a very close reader. But I don’t think that actually came through in your brief, so I’m just putting that out there.
Judge Bartley: I mean there was some very just vague sentences, but nothing like what I just said. You know.
Christian: Yes your Honor.
Judge Bartley: I’m just saying that. So, okay so why would you draw that distinction though, when, as I just explained it to you in this 1st scenario, the factors were actually considered, but they didn’t result in a bump up? I mean they were considered. Are you, or do you think that they weren’t here?
Christian: No. So, I think the reason why those 2 factual scenarios are desperate is because, in 1 there would be overlapping symptom ontology and that is why Esteban would preclude the veteran from getting a separate rating under 5259. But when those factors aren’t considered in the rating, the pain is still, the swelling, the locking, the grinding, it’s still for lack of a better way to describe it, in the atmosphere to attach to a diagnostic code. And that’s why in this particular situation because Mr. Lyles has severe symptomatology of instability which causes him to fall every day, those are his 5257 symptoms because he anatomically can’t extend his leg, that is why he has a 5261 rating. And those other symptoms can be compensated by 5259 and the VA has a duty to do so.
Judge Bartley: Okay, so, let’s just go through the symptoms that you’re focusing on here, and I’d like an answer from you. Pain, what, is pain is a Deluca factor, right?
Christian: Yes, your Honor
Judge Bartley: Okay, swelling? Is that, is that part of the, I understand what you’re saying in these two situations and Mr. Lyles you say is different from the person who received an elevation because of Deluca. But swelling, you believe in your view that swelling is covered under 4.40 or 4.45 or 4.59?
Christian: I don’t have the regulation in front of me, your Honor. I can’t remember off the top of my head if that word is actually used in 4.40, but if it leads to —
Judge Bartley: It’s used in 4.45
Christian: 4.45, if it leads to limitation of motion in some way, that’s used in conjunction with the limitation of extension in the extension diagnostic codes to get a higher rating gas.
Judge Bartley: I see what you’re saying out there.
Judge Bartley: Okay, popping? Do you believe that popping is covered under what we normally call the Deluca factors?
Christian: It can be, if it leads to further limitation of motion in some way, yes your Honor.
Judge Bartley: Okay, and grinding? Because that was one of the ones you targeted.
Christian: I just need to keep coming back to the factual, the factual sort of distinction here is that
Judge Bartley: I understand, I understand
Judge Bartley: but if we don’t, if we don’t accept that distinction that you’re making, that would work in your veteran’s favor here. Your argument. Then I’d like some kind of acknowledgment by you or maybe a no, that these symptoms that you’re, that you’re focusing on, are or aren’t generally covered in the Deluca regulations. So, I mean so far we’re proceeding
Judge Bartley: I just got two more, this is with grinding and locking
Judge Bartley: Or, I mean, or do you want to think about this, I mean if you want to submit an additional memo on this. I mean, I personally would have no objection on that if you don’t want to —
Christian: Well if the court would like me to sub-ammend, I would be more than happy to do that, but, I think, I think the point of this particular case is that when you look at the veteran symptomatology as it stands now, the way that the veteran has been rated, leaves other symptoms still on the table. And since 5259 is a regulation, is a diagnostic code rather, that the veteran could receive additional compensation under, I think, that, that the VA should have rated the veteran with an extra 10% rating under 5259.
Judge Bartley: Okay, so as far as those 2, because you, you really in your brief I think only mentioned, 1, 2, 3, 4, 5. The pain, swelling, popping, and then there’s grinding and locking
Christian: Those, are the factors, the manifestation of the veteran’s cartilage disability that the Board found were related to it. So the Board made that favorable finding that these were problems that the veterans was having and why he has a symptomatic cartilage disability. So those are, those are the symptoms that I was focusing on, that’s on page 4 of the record. And so–
Judge Bartley: And so, are you saying that symptoms, those two symptoms would be generally part of the Deluca analysis?
Christian: It could be a part of the Deluca analysis but in this case, it is not
Judge Bartley: I can, I understand what you’re saying there about Mr. Lyles case versus. But I’m talking generally.
Christian: There are certain cases where that could be considered under the Deluca factors, but in this case, it was not. If
Judge Bartley: Okay, okay.
Judge Davis: Counsel, where exactly did the Board miss 58 and 59, in your view. As you pointed out they made a factual finding and it included many of the symptoms that you discuss in your brief, so, and it seems as though the symptoms overlap with the 5257 finding and conclusion there. So, what did the Board miss?
Christian: Well, the Board, those were decisions that the Board made and I don’t think that we need challenge the finding of facts in this particular case. I think that it was in adjudication. For the Board to make the favorable finding about all these manifestations of the veteran’s cartilage disability, and then to look at 5257 and find that all of those symptoms are lumped in, even though they are not considered by the plain language of 5257. That I think is an adjudication, I believe that’s an adjudication that’s based on a misreading of the regulation. And because the Board misread the regulations, it then looked to the laws on pyramiding, and improperly found that this case constitutes, it would be improper pyramiding for the Board to assign Mr. Lyles a separate rating.
Judge Davis: So some of these symptoms are you suggesting would not be included in 5257?
Christian: They are not included in 5257
Judge Davis: Certainly not by the language of the code. But are they, are they covered maybe implicitly?
Christian: I don’t believe they are your Honor, not by the regulations language, and not also on importantly on the facts of this particular case. When you look at Mr. Lyles symptoms as they are today, he has the instability that would warrant a 30% rating under 5257. He has that lateral instability that causes him to fall, that’s caused him to miss work. That is what he was appropriately rated at under 5257. What has happened in the past in this case in the Board perpetuating a potential error where they grouped all these symptoms together and said that the veteran deserved a 30% rating under 5257. All of the symptoms that they were prescribing to a rating under 5257, don’t belong there your Honor
Judge Davis: Go ahead
Christian: And, and because in this particular scenario there is another diagnostic code that the Board could have looked at to give the veteran a higher rating, I think they should have.
Judge Davis: A couple of other diagnostic codes
Christian: There are a couple of other diagnostic codes, yes your Honor.
Judge Davis: What would you like this court to do? Reverse and remand? Or remand?
Christian: We would like this court to hold that a separate rating would not be pyramiding. The Board is budding up against a legal barrier that it improperly found exists in this case. Which is that a separate rating would be pyramided, pyramiding. We would like this court to hold that a separate rating would not be pyramiding, and vacate and remand to the Board for them to consider which rating either under 5258 or 5259 would be appropriate. This legal question has already come up in the context of this case your Honor. In 2014 there was a memorandum decision from this court that remanded the issue for the Board to take another look at whether there was a rating under 5258 or 5259 and whether that was appropriate.
Judge Davis: From Judge Bartley, right?
Christian: Yes your Honor. From Judge Bartley. It’s our opinion that the court would not have remanded this particular issue if it were harmless error. So, our position is that this legal question has already been decided in this case. A separate rating would not be pyramiding. So, we would ask the court to hold that it would not be pyramiding and remand and vacate the Board’s decision.
Judge Davis: Okay.
Judge Bartley: Did the secretary in that case, I can’t remember, concede an error in this regard
Christian: Yes your Honor
Judge Bartley: That the Board hadn’t discussed those 2 DCs
Christian: Yes your Honor. In August 22, 2014 pleading the Secretary conceded that the Board erred when it failed to consider 5258-59. This court agreed and the case was remanded back down to the Board. And the Board found that it would be pyramiding.
Judge Bartley: So your argument is that, partially your argument is that, the concession by the Secretary as to a reasons or bases deficiency, was actually an acknowledgment that these DCs would not be duplicative?
Christian: I think it is your Honor. Or else it would have been harmless error. There would have been no prejudice at the veteran for the Board not to have considered it. I see my time is running short your Honors, if there are no further questions?
Judge Davis: Thank you, counsel.
Christian: Thank you
Megan: Good afternoon your Honors, may it please the court. The court should affirm the January 2016 Board decision that denies additional ratings diagnostic code is under diagnostic code 5258 and 5259 because the appellant has not identified any separate and distinct symptomatology for which is not already compensated under his 30% rating under diagnostic code of 5257, or is compensated under his 30% rating under diagnostic code 5261. In arguing for an additional rating, appellant asserts that his symptoms of locking, popping pain and effusion are not contemplated under either diagnostic code. He is mistaken. Diagnostic code 5257 does consider those symptomatologies, moreover if the court was to find merit in appellant’s argument, the diagnostic code 5257 does not contemplate the symptomatologies which the Secretary would dispute. Appellant still cannot prevail in obtaining the relief he seeks because he fails to appreciate that those symptoms are contemplated by a diagnostic code 5261.
Judge Davis: Counsel, as I read 5257, it says nothing about locking, popping and grinding
Megan: Yes, your Honor. But an analysis into the definition, the medical definition of instability indicates that excuse me, the medical definition of instability concludes that the inability of the joint to main support use. 5257 as it is currently applied includes subjective and objective factors. Looking to the facts of this case, beginning in 1996, appellant has described the symptomatology as popping. Every time he moves his knee pops. That is the fact that led to his initial rating under diagnostic code 5257, beginning in 1996. In 19, excuse me, in 2010, he was specifically asked to identify his symptom as an instability, on a medical examination, appellant said, “His knee locks and it clicks.” Those are subjective factors that were considered under diagnostic code 5257 and getting him the ratings that he currently receives. Excuse me, locking is defined as a feeling of loss of extension secondary to the mechanical block which may include the sensation of buckling or giving way, which is the exact definition of instability. Additionally, the definition of a popped knee, there are 2 different definitions for popped knee. The 1st one is a grating sound on movement. The 2nd one is the inflammation of the joint with swelling, pain, and leanness. Leanness is the deviation of the normal gait or locomotion. Those are factors considered in instability.
Judge Davis: So why is 5258 narrowed off?
Megan: Because there is, excuse me, there is a specific – meniscal injuries are their own specific factor, and 5258 recognizes meniscal injuries that may not rise to the level to recurrent subluxation or the lateral instability which as appellant says causes falling or stumbling. So, 5258 and 5259 recognize the unique issues regarding meniscal injuries themselves.
Judge Davis: And, and you got that analysis from where counsel?
Megan: So the medical definitions are straight out of
Judge Davis: The medical definitions
Megan: The medical definitions for locking, popped knee, and to go for popped knee the actual terminology is crepitus which is the grating sound, and crepitus which is the inflammation. Those are straight out of Dorlan’s. Excuse me —
Judge Bartley: Now did the Board make that analysis, I remember what they’re analysis was as to 61, but as to 5257
Megan: Yes your Honor, that would be — That would be page 12. The Board did discuss the pain and swelling that is considered with the instability factor. At the bottom of page 12 of the record, the Board recites all the symptomatology and that —
Judge Davis: Did that sentence begin the Veterans Lawyers Associates?
Megan: Yes, your Honor. And in that sentence the first sentence, the board exemplifies all of the symptoms ontology in which the appellant specifies in his appeal. Then files, then continues that the symptoms of pain, swelling, looseness, giving way, falling has also been attributed to left knee lateral instability and those facts are the symptoms that form the very basis for the award of his 30%. The Board then continues on record 13 that it should meet his other symptomatology, the locking, popping, grinding under 5261, and that is the 2nd sentence of record 13.
Judge Bartley: Well, yeah, well I find it a little troubling that there’s like a whole list of things here in this paragraph on the bottom of 12 that, you know, just kind of casually are attributed as being covered under DC 5257, and DC 5257 says nothing other than instability and subluxation. I mean it doesn’t mention of these.
Megan: It goes back to your Honor, the definition of instability. The way VBA, or excuse me VA, adjudicates the instability by considering both the subjective and objective complaints under 5257. Especially looking at the history of this case, and appellant subject of complaints the entire way from 1996 when his first meniscal surgery happened. His symptomatology has always been included in 5257 rating because of the, I guess the final outcome of his disability is the giving way of his knee. So, these symptom ontologies all lead to the instability which causes him to fall, and that was what was written under 5257.
Judge Bartley: Yeah but someone who doesn’t have any of those, but nevertheless has the instability, so, they would both be rated the same?
Megan: Yes your Honor because it is the symptoms that the individual veteran would be experiencing. And so, the fact that he has the locking and the popping which are included in the instability because that’s what the actual, they end up causing, and locking is, excuse me your Honor, locking is consistent with instability which is the M-21 citation which was provided in my brief. Shows how VA has interpreted the locking and instability having overlapped. But it is actual symptoms that are contemplated in ratings. So the symptom of instability, whether it’s caused by this feeling of locking, has subjective complaints of locking and popping, is still leading to the instability itself.
Judge Bartley: Okay, if pain or swelling, or at least pain, was considered when assigning the evaluation under 5257, did it play no part then in the assignment of an evaluation under 5261? Or would you agree with the veteran’s counsel that, indeed pain wasn’t even involved in assigning the 5261 in this case?
Megan: Looking back to the 2010 medical decision at record 697, the measurement that was taken, it clearly says his range of motion was limited due to his clicking and grinding that led to the higher limitation of extension. So that, that was the indication for his 30% rating under diagnostic code 5261.
Judge Bartley: What?
Megan: 697 your Honor. A little bit halfway down the page. It starts range of motion on the left knee causes popping and grinding sensation and swelling.
Judge Bartley: Okay, I’m assuming it’s somewhere on this page. But point being that’s just the physical examination report, that’s not the underlying adjudicative decision.
Megan: Yes. but the Board, the Board again at record 13 did say that pain is considered in his rating per 5261 which would be consistent with as you addressed the appellant’s counsel with the Deluca factors and 4.40, 4.45 and the application of 4.59 as well
Judge Bartley: Okay but this is my point though, you just said that the pain was considered in assigning 5261, did you not? And then you also said a moment ago whenever you were answering the chief that pain was considered in assigning the evaluation under DC 5257. So, how come that’s not pyramiding, if that’s the way that you say that this occurred.
Judge Bartley: I’m just looking for you to attribute certain symptoms to certain disease and it seems like we’re getting it all mixed up. Part of which I have to say, seems to be due to the fact that, especially for 5257, you’re bringing in a lot of symptoms that just– I mean I– you know, I trust you. Yeah. You’re saying this is all evolves from the definition of instability. But quite frankly if that were true, then you could never do a Deluca elevation under a limitation of extension or flexion. And also get an eval under 5257. It just wouldn’t make sense because that would definitely be pyramiding.
Megan: In addressing your first issue, your honor, regarding pain. Pain can be considered under both 5257 and 5261 because pain alone cannot be compensated. The pain actually has to have a physical manifestation or a physical causation. So, whether his pain led or his swelling and the pain led to his instability that is a consideration regarding the factor under the 30 percent rating. Limitation in motion can also be caused by pain. So, it is not the pain alone that is looking at the symptomatology because pain alone cannot be rating separately. And it needs to actually have a manifestation. And in this case, the pain has manifested itself in both the instability rating and the limitation in motion factor.
Judge Bartley: So, you can consider pain twice under different–
Megan: If it manifest itself–
Judge Bartley: — diagnostic codes. That’s what you’re saying.
Megan: If pain leads to on separate manifestation that can be considered under both diagnostic codes, then yes.
Judge Bartley: And so, it would not be pyramiding, if the veteran received– I guess it’s only a misleading evaluation under 5258 for the semilunar cartilage which is displaced with frequent episodes of walking pain and effusion. Because that is pain that is attributable to a different condition. Is that what you’re saying?
Megan: That he cannot– I apologize, your honor. Are you saying that he cannot receive a 5258 for pain under–
Judge Bartley: No. Using your logic, he would be able to because he’s got pain considered under 5257 which led to instability. He has pain under 5261 which– I mean I’m talking about a veteran in general not necessarily Mr. Lyles– has limitation of motion due to pain. And by that, I’m just extending that logic. He would be able to receive another evaluation under 5258 for these episodes of– if he has this meniscal issue and has episodes of pain and locking and whatever else it caused. So, that point being, that under your rationale, as to pain being considered under 5261 and 5257, he would also be able to get an evaluation under 5258. Even though it mentions pain because that is due to a different condition.
Megan: No, your honor. Because again, so with the pain under 5258, it needs to have some sort of manifestation. So, if it’s causing limitation of motion, then he would get the rating under 5261 or 5260, depending on the limitation of motion because the meniscal disabilities is in themselves or by themselves, contemplate limitation of motion. The meniscus under effects of limitation of motion. So, there’d be no way for a separate rating under 5250 and 5260 or 5261 because they contemplate the effects of the limitation of motion including the effects of pain.
Judge Bartley: Okay.
Judge Davis: Counsel, are these symptoms overlapping then? Let me direct your attention to the record on page 12. The Board addressed why 5258 and 5259 in its view, application was not warranted. And said, beginning in the second paragraph on that page, that it’s considered all the evidence finds that a separate rating under 5258 and 5259 is not warranted because the symptomatology has already been adequately contemplated by the ratings already assigned. And you’re suggesting that the symptomatology that’s contained in 5258 and 5259 have been adequately contemplated because these symptoms overlap?
Megan: Correct, your honor. Yes.
Judge Davis: Okay. And the Board goes on to say that the evidence shows that while the veteran has not at any time been found to have dislocated cartilage in requirement for a rating under 5258, he clearly has had removal of the cartilage which is considered under 5259. And then the Board cites Esteban v. Brown to say, in quote, what appears on page 260 of the decision. I’m sorry on 262, the decision: “The critical element is that none of the symptomatology for any one of these three conditions is duplicative of or overlapping with the symptomatology of the other two conditions”. And it strikes me that this is a knee problem. And there are a bunch of issues with the knee, obviously, some locking and some popping, some binding, may be an impact on extension, cartilage has been damaged and removed, ultimately, it sounds like as well. Why won’t the Board apply the code provisions that, “The language that the appellant complained about.” And so, rather than come up with 5257 only, why not apply 5257, 5258 and.5259?
Megan: Well, multiple reasons your honor. At the time when the reading was happening for 5258, it would not actually be at play here because 5258 contemplates dislocated cartilage. At all times here, he has had removal of the center layer cartilage. His dislocated cartilage or torn cartilage of his knee at this time has been removed in three separate occasions in 1996, 2001 and 2005. So, the rating under 5258 were necessarily not applied because there is no current dislocated cartilage. He has had removal of that cartilage.
Judge Bartley: Didn’t he have two partial removals? Did he ever have a full meniscectomy?
Megan: So, from what I understand is the medical– I guess the medical community no longer does full meniscus removals. It’s partial. It just removes the damage at the time. However, by 2011 the medical evidence shows here that he had no articular cartilage left and he had complete laceration of any central layer cartilage that he did have left. So, at the time of the ratings here, it was all– it would all fall under 5259. 5259 contemplates symptomatic removal of the cartilage. It’s actually the residuals of meniscal surgeries that are contemplated on that, that it only allows a 10 percent rating here by virtue of his 30 percent ratings under both 5257 and 5261. The symptomatology, for the removal meniscus, is greater than a 10 percent. The board didn’t limit him under the 10 percent rating for the removal of central layer cartilage. It gave him the higher ratings under the diagnostic code 5257 which permits up to 30 percent rating and a diagnostic code 5261 because his symptoms that are contemplated by the meniscal surgeries were contemplated by the diagnostic code which gave him a higher rating pursuant to 38 CFR 4.7.
Judge Davis: Well, that’s an argument. But why then wouldn’t all of those symptoms be listed under 57 as well?
Megan: Instability does not– so, 5257 does not include limitation of motion. So, under the VA’s– and there is a general council opinion on this. I think it’s 9-2004. You can have a rating under 5257 and a rating under 5261 because the instability does not contemplate the actual mechanical limitation of motion. That is contemplated by 5260 or 5261. So, with looking at the actual mechanical applications and the measurements and also the Deluca factors. And the factors brought in by 4.40, 4.4 and 4.45. Those of you rating under the 5260, 5261 instability in general whether it considers the locking and the popping as well as the swelling, would go under 5257. So, it is possible to have a 5257 and a 5260 and a 5261. But because the meniscal injuries themselves contemplate that symptomatology considered under this are the diagnostic codes. That is where the pyramiding exists, your honor.
Judge Davis: Okay.
Judge Bartley: And would you address appellant’s argument regarding the memorandum decision remanding and the Secretary’s 2014 concession?
Megan: The Secretary’s concession in 2014 was not as specific as the appellant has stated. In 2014, there was an appellant against the secretary that point in time who had listed in his informal brief a litany of diagnostic codes that he believed that VA should have contemplated. In the board’s decision in 2014, the symptomatology of locking was only discussed in its factual recitation and the diagnostic codes 5258 and 5259 were not discussed at all. After their informal brief was received, the secretary conceded that there were several events including a symptomatology of locking and the fact that the board did not address that the appellant had meniscal injuries and meniscal surgeries at that time, consider the reason basis for the Board to address it in the first instance was applicable here. Additionally, at the time, when the memorandum decision came out in 2014, that is consistent to what the court was doing across the Board at that point in time. It was remanding for reasons and basis to determine whether or not in the first instance of ratings under diagnostic codes 5258 and 5259, were applicable given the symptoms. It was the reasons and basis concession which the court did agree. The court never reached a harmless error nor was harmless error conceded. Excuse me. Nor was harmless error discussed in any of the Secretary’s briefing or the court’s memorandum decision at that time. But it was just for the Board to address the favorable evidence. And what did that favorable evidence contemplated the rating under these other two diagnostic codes in the first instance which is what the Board then did in 2016.
Judge Davis: So, counsel, if the court were to agree with you, your position, would that decision be consistent with Esteban or Murray.
Megan: Yes, your honor. It would be consistent with those cases. Yes. Specifically because you’ll be looking here at the symptomatology of the new disability. And as you mentioned before, the knee is a complex joint and there is going to be a lapping symptomatology here. You cannot assign a different, new ratings under 4.14 for this individual symptomatologies overlap. And these diagnostic codes that you contemplate overlapping symptomatology.
Judge Bartley: Since you seem so familiar with the record, what is the cause of his locking? Has any doctor ever opined about that or any medical exam indicated?
Megan: For the actual cause of his locking, I don’t believe there has been a determination as to the locking itself upon has subjectively– has objectively identified locking as the symptomatology. I do know that early on before one of the first meniscal surgeries he had, his Apley test was positive. The Apley test is popping as part of the meniscus injury. But that was– early on, I believe in 1998 or even 2001 during one of his first meniscal surgeries and the Apley test itself, test popping and locking. But other than that, in his more recent examinations, it is more of a subjective indication of locking.
Judge Davis: Counsel, how then would a knee injury or disability end up having symptoms that are distinct and separate? I’m looking at the Murray case against Shinseki and the language in that opinion. In that case, a breather of two general counsel opinions that were referenced as well. Making a point that the opinions allow for separate disability ratings arising from the same knee injury. I think it was general counsel opinion 9-2004 and 23-97 that allow for separate evaluations for arthritis and subluxation or instability of the knee under different diagnostic code but including 5257. At least in that case, the opinion, the general counsel’s opinion certainly supported awarding different evaluations for– separate evaluations and different disability codes for a similar injury arising at the knee. And if in this case, in Lyles’ we have a complex knee problem that includes instability and some locking and grinding. Is it possible to view those symptoms as distinct and separate ever?
Megan: Two points, your honor. The first is the Secretary is not disputing that you can have a rating under 5257 and 5260 and 5261. It is possible to have an instability rating and a limitation of motion rating at the same time. That is one of the– both general counsel opinions that you cited to address those specific disabilities, the instability and the limitation of motion. If it’s an arthritis, due to painful arthritis and how you rate painful arthritis under the diagnostic code, the hyphenated diagnostic codes. In this case you have two diagnostic codes that specifically contemplate the meniscal injuries. Like in each of the meniscus injuries under 5258 to 5259, the symptoms that are also identified in 5257, 5260 and 5261 are also causation factors and symptoms that arise from meniscal injuries. It is those two, the 5258 and 5259 that you cannot pyramid with the additional– and it’s functional symptomatology under 5257 and 5260 because they are overlapping functional symptomatology by the very nature of the meniscal disability. The meniscal injuries themselves contemplate symptoms of a fusion, pain, swelling, inflammation, a popping sensation, a locking sensation, a giving way sensation, instability, inability to bear weight, catching sensation and mobility may be impaired. Those are the symptoms that actually stemmed from meniscal injuries themselves.
But the diagnostic codes only contemplate a 10 or a 20 as well. So, therefore, the symptomatology, you can get a higher rating under 5257 because you can go up to 30 percent as taken with the limitation of motions but because of the underlying symptomatology that you have to contemplate in rating the knee disabilities, that is where the pyramiding exists and it is to those specific two diagnostic codes, 5258 and 5259.
Judge Davis: Okay. So, you would like the court to affirm the board’s determination here?
Megan: Correct, your honor. Yes.
Judge Bartley: Now, what is your response to appellant’s argument that where Deluca– then this is focusing on DC 5261, that where Deluca considerations did not result in an elevation that any of the Deluca factors basically were not part of the evaluation. And so, at least as to DC 5261, there would be no pyramiding and assigning an eval under a meniscus DC?
Megan: May I have one moment your honor?
Judge Bartley: Sure.
Megan: Your honor, by nature of the Deluca factors and the schedule of 4.40 and 4.45. The Deluca factors may be a consideration. They may not warrant compensation. But they are always a consideration in rating meniscal disabilities. So, the fact that the Deluca factors are there and they do not give the appellant a bump up, they are still considered in the limitation of motion considerations by nature of the case law and the considerations that are given.
Judge Bartley: Okay.
Megan: At this time the Secretary would ask the court to affirm the January 2016 Board decision.
Judge Davis: Thank you.
Judge Davis: Counsel, you have 10 minutes.
Christian: Thank you, your honor. I agree with you, your honor, that the Board just seems to lump all of the separate manifestations of the veteran’s symptomatic cartilage disability into its 5257 rating. And that is exactly what the Board did wrong in its decision. It decided that the veteran’s entire manifestation of that disability is adequately rated at a 30 percent rating for his disability. If you look at Mr. Lyles’ symptomatology as it stands today, he falls every day at work or he falls every day, which causes him to fall at work. That is what warrants his 30 percent rating. And if you look through the history of the rating decisions, it supports the fact that there has been an increase in his instability since the beginning of his rating. He was first rated for his instability in a March 1991 rating decision that’s at R-1381. If you look at that rating decision, the chief complaint is instability. He was granted service connection and a 10 percent rating in that reading decision. In 1996, five years later, he was granted a 20 percent rating for his recurrent subluxation or lateral instability of the knee, which is moderate because of his periodically– it was periodically giving out. That is at page 1350 of the record. In 1998, the veteran was granted a 30 percent rating because his knee gives way especially when turning to the left and to the right. And sometimes when walking forward. That symptomatology is sufficient to get him a 30 percent rating under 5257. When you look to the similar history of his ratings under 5261, it tells a story that omits the 4.40 factors. When we are looking to Esteban and we are looking to symptomatology, it’s about being compensated for overlapping symptomatology because Mr. Lyles is not compensated. There’s not this uptick in his limitation of extension disability because of these other factors. That is why Esteban controls here. And I believe if the court affirms this board’s decision and accepts the Secretary’s methodology that the Secretary brought to adjudicating this case, it would be contrary to the decision in Esteban. The veteran was rated at a 0, 10 and a 30 throughout the period on appeal. His 30 percent rating for 5261 began in April 2010. If you look to the examination reports that the Board used in the rating decisions used to rate the veteran’s limitation of extension, they don’t consider the pain, locking, popping, grinding and swelling in terms of issuing or describing to the Board the medical opinion about how far the veteran can move his leg. So, these other factors are still out there for the Board to appropriately rate.
Judge Davis: Now, counsel, you certainly will concede that locking and popping and grinding was part of the Board’s discussion.
Christian: It certainly was, your honor. But the decision to lump them in to the other ratings that the veteran has, the other compensation that the veteran is receiving is at the heart of the problem here. That decision was incorrect. Those factors, those symptoms rather were not a part of those ratings. And if they were, they shouldn’t have been. And so, to perpetuate the same error that the Board has been making in these ratings currently is what we’re here trying to correct. The veteran has the adequate symptomatology to receive all three ratings, your honor.
Judge Davis: Okay. So, if we agreed with you, what should his rating be if we applied 5258 and 5259?
Christian: If you were to provide the veteran with a 10 percent rating under 5259, he would have a 30 percent rating under 5257 for his severe instability. He would have a rating under 5261 for his limitation of extension. He would then have the 10 percent rating under 5259 for his symptomatic cartilage removal. Those other symptoms that are unaccounted for in these other ratings and that would raise his overall disability rating for that knee from a 50 to a 60,
Judge Davis: Is that easy to separate these symptoms, counsel? I mean we’re talking about a complex joint with meniscus issues and it seems to me that it’s logical. I’m not, obviously, I’m not a doctor but it’s logical that there would be overlapping symptoms here.
Christian: When you looked at the facts of this case, your honor, they aren’t overlapping symptoms and that is why the concept– Esteban is the case that should direct to the court’s inquiry. The decision should look to the symptoms and whether or not today, they’re sufficient to get the veteran’s rating. And I believe when the court does that, the court will find that there were other symptoms that are unaccounted for in the veteran’s current ratings. And the veteran should receive the extra 10 percent under 5259 for his popping, locking, grinding and pain.
Judge Davis: Okay. So, on 262 of Esteban, the clinical element is that none of the symptomatology for any one of these conditions is duplicative or overlapping with symptomatology of the other two conditions, would be I assume language you would use to support guidance to the court that they’re not duplicative in this case.
Christian: Yes, your honor, because similar to the case of Esteban, which was caused by a motor vehicle accident. The veteran in that case, the claimant in that case had a disfiguring scar, cosmetic scar. He had a painful scar and he had a muscle problem. Similarly here, the veteran has an injury to his knee in service. The symptoms of his knee disability cause severe instability. The symptoms of his knee disability cause the limitation of extension. But he has these other symptoms that have yet to be rated. It’s a very similar scenario to Esteban.
Judge Davis: Esteban, involved face and this involves the knee.
Christian: Yes, your honor. That is a factual distinction. However, how Esteban informs us is how the diagnostic code should be used to rate separate symptoms of a singular disability. So, I believe it’s 7800 that rates the veteran for a disfiguring scar. And so, the court found that there are two other diagnostic codes that were within– that they should rate the veteran under for the other symptoms. So, insofar as it’s the face and then a muscle, I think that that is in this factual instance a distinction without a difference because there aren’t overlapping symptoms in this particular case, as there were not in Mr. Esteban’s case.
Judge Davis: We heard the appellee’s counsel discuss the definition of instability. And are you suggesting that all of the symptoms that were complained about in the record by your client were popping, grinding, locking, were not also partly helping to cause instability?
Christian: I don’t think that the veteran’s rating for his instability was premised on those symptoms. No, your honor. So, the veteran falls every day and his lay descriptions of those falls and the buckling, that is what I believe is sufficient to get the veteran rating under– his severe rating under 5257. And if you look at the history of the rating decisions, it’s been this concept of instability that has permeated the record. The chief complaint was instability, then it was–periodic instability to instability when he turned every which way.
Judge Davis: But if you’re going up and down the stairway or you’re walking on the road, then your knee locks, that will cause instability, won’t it? You could fall.
Christian: You could fall, your honor. But in this particular case, I believe that the symptoms can be separated to show that Mr. Lyles has the instability that’s separate and apart from these other factors of pain, popping and locking —
Judge Davis: That’s what I’m trying to figure out. How do you separate these symptoms so easily? It’s a complex joint. And all of these symptoms seem to contribute to instability and I guess potentially, the pain or swelling or locking or popping and grinding.
Christian: But when you look at this particular case, your honor, he has symptomatology that’s sufficient to get him the 30 percent rating under 5257 because he falls. He has the symptomatology now for his limitation of extension. So, there are other symptoms that are still out there that are attributable to a diagnostic code. If 5259 didn’t exist, I think that this would be a different conversation, your honor. But since 5259 exists, the Board made a favorable factual finding that the veteran’s cartilage disabilities manifested by all these other things, as well as looseness and giving way, your honor, which are two symptoms that I haven’t been discussing because they’re already contemplated, Mr. Lyles is compensated for those two symptoms of his cartilage disability by this 5257 rating. So, in a way, the board has parsed them out as separate manifestations of his knee disability. And I see that I’m out of time, your honor.
Judge Davis: Okay.
Judge Bartley: I just have one more question. What is the cause of the locking? Do you have any sense– I asked Secretary’s counsel the same question?
Christian: I don’t believe that there’s been any definitive answer as to what causes the locking, your honor. And I believe that the Secretary referenced the April 2010 V.A. medical examination that discussed locking and limitation of motion. And if you look to the actual medical description of the range of motion loss– and I actually have– I believe a different version from the record. So, that’s a record 562. It doesn’t describe the active lack of 20 degrees of active extension as related to the locking. So, a veteran may have locking, popping, grinding. But as we were discussing before, your honor, if that doesn’t lead to the tick up and the medical information doesn’t suggest that the locking is what causes the limitation of extension, then I think it’s an unattributable symptom. And since the Board made that favorable finding at the beginning of this decision in record 4, that’s a symptom that would adequately be compensated by a rating under 5259.
Judge Davis: Okay. Thank you, counsel.
Christian: Thank you your honors.
Judge Davis: The case is submitted for consideration. The court will now come down and greet Counsel.
Bailiff: All rise.
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