Court of Appeals for Veterans Claims calls for Oral Argument
In August, CCK presented at an oral argument before the United States Court of Appeals for Veterans Claims in Washington, D.C. The case involved a Veteran client’s very severe knee disability. The Court called the case to oral argument to answer the question of whether a veteran receiving compensation for a knee injury under diagnostic codes 5257, recurrent subluxation or lateral instability, and 5261, limitation of extension, can receive an additional award under 5258, dislocated semilunar cartridge, or 5259, for symptomatic removal of semilunar cartilage.
The Board denied the Veteran a separate, additional rating under 5259 for his symptomatic cartridge disability because it decided that grant would be “pyramiding.” To “pyramid” means to compensate a Veteran for the same symptoms twice. The Board found that the Veteran’s ratings under diagnostic code 5257 for instability and 5261 for limitation of extension already compensated the Veteran for his popping, locking, pain, grinding, and swelling. Therefore, the Board found that it was not allowed to give the Veteran another rating under 5259 because he was already compensated for those symptoms.
CCK’s oral argument to the Court: veteran’s severe knee disability warrants separate ratings
CCK argued that the Veteran is entitled to three separate ratings for his severe knee disability under diagnostic codes 5257, 5261, and 5259. Specifically, CCK argued that a separate additional 10% rating under 5259 would not be pyramiding because there are no overlapping symptoms. CCK argued that the Court should be looking at the symptoms the Veteran currently has as a result of his severe knee disability.
The Veteran is rated for severe instability of his knee under 5257 because he falls every day. That alone should warrant his 30% rating. The Veteran is also rated under 5261 for his anatomical limitation of extension—how far he can extend his leg. CCK argued that the other symptoms of his knee disability (popping, locking, grinding, pain, and swelling), which the Board found were related to his cartilage disability, were unaccounted for in his other rating. Because of that, a separate rating under 5259 to account for those symptoms should be awarded. Without the rating under 5259 the Board committed legal error because it failed to rate the Veteran at the higher level possible for his disability to which he was entitled.