"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Monday, December 11, 2017

Lyles: The Interplay Between DC’s in Knee Claims and Pyramiding

Lyles v. Shulkin, Case Number 16-0994, decided December 29, 2017 examines whether a veteran should also have received a rating under DC 5258 or 5259 in addition to ratings under DC 5257 and 5261.

DC 5258 and 5259 concern the dislocated or removed cartilage.  DC 5257 involves subluxation or instability and DC 5261 concerns extension.  The veteran received ratings for instability and limited extension under DC 5257 and 5261, but also sought a rating under either DC 5258 or 5259.

The Board found evidence of removal of semilunar cartilage. And,

acknowledged that the veteran experienced popping, locking, grinding, pain, swelling, looseness, and giving way or falling related to semilunar cartilage removal, but found that a separate evaluation under DC 5259 was not warranted because each of those symptoms was already “encompassed" by his current evaluations under DCs 5257 and 5261. Specifically, the Board indicated that the veteran's pain, swelling, looseness, and giving way or falling had been attributed to left knee lateral instability and were the very symptoms that formed the basis for the 30% evaluation under DC 5257.  Similarly, the
Board found that, because popping, grinding, and locking were symptoms of impaired motion, they were contemplated in the evaluation criteria for DC 5261 and had already "been considered in conjunction with the potential further impairment of motion" pursuant to DeLuca. The Board's DeLuca analysis consists primarily of its observation that there was "no clinical evidence that the [v]eteran has further range of motion impairment due to fatigability, incoordination, pain, or flare-ups, and the April 2010 and August 2015 examiners both commented that they could not say without resort to speculation what such impairment would be." Ultimately, the Board concluded that a separate left knee evaluation under DC 5259 would constitute impermissible pyramiding and denied the claim.

Id. at *4. 

The Court held that as a matter of law evaluation of a knee disability under DC 5257 or 5261 does not preclude a rating under either DC 5258 or 5259.   The Court noted “The crux of the Secretary's argument that, as a matter of law, evaluation under DC 5257 or
5261 precludes separate evaluation under DC 5258 or 5259, and vice versa, is that the meniscal DCs are so broadly drawn that they necessarily encompass recurrent subluxation, lateral instability, and limitation of motion, such that evaluation under DC 5257 or 5261 and DC 5258 or 5259 would necessarily result in duplicate compensation of the same manifestations of knee disability”.  Id. at *7.  The Court found the Secretary’s interpretation is contrary to the plain meaning of Section 4.71a and as that section did not specifically prohibit separate evaluations under DC 5257 or 5261 and a meniscal DC and instead states to evaluate each disability separate except when instructed by the rating schedule.

The Court then focused on whether the symptoms of Mr. Lyles's left knee disabilities already been compensated under DCs 5257 and 5261 such that separate evaluation under DC 5258 or 5259 is not warranted on the facts of this case?  Id. at *10.  The Court then turned to Delisle v. McDonald and a VA General Counsel Opinion from two decades prior.  The Court explained Delisle found

DC 5257 is unambiguous; by its plain language, it provides compensation for veterans suffering from impairments of the knee, other than those enumerated elsewhere in the relevant regulations, that cause the symptoms of recurrent subluxation or lateral instability." In so holding, the Federal Circuit expressly rejected the veteran's argument in that case that DC 5257 should be read to include manifestations of knee disability other than recurrent subluxation or lateral instability, concluding that "DC 5257 is limited to establishing compensation for disabilities causing such specifically enumerated symptoms."

Id. at *11.

The Court then found the Board read into DC 5257 criteria not in it (compensation for pain and swelling) and that such finding must be reversed.  Id. at *12.

The Court then acknowledged the error with regard to DC 5257 could be harmless if DC 5261 properly left knee meniscus disability (including pain and swelling) was compensated fully by DC 5261), but found that was not the case here. 

The Court noted that DeLuca factors could lead to an elevation of the DC 5261 rating, but found that not the case here.  The Court noted the veteran admitted the symptoms he complained of could have resulted in a higher rating pursuant to DC 5261 because of DeLuca but noted the “Board's reasons or bases for denying a higher left knee evaluation under DC 5261 reveal that those manifestations have not yet been compensated in this case.”  Id. at *14-15.  It also stated:

The Board then considered §§ 4.40 and 4.45 and explained that there was "no clinical evidence that the [v]eteran has further range of motion impairment due to fatigability, incoordination, pain, or flare-ups" because the April 2010 and August 2015 VA examiners "both commented that they could not say without resort to speculation what such impairment would be." …
Ultimately, the Board concluded that, "[w]ithout clinical medical evidence indicating such additional functional limitation, the Board is unable to find that the [v]eteran's pain is so disabling as to actually or effectively limit . . . extension of the left knee to such an extent as to warrant assignment of higher ratings." This analysis is inadequate in several respects.

Id. at *15.

The analysis was inadequate because the Board focused on pain and did not also consider swelling, popping, locking, and grinding; and, the reliance on the examinations was error due to the court’s recent decision in Sharp related to resorting to mere speculation regarding flare-ups (Sharp focused on interviewing the veteran to assist the physician).  The Court then concluded  

it is clear that the Board has not yet properly assessed whether Mr. Lyles's pain, swelling, popping, locking, and grinding associated with his left knee meniscal disability have been compensated by his current left knee evaluations under DC 5261. Remand of the veteran's left knee meniscal disability claim is therefore warranted to determine whether
separate evaluation of a meniscal disability under either DC 5258 or 5259 is warranted on the facts of this case or whether such evaluation would constitute impermissible pyramiding.

Id. at *17.

This decision by Judge Bartley first explains that DC 5258 and DC 5259 are stand-alone codes that compensate for a knee disability in addition to other knee centered codes.  It also is valuable for tackling the subject of pyramiding and making it a very fact specific determination focused on the actual compensated manifestations of a disability.


Decision by Judge Bartley, joined by Chief Judge Davis and Judge Greenberg.

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