Walleman: Knee Disabilities, Diagnostic Codes 5257 and 5259

Walleman v. McDonough, Case Number 20-7299, decided June 9, 2022 discusses knee disabilities and pyramiding.

The Court framed the issues as “address[ing] whether the rule against pyramiding categorically precludes a separate disability rating for lateral instability under DC 5257 (2020), when (1) a claimant is already rated under DC 5259, which may contemplate lateral instability if it is a residual of a meniscectomy, and (2) there are other residuals that could independently warrant a compensable rating under DC 5259.”

This case considered a pre-amended version of DC 5257.  The old DC 5257 provided a rating for “Recurrent subluxation or lateral instability.”  Additionally, DC 5259 provides a 10% rating for “Cartilage, semilunar, removal of, symptomatic.”  The VA has a result against pyramiding, which “provides that evaluation of the "same disability" or the "same manifestation" under various diagnoses "is to be avoided."  The prohibition prevents the rating schedule from being "employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology" so as to not overcompensate the claimant, or stated differently, to compensate a claimant only for his or her actual impairment.”  However, “a claimant may have "separate and distinct manifestations attributable to two different disability ratings" that entitle him or her to be compensated under different diagnostic criteria.”

The Court held “an assignment of a disability rating under DC 5259, for symptoms that do not include lateral instability, does not preclude as a matter of law a separate evaluation under DC 5257 for lateral instability of the same knee. As we explain, lateral instability may be a distinct manifestation of a knee disability that independently warrants entitlement to a separate evaluation under DC 5257. There is nothing in the law that renders assignments of disability ratings under DC 5257 and DC 5259 categorically violative of the rule against pyramiding.”

This case makes clear a rating for cartilage in the knee does not necessarily preclude a separate rating for instability and reminds veterans and attorneys to work to maximize any knee rating.

Decision by Judge Allen and joined by Chief Judge Bartley and Judge Laurer.

To know more about whether Thomas Andrews can help you, please visit my website.