Lyles: Rating knee disabilities
/Lyles v. Shulkin, 29 Vet.App. 107 (Nov. 29, 2017)
HELD: “[E]valuation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259, and vice versa.” Entitlement to a separate rating depends on whether the symptoms have already been compensated under another DC. For musculoskeletal conditions based on limited motion, a symptom has not been compensated if it “did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet.App. 202 (1995).”
SUMMARY: Thomas Lyles sought an increased rating for residuals of his service-connected left knee disability, which was rated 30% under DC 5257 for instability. After ten years of appeals, he was finally granted an additional 30% rating under DC 5261, based on limited extension. He appealed to the Court, which remanded for the Board to address whether he was entitled to an additional separate rating under DC 5258 (dislocated semilunar cartilage) or 5259 (removed and symptomatic semilunar cartilage).
The Board obtained a new VA joints examination in which the examiner noted objective evidence of pain, tenderness, and crepitus, but concluded that he could not offer an opinion as to whether pain, weakness, fatigability, etc., resulted in additional functional loss because there was “no objective evidence” to support such loss. The Board denied an additional rating, finding that his additional symptoms were “already ‘encompassed’ by his current evaluations under DCs 5257 and 5261.” The Board determined that Mr. Lyles was not entitled to a higher rating under DeLucabecause there was “no clinical evidence” of further impairment and the VA examiners “‘could not say without resort to mere speculation what such impairment would be.’” The Board concluded that an additional rating would violate the rule against pyramiding, and denied the claim.
On appeal to the Court, Mr. Lyles argued that the plain language DCs 5257 and 5261 shows that they only cover instability and limited extension, and do not include not all the manifestations of his left knee disability – popping, locking, grinding, pain, and swelling. He acknowledged that VA mayconsider these symptoms under DC 5261, pursuant to DeLuca, but that those manifestations had not been compensated in his case. The Secretary argued that his left knee symptoms had already been considered under DC 5261 and could not be rated again under DC 5258 or 5259.
The issue before the Court was whether “evaluation of a knee disability under DC 5257 or 5261 preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259.” The Court held that it does not.
DC 5257 covers “recurrent subluxation or lateral instability” and DC 5261 covers limitation of leg extension. See 38 C.F.R. § 4.71a. DC 5258 provides a 20% rating for “cartilage, semilunar, dislocated, with frequent episodes of ‘locking,’ pain, and effusion into the joint.” DC 5259 provides a 10% rating for “cartilage, semilunar, removal of, symptomatic.” Id.
The Court found that the plain language of 38 C.F.R. § 4.71a “does not expressly prohibit separate evaluation under DC 5257 or 5261 and a meniscal DC,” Lyles, 29 Vet.App, at 114(citing Esteban v. Brown, 6 Vet.App. 259, 261 (1994) (examining separate ratings under scar DCs) and Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013) (regarding separate ratings under musculoskeletal DCs)). The Court noted that VA’s rating schedule “is replete with rules that prohibit separate evaluations of other disabilities,” such as 38 C.F.R. § 4.96 (prohibiting separate ratings of specific respiratory conditions), § 4.113 (regarding rating digestive conditions), § 4.115 (prohibiting separate ratings for heart conditions and nephritis). Id. The Secretary’s demonstrated ability to “craft regulations that expressly forbid” separate ratings strongly suggests that the absence of such language in § 4.71a “must be read as a deliberate decision to permit separate evaluation.” Id. at 115.
The Court briefly explored the regulatory history of § 4.71a, and held that the language of the regulation, its history, and the surrounding regulations “unambiguously reflect that evaluation of a knee disability under DC 5257 or 5261 does not preclude, as a matter of law, separate evaluation of a meniscal disability of that same knee under DC 5258 or 5259,” and vice versa.
As to whether Mr. Lyles’ symptoms have already been compensated, the Court found that DC 5257 “compensates veterans only for knee impairment resulting in recurrent subluxation and lateral instability,” and thus reversed the Board’s determination that this DC also compensated him for pain and swelling.
Because DC 5261 is based on limitation of motion, the Court discussed the relevant regulations pertaining to rating musculoskeletal conditions based on limitation of motion – 38 C.F.R. §§ 4.40, 4.45, and 4.59. These regulations provide for higher ratings where there is evidence of (1) functional loss due to pain and other factors, (2) reduction of normal movement, or (3) an “actually painful, unstable, or malaligned” joint. *13 (citing Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca, 8 Vet.App. 205-07; Southall-Norman v. McDonald, 28 Vet.App. 346, 352 (2016); and Petitti v. McDonald, 27 Vet.App. 415, 425 (2015)). Lyles, 29 Vet.App. at 117-18.
The Court stated that the purpose of the rating schedule “is to ensure that a claimant is properly compensated, but not overcompensated, for the actual level of impairment.” Id. at 118. Mr. Lyles conceded, and the Court agreed, that each of his additional symptoms couldbe compensated under DC 5261 – by assigning a higher rating pursuant to DeLucaand §§ 4.40, 4.45, and 4.59. The Court found, however, that the Board’s discussion of §§ 4.40 and 4.45 demonstrates that these symptoms have not been compensated in Mr. Lyles’ case. The Court based this determination on the Board’s “failure to address whether swelling, popping, locking, or grinding caused additional functional limitation” that would result in a higher rating under DC 5261 and DeLuca, and the Board’s improper reliance on medical opinions in which the examiners refused to offer the requested opinions regarding additional functional limitation during flare-ups. Lyles, 29 Vet.App. at 419-20 (citing Sharp v. Shulkin, 29 Vet.App. 26, 36 (2017)).
The Court remanded for the Board to determine whether a separate evaluation is warranted under DC 5258 or 5259.
Advocacy Note: Lylesdemonstrates how VA’s own regulations – 38 C.F.R. §§ 4.40, 4.45, 4.59 – require adjudicators to assess additional functional loss based on limited motion or painful motion. The Court has repeatedly admonished VA for not complying with its own regulations when rating musculoskeletal conditions, and the cases cited in Lyles reflect this history.
