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5055 And 5257


Louie

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Can 5055 (knee replacement) and 5257 (lateral instability in the knee) be assigned as separate disabilities without pyramiding?

It is my understanding that 5055 and 5257 do not have overlapping manifistations. 5055 rating is affected by severe pain or weakness (30% vs. 60%). 5256, 5261, and 5262 seem to have overlapping disibility traits with 5055, but 5257 does not seem to overlap with 5055.

Your thoughts/references?

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Louie

I doubt you will get anywhere with this. The most the VA will give you for your knee would be 30%, and an extra 10% if you have arthritis.

I have contimplated a knee replacement for years but due to other problems it is no longer possible at this time , but it would not have changed my rating of 30% and could in fact lower it due to the 10% for arthritis.

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Can 5055 (knee replacement) and 5257 (lateral instability in the knee) be assigned as separate disabilities without pyramiding?

It is my understanding that 5055 and 5257 do not have overlapping manifistations. 5055 rating is affected by severe pain or weakness (30% vs. 60%). 5256, 5261, and 5262 seem to have overlapping disibility traits with 5055, but 5257 does not seem to overlap with 5055.

Your thoughts/references?

I had a knee replacement. During my C&P the doctor wrote that I had severe lateral instability in the knee. Does this qualify as a 60% rating, or is lateral instability (5257) a separate rating?

Can 5055 (knee replacement) and 5257 (lateral instability in the knee) be assigned as separate disabilities without pyramiding?

It is my understanding that 5055 and 5257 do not have overlapping manifistations. 5055 rating is affected by severe pain or weakness (30% vs. 60%). 5256, 5261, and 5262 seem to have overlapping disibility traits with 5055, but 5257 does not seem to overlap with 5055.

Your thoughts/references?

I had a knee replacement. During my C&P the doctor wrote that I had severe lateral instability in the knee. Does this qualify as a 60% rating, or is lateral instability (5257) a separate rating?

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It is my understanding that pyramiding means rating the same manifestation of a condition under two separate DC. I am having difficulty finding manifestation of lateral instability (5257) within the the knee replacement DC (5055).

Does anyone here see what I see, or am I missing something?

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Louis I get your point-

That OGC Pres op seems to show that arthritis , in the questioned presented to counsel, was separate DC thus separate rating.

However the first BVA decision I found gives more info:

http://www.va.gov/vetapp01/files01/0100144.txt

Did you get proper comp for the replacement surgery and convalesence period? if applicable to your situation?

That BVA decision states:

The evaluation of the same "disability" or the same

"manifestations" under various diagnoses is prohibited. 38

C.F.R. § 4.14 . The United States Court of Appeals for

Veterans Claims (Court) has held that a claimant may not be

compensated twice for the same symptomatology as "such a

result would overcompensate the claimant for the actual

impairment of his earning capacity." Brady v. Brown, 4 Vet.

App. 203, 206 (1993). This would result in pyramiding,

contrary to the provisions of 38 C.F.R. § 4.14. The Court

has acknowledged, however, that when a veteran has separate

and distinct manifestations attributable to the same injury,

he should be compensated under different diagnostic codes.

Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4

Vet. App. 225 (1993).

I will see what else I can find on this-

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This decision might help more-

http://www.va.gov/vetapp01/files01/0106863.txt

Is it possible that- although they seem to say that 5055 and 5257 are 'overlapping' disabilities in this case and thus not separate- could you possibly fit into the 5260 or 5261 criteria as they state it here?

Was Deluca considered in your claim?

Also there is another Pres op referenced in this case-

I get your point- I think if they used the wrong diagnostic code- and your medical evidence shows they sure have used 5260 or 5261 , that could make a difference-

http://www.va.gov/vetapp05/files2/0513799.txt-

"VAOPGCPREC 9-98 (August 14, 1998);

VAOPGCPREC 23-97 (July 1, 1997). Where the medical evidence

demonstrates at least a noncompensable rating assignment

based on limitation of motion, a separate 10 percent rating

for arthritis is warranted under either Diagnostic Code 5260

or Diagnostic Code 5261. Where the evidence does not reveal

limitation of motion sufficient to satisfy the criteria for

at least a noncompensable evaluation under those Code

sections, a separate rating may nonetheless be assigned for

arthritis under Diagnostic Code 5003 and 38 C.F.R. § 4.59 if

range of motion is inhibited by pain. VAOPGCPREC 9-98."

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Thank you for your help.

Concerning Deluca, during the C&P I discussed fatigability with the doctor. Unfortunately, that discussion was not reflected in the C&P report. ( I have requested a copy of my C-file to see everything.) I discussed that I had frequent buckling in the knees due to the severe instability causing fatigue in the knee after a short time on my feet. The "severe instability" was included in the C&P report. I have no extension or significant limitations of motion. The left knee does extend past 0 degrees and is a bit painful when it buckles in. I wear a brace to help.

Concerning the proper comp and convalesence period, I was 100% with housebound for 13 months. I do have a question on this. Do I get an SMC code in addition to being housebound? This was bilateral knee replacement. As such, each knee was rated 100% for that time period.

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Bilateral- yow!

Are you saying they gave you the "S" Housebound award during your convalesence-

I would think that they should have considered you for a temporary "loss of use of" SMC "L" award for each extremity-at least the "L" level of SMC-during the convalenscence period.

Does this make sense to anyone else- would the 100% temp hospitalization be due to the fact that the veteran was not employable due to convalescence for whatever reason-yet-

would it not also involve eligibility for "loss of use of" under SMC "L"?

"This was bilateral knee replacement. As such, each knee was rated 100% for that time period." do you still have their exact wording on the rating of this?

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The decision states, "Service connection for osteoarthritis, right and left knee, status post total knee replacement, is granted with an evaluation of 100 percent for each knee..."

I think I got the S rate for housebound..it was 2813 per month.

Edited by Louie
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That was the convalescent rating?

Louie- I hope our SMC expert Rich comes on board-

I dont know how many dependents you have or what year this was- but the historic comp charts at VA web site sure can help a lot to figure this stuff out.

I sure would think that you suffered temporary loss of use of both extremities under SMC "K".

Here are the rates- hard for me to say what comp they gave you-

http://www.vba.va.gov/bln/21/Rates/

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I found in UCAV 04-554 a order that "Board decision is REVERSED to the extent that it concluded separate ratings under DC 5055 and 5257 would violate 38 C.F.R. 4.14, and the matter is REMANDED for further proceedings consistent with this order."

The document says that "this action not be cited as precedent." Nevertheless, it seems that the court would have based their decision on solid law.

How can I, and what method do I use this information when forming a NOD?

Thanks in advance.UCAV 04-554

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Sorry folks, The link below doesn't work. But if you go to the UCAV site and search for 5055, document 4-0554 comes up at the top. Sorry for the inconvenience.

Louie

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I would raise this as part of your claims issue-

and send them (even though it isn't precedent) a copy of this decision (wish we knew what the remand entailed)

to support the essense of your claim-and ask them to consider the court's rationale-

because the court appears to definitely be saying that BVA erred and that separate ratings are possible under the regs they cited.

Have you found anything at the BVA to help you?

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Thank you! I found 96-46 591 citation 0012473 and citation 0305273.

It is clear. A veteran was seeking an increased rating following knee replacement. The RO disallowed the increase and upon appeal to the BVA the case was remanded because instability of the knee is not an overlapping symptom dealing with limitation of motion.

Subsequently, the RO gave the veteran 10% for instability (in addition to the 30% for knee replacement).

The veteran appealed again to the BVA asking for an increase to the ratings. The BVA did not grant an increase but left the 30% rating for the knee replacement and the 10% for knee instability in place.

(NOTE: The replacement and instability where for the same knee.)

Thank you for the tip.

Louie

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