Kevin G. Walleman v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 20-7299

KEVIN G. WALLEMAN, APPELLANT,

V.

DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued March 24, 2022 Decided June 9, 2022)

Christian A. McTarnaghan, with whom Grace Hurley and Kevin A. Medeiros, all of
Providence, Rhode Island, were on the brief for the appellant.

Ronen Z. Morris, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief
Counsel; and Christopher W. Wallace, Deputy Chief Counsel, all of Washington, D.C., were on
the brief for the appellee.

Before BARTLEY, Chief Judge, and ALLEN and LAURER, Judges.

ALLEN, Judge: This appeal calls on us to revisit the multifaceted means by which VA
compensates service-connected knee disabilities. Appellant Kevin G. Walleman served the Nation
honorably in the United States Army from December 1971 to April 1972 and from March 2003 to
June 2004.1 We gratefully acknowledge Mr. Walleman's service, for which he earned the Global
War on Terrorism Expeditionary Service Medal and the Army Commendation Medal, among other
distinctions.2 In this appeal, which is timely and over which we have jurisdiction,3 he contests an
August 27, 2020, Board of Veterans' Appeals (Board) decision that denied (1) an initial disability
rating higher than 10% under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5259 (2020), and (2) a
separate evaluation under 38 C.F.R. § 4.71a, DC 5257 (2020), for his left knee disability.4 The

1
Record (R.) at 263, 225.
2
R. at 225.
3
See 38 U.S.C. §§ 7252(a), 7266(a).
4
R. at 5-24. The Board also remanded appellant's claims for entitlement to service connection for (1) a right hip
disability as secondary to the service-connected left knee disability; (2) a left hip disability, as secondary to the service-
connected left knee disability; and (3) a right knee disability, including as secondary to the left knee disability. R. at
Board also granted appellant a 10% disability rating under 38 C.F.R. § 4.71a, DC 5260 (2020).5
Appellant argues that the Board erred when it did not award him a separate evaluation under DC
5257 and a higher disability rating under DC 5260 for his left knee disability.
This matter was submitted to a panel of the Court principally to address 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. On March 24, 2022, we held oral
argument at the Penn State Law School in University Park, Pennsylvania. The Court thanks the
students, faculty, and staff at Penn State Law for their hospitality during our visit.
The Court holds that 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. Accordingly,
the Court will reverse the Board's finding that appellant is precluded from a separate disability
rating under DC 5257 for his slight instability and remand the matter for further development, as
necessary, and readjudication consistent with this decision. We will also remand for the Board to
consider whether appellant's November 2019 VA medical examination is adequate and to
determine the appropriate disability rating for appellant's left knee under all relevant DCs at issue
in this matter.

I. FACTS AND PROCEDURAL HISTORY
Following his first separation from service, appellant underwent a left knee meniscectomy
in 1997.6 He later mobilized to Iraq in March 2003 and reported that the duties he performed there

5. The Court lacks jurisdiction over these matters. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam
order).
5
The Board's finding that appellant is entitled to a 10% disability rating under DC 5260 is a favorable determination
we may not review. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
6
R. at 850.

2
further aggravated his left knee disability. 7 In May 2011, appellant filed a claim seeking
entitlement to service connection relating to his left knee.8
In July 2013, appellant underwent a knee and lower leg VA examination as part of his
claim.9 The examiner noted that appellant injured his left knee during service and underwent a
meniscectomy. 10 A July 2013 rating decision granted service connection for a left knee torn
meniscus status post meniscectomy, effective May 2011.11 The decision assigned appellant a 10%
disability rating for painful motion and symptomatic residuals of semilunar cartilage removal
under DC 5259-5260.12 Appellant disagreed with the assigned rating and appealed.13
In May 2018, the Board remanded appellant's claim concerning an increased disability
rating for his left knee disability, concluding that the July 2013 VA medical opinion was
inadequate because the examiner did not include passive range-of-motion measurements or pain
on weight-bearing testing pursuant to Correia v. McDonald, 28 Vet.App. 158 (2016).14 The Board
directed the RO to obtain a new medical examination that tested appellant's active motion, passive
motion, and pain with weight-bearing and without weight-bearing.15 VA subsequently afforded
appellant a new VA examination in November 2019.16
The November 2019 examination noted appellant's diagnoses of a left knee meniscal tear
and osteoarthritis, and a history of slight lateral instability in his left knee.17 The examiner stated
that "where possible," appellant's knees "were assessed for both weight[-]bearing and non[-

7
See R. at 225, 500, 508.
8
R. at 864.
9
R. at 128-38.
10
R. at 129.
11
R. at 280-86, 298-307.
12
Id.
13
R. at 276-78.
14
R. at 172-76.
15
Id.
16
R. at 53-64.
17
R. at 53, 59.

3
]weight[-]bearing testing," and that appellant experienced antalgic gait in weight-bearing
situations.18
The matter returned to the Board, which rendered the decision on appeal on August 27,
2020.19 In that decision, the Board determined that appellant's "left knee disability has manifested
as symptoms of painful motion, tenderness to palpation, stiffness, swelling, achiness, popping,
locking, clicking, grating, effusion, crepitus, antalgic gait, slight instability, and a genu varus."20
The Board found that appellant's disability is most appropriately rated separately under DCs 5259
and 5260, rather than collectively under 5259-5260. 21 The Board assigned appellant a 10%
disability rating, but not higher, under DC 5260 for limited, but otherwise noncompensable, flexion
of the left knee due to pain.22 Additionally, the Board assigned a separate 10% disability rating
under DC 5259 based on appellant's "symptomatic residuals from his left knee meniscectomy
[that] have manifested by swelling, popping, locking, stiffness, grating, and clicking."23 The Board
also acknowledged appellant's slight instability of the left knee, but it declined to award another
separate 10% disability rating under DC 5257 because "[k]nee instability is contemplated by the
rating criteria under both [DCs] 5257 and 5259, with instability as a symptomatic residual of the
meniscectomy."24 The Board concluded that assigning a disability rating under DC 5257 under
these circumstances would violate the rule against pyramiding.25 This appeal followed.

II. THE PARTIES' ARGUMENTS
Appellant contends that the Board erred when it determined that separate disability ratings
under DC 5257 and DC 5259 were precluded as a matter of law under the rule against pyramiding.
Specifically, appellant argues that assigning disability ratings under both DC 5257 and DC 5259
does not violate the rule against pyramiding because DC 5259 does not list any specific symptoms.

18
R. at 64.
19
R. at 5-24.
20
R. at 15; see R. at 5-6.
21
R. at 6.
22
R. at 6, 16-17.
23
R. at 17.
24
Id.
25
R. at 18.

4
He alleges that merely because lateral instability may be contemplated under DC 5259, that does
not mean it cannot be rated separately under DC 5257—as long as such lateral instability is not
compensated twice. Appellant points to the Court's decision in Lyles v. Shulkin to support his
contention, in which the Court held "that evaluation 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."26
Moreover, appellant contends that pooling all manifestations of his left knee disability
under DC 5259, even though certain manifestations can independently support entitlement to
compensation under another DC, is contrary to VA's duty to maximize benefits. Appellant argues
that because VA's duty requires it to exhaust all schedular alternatives for rating disabilities,
including rating a single disability under multiple DCs, appellant is entitled to compensation under
DC 5259 for his symptoms of swelling, popping, locking, stiffness, grating, effusion, and clicking,
and compensation under DC 5257 for lateral instability of his left knee.
Finally, appellant argues that the Board erred when it relied on his November 2019 VA
medical examination because it is inadequate for adjudication purposes. Specifically, he contends
that the opinion falls short of the requirements stated in the Court's Correia decision by failing to
adequately convey information about his functional loss due to pain and explain why certain
required testing could not be performed.
The Secretary defends the Board's decision in full and urges affirmance. The Secretary
contends that DCs 5259 and 5257 contemplate distinct disabilities that involve distinct components
of the knee, and asserts that where, as here, a claimant exhibits instability as a residual of a
meniscectomy, that represents a distinct component of the knee that is only compensable under
DC 5259. Therefore, the Secretary argues that, based on the facts here, the Board was on solid
footing when it concluded that the rule against pyramiding precludes a separate rating under DC
5257 as a matter of law. In addition, at oral argument the Secretary argued that allowing separate
ratings under DC 5259 and DC 5257 as appellant argues would require the Court to exceed our
jurisdiction under 38 U.S.C. § 7252. Finally, the Secretary contends that appellant failed to raise
his argument concerning the adequacy of the November 2019 VA medical examination to the
Board. Alternatively, the Secretary asserts that the Board properly relied on appellant's November

26
29 Vet.App. 107, 109 (2017).

5
2019 VA medical examination and that the examination is adequate for adjudication purposes. The
Secretary argues that the examination sufficiently discusses appellant's functional loss due to pain
and complies with the requirements set out in Correia.

III. ANALYSIS
A. Availability of a Separate Rating
Under DC 5257 when a Claimant Has a Rating Under DC 5259
Appellant's principal argument concerns the interaction among DCs 5257, 5259, and the
rule against pyramiding. The parties do not dispute that appellant is entitled to a 10% disability
rating under DC 5259, which is a favorable determination we could not review in any event.27 The
question at the heart of this case involves whether a claimant can have a separate rating under DC
5257 for lateral instability when the claimant is already rated under DC 5259, which may
contemplate such instability, and there are other residuals that could independently warrant a
compensable rating under DC 5259. Accordingly, we must review the relevant DCs involved in
this appeal and the basic principles underlying this Court's interpretive endeavors concerning those
DCs. After doing so, we conclude that separate ratings are permissible.
1. Legal landscape.
The rating schedule for disabilities represents the average impairment in earning capacity
on civil occupations as a result of each disability and its residuals.28 Generally, all disabilities,
including those arising from a single disease entity, are to be rated separately.29 When more than
one disability rating is applied, the individual evaluations are combined pursuant to 38 C.F.R. §
4.25 "to determine the veteran's overall impairment in earning capacity, with combined evaluations
corresponding to different statutory amounts of monthly disability compensation."30
The rating schedule contains several DCs addressing the evaluation of knee disabilities. As
relevant to this aspect of the appeal, two DCs are in play. But before we address them, we note
that effective February 7, 2021, DC 5257 was amended in a way that significantly changed the

27
See Medrano, 21 Vet.App. at 170.
28
See 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2021); see also Esteban v. Brown, 6 Vet.App. 259, 260 (1994).
29
38 C.F.R. § 4.25(b) (2021) ("Except as otherwise provided in this schedule, the disabilities arising from a single
disease entity . . . are to be rated separately as are all other disabiling [sic] conditions, if any.").
30
Lyles, 29 Vet.App. at 113.

6
criteria for evaluating disabilities under the DC.31 There is no question that the amended regulation
is not applicable to appellant's claim because it was enacted after the Board's decision. Therefore,
the Secretary's attempt to rely on the current—that is, amended—criteria of DC 5257 and the
comments relating to it in the Federal Register adds nothing to our analysis.32 To be perfectly clear,
we have not considered the amended version of DC 5257 in reaching our decision today.
With this preliminary matter out of the way, we turn to the relevant DCs. First, the version
of DC 5257 that is applicable to appellant's claim provides, in full:
Knee, other impairment of:
Recurrent subluxation or lateral instability:
Severe 30
Moderate 20
Slight 10
In addition, DC 5259 (2020) provides a 10% evaluation for "Cartilage, semilunar, removal of,
symptomatic." To underscore, the DC provides nothing more than this one general phrase.
As we have noted, the issue we face is under what circumstances a claimant may obtain
ratings under both DC 5257 and DC 5259. This brings us to VA's rule against pyramiding, which
is a regulatory exception to the general rule that all disabilities are to be rated separately.33 The
relevant regulation provides that evaluation of the "same disability" or the "same manifestation"
under various diagnoses "is to be avoided."34 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.35 Still, 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.36 Two critical points in determining whether a
separate evaluation is warranted are (1) that none of the symptoms are duplicative or overlapping

31
Compare 38 C.F.R. § 4.71a, DC 5257 (2021), with 38 C.F.R. § 4.71a, DC 5257 (2020).
32
See Oral Argument (OA) at 22-25:55, Walleman v. McDonough, U.S. Vet. App. No. 20-7299 (oral argument held
Mar. 24, 2022), http://www.uscourts.cavc.gov/oral_arguments_audio.php.
33
See 38 C.F.R. § 4.14 (2021).
34
Id.; Lyles, 29 Vet.App. at 113; Esteban, 6 Vet.App. at 261.
35
Brady v. Brown, 4 Vet.App. 203, 206 (1993); see Lyles, 29 Vet.App. at 113 (quoting Brady, 4 Vet.App. at 206).
36
Fanning v. Brown, 4 Vet.App. 225, 230 (1993); see Lyles, 29 Vet.App. at 113.

7
with the symptoms of the other conditions—i.e., none of the disabilities share a common
manifestation—and (2) whether that common manifestation would be improperly compensated
more than once.37
Additionally, the Secretary must maximize a claimant's benefits. 38 VA is required to
"render a decision which grants every benefit that can be supported in law while protecting the
interests of the Government." 39 This means the Board is required to "exhaust all schedular
alternatives for rating a disability,"40 including rating a single disability under multiple DCs so
long as doing so does not run afoul of, for example, the rule against pyramiding.41
Finally, questions of regulatory interpretation are ones of law that the Court reviews de
novo.42 The basics of regulatory interpretation are well established. We look first to the text and
structure of a regulation, which is the best indication of its plain meaning.43 If the plain meaning
of the regulation is clear on its face, then such plain meaning controls, and "that is 'the end of the
matter.'"44
2. The rule against pyramiding does not categorically preclude
separate ratings under DCs 5257 and 5259.
With the foregoing general principles in mind, we turn now to the question on appeal:
whether the rule against pyramiding categorically precludes a separate disability rating for lateral
instability under DC 5257, when a claimant is (1) already rated under DC 5259, which may
contemplate such instability if it is a residual of a meniscectomy, and (2) there are other residuals
of a meniscectomy that could independently warrant a compensable rating under DC 5259. We
hold that the rule against pyramiding does not categorically preclude a separate rating under DC
5257 for lateral instability simply because a claimant is also in receipt of a rating under DC 5259.

37
See Lyles, 29 Vet.App. at 118; Esteban, 6 Vet.App. at 262.
38
Morgan v. Wilkie, 31 Vet.App. 162, 167 (2019); Bradley v. Peake, 22 Vet.App. 280, 294 (2008).
39
38 C.F.R. § 3.103(a) (2021); see Morgan, 31 Vet.App. at 167.
40
Morgan, 31 Vet.App. at 164.
41
See id. at 168.
42
See Foster v. McDonough, 34 Vet.App. 338, 344-45 (2021).
43
See Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017).
44
Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner, 513 U.S. 115, 120 (1994)); see also
Kisor v. Wilkie, ––– U.S. –––, 139 S. Ct. 2400, 2415, 204 L. Ed.2d 841 (2019).

8
 The crux of the Secretary's argument is that because the Board viewed appellant's
instability as a residual of his meniscectomy, a separate evaluation under DC 5257 would be
duplicative of an award of compensation under DC 5259. 45 And this is so according to the
Secretary even if there are other symptoms of a meniscectomy that would independently support
a rating under DC 5259. We find this argument unpersuasive for several reasons. As we discuss,
the Secretary fails to consider the general, non-specific language of DC 5259. In addition,
instability—as a distinct manifestation of a knee disability—would not be compensated twice. And
finally, the Secretary's position is inconsistent with VA's duty to maximize benefits.
As an initial matter, we do not find any support for the Secretary's contention that our
decision runs afoul of our jurisdictional limits.46 It is clear that the Court lacks jurisdiction to
"review the content of the rating schedule," and instead has "jurisdiction to interpret 'the language
in the regulations' related to or contained in the rating schedule." 47 We emphasize what our
decision today does not do: review the substantive content of the rating schedule, or as the
Secretary put during oral argument, say that appellant's evaluation under DC 5259 is "not enough"
or that he "deserves more money."48 The decision merely interprets the language relating to the
rating schedule, which is clearly within our jurisdictional gambit.49 Indeed, such interpretative
endeavors are the bread-and-butter of what courts do.
Turning to the merits, we begin with the plain text of DC 5259, which provides a 10%
disability rating for "[c]artilage, semilunar, removal of, symptomatic." 50 In other words, the
regulation unambiguously provides compensation for symptoms that are residuals of a veteran's
meniscectomy. The regulation does not identify (or exclude for that matter) any specific
symptoms—unlike many of the conditions listed in VA's rating schedule.51 Nothing in the plain
language of DC 5259 limits the symptoms of a meniscectomy that may support an evaluation under

45
Secretary's Brief (Br.) at 8-11.
46
The Secretary raised this argument for the first time during oral argument; however, we will still address it because
it goes to our jurisdiction. See 38 U.S.C. § 7252.
47
Foster, 34 Vet.App. at 344 (citing Smith v. Nicholson, 451 F.3d 1344, 1346-47 (Fed. Cir. 2006)).
48
See OA at 48:54-49:10.
49
See Foster, 34 Vet.App. at 344.
50
38 C.F.R. § 4.71a, DC 5259 (2020).
51
See 38 C.F.R. § 4.71a (2020); see also Doucette v. Shulkin, 28 Vet.App. 366, 368 (2017).

9
the broad, general language of this provision. Nor does the regulation enumerate any specific
symptoms that are necessary to support a rating under DC 5259. It is inappropriate for a court to
change a regulation in the way the Secretary's interpretation functionally asks us to do.52
On the other hand, DC 5257 provides disability compensation for a specific condition, as
relevant here, lateral instability of the knee. By its plain terms, 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."53 This
Court has previously held that when a condition is specifically listed in the rating schedule, it may
not be rated by analogy.54 In that regard, we've held that it is most appropriate to rate a condition
using a DC in which the condition is specifically listed, rather than rate the condition under a
general, non-specific provision.55 Thus, when a veteran experiences lateral instability as a residual
of his or her meniscectomy, it is most appropriately rated under DC 5257 (2020) because that
regulatory provision specifically provides for evaluations based (as relevant here) on lateral
instability of the knee. 56 This is true even if lateral instability was the only residual of a
meniscectomy. In such a case, the lateral instability should only be rated under DC 5257 because
that DC specifically provides for lateral instability that is slight, moderate, or severe, potentially
entitling a claimant to more compensation than would be available under DC 5259.57 To hold that
lateral instability must only be rated under DC 5259 because it flows from a meniscectomy would
essentially render DC 5257 redundant in the context of a meniscectomy.58 Indeed, we conclude
that the nature of the rating schedule compels the conclusion that DC 5257 is the appropriate
vehicle by which to evaluate lateral instability of the knee. So, we reject the Secretary's contention

52
See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252 (2010) (declining to read into a statute an express
limitation that Congress did not include in the statute's plain language and holding that the Court of Appeals' decision
to add one "more closely resembles 'invent[ing] a statute rather than interpret[ing] one'" (quoting Pasquantino v.
United States, 544 U.S. 349, 359 (2005)).
53
Delisle v. McDonald, 789 F.3d 1372, 1375 (Fed. Cir. 2015); 38 C.F.R. § 4.71a, DC 5257 (2020).
54
Copeland v. McDonald, 27 Vet.App. 333, 337 (2015).
55
See id. 337.
56
See id.; 38 C.F.R. § 4.71a, DC 5257 (2020).
57
See 38 C.F.R. § 4.71a, DC 5257 (2020).
58
Prokarym v. McDonald, 27 Vet.App. 307, 311 (2015) ("The Court simply cannot accept a construction that would
render . . . [an] entire DC superfluous in this manner.").

10
during argument that any condition or symptom that results from meniscal surgery must be rated
under DC 5259 and cannot be rated under other provisions.59
We note that it strikes us that the Secretary's position is quite broad in its implications. If
the Secretary's position were correct, it would be inappropriate for VA to rate a knee condition
under any DC other than 5259 if the symptom at issue was related to a meniscectomy. Here, that
position would suggest that the Board was wrong to provide a separate evaluation for appellant
under DC 5260 since it appears his "limited, yet noncompensable, flexion of the left knee due to
pain," was also the result of his meniscectomy.60 We see no support at all in the rating schedule to
work such a revolutionary change in how we understand VA to have operated.
Our holding today is also consistent with the principles the Court articulated in Esteban
and Lyles for rating knee disabilities. We held in Esteban that it is possible for a veteran "to have
separate and distinct manifestations from the same injury permitting two different disability
ratings." 61 In Lyles, we held that "the pyramiding inquiry does not end with whether two
disabilities share a common manifestation, but continues to inquire whether that common
manifestation would be improperly compensated more than once." 62 "It follows that, where a
certain manifestation of a disability has not been compensated via an assigned evaluation under a
particular DC, evaluation of that manifestation under another DC would not constitute
pyramiding."63 The key consideration that precludes separate ratings is whether the ratings are
compensating the same manifestation or symptom.64 As applicable here, if an assignment of an
evaluation under DC 5259 is supported with residuals that do not include lateral instability, a
claimant may also be entitled to an evaluation under DC 5257 for lateral instability because that
symptom is a distinct manifestation that does not overlap with any other residuals of a
meniscectomy. We stress that this way of approaching the situation is not rating individual

59
See OA at 19:20-:50.
60
See R. at 16-17; Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (explaining that a VA joints examination must
address the extent of functional loss or limitation caused by pain or a flare-up); DeLuca v. Brown, 8 Vet.App. 202,
205-06 (1995) (requiring VA to consider the disabling effect of painful motion when rating joints).
61
Esteban, 6 Vet.App. at 261 (citing Fanning, 4 Vet.App. at 231).
62
Lyles, 29 Vet.App. at 118.
63
Id.
64
Id. at 118-19.

11
symptoms, but instead is evaluating distinct manifestations from the same injury. And that is
precisely what the rating schedule is meant to accomplish.
We also note that VA's Adjudication Procedures Manual (M21-1), though not binding on
us or the Board, is entirely consistent with our holding today.65 The (M21-1) states: "Evaluation
of a knee disability under 38 CFR [§] 4.71a, DC 5257, DC 5260, or 5261 does not, as a matter of
law, preclude separate evaluation of a meniscal disability of the same knee under . . . DC 5259
(symptomatic removal of semilunar cartilage) . . . ."66 VA notes that the critical factor barring a
separate assignment under DC 5259 is "when all the symptoms of the meniscal disability are used
to support" an assignment under DC 5257.67 That condition does not exist here factually given the
Board's finding that an evaluation under DC 5259 was supported by "swelling, popping, locking,
stiffness, grating, and clicking."68 Thus, the M21-1 supports the notion that the assignment of an
evaluation under DC 5259 does not preclude a claimant from a separate evaluation under DC 5257.
Moreover, permitting a separate rating under DC 5257 is fully consistent with VA's duty
to maximize benefits. VA must render decisions that grant every benefit the law supports and
"exhaust all schedular alternatives for rating a disability,"69 including rating a single disability
under multiple DCs.70 As applicable here, VA has a duty to maximize a veteran's benefits by
assigning a separate rating under DC 5257 for lateral instability of the knee even if the veteran is
assigned a rating under DC 5259 for symptoms independent of such instability. The mere fact that
instability flows from a meniscectomy does not mean that the veteran is precluded from the
evaluation contemplated under DC 5257. VA's duty requires it to resolve doubt in favor of
veterans, and the Board did not fulfill its obligations by precluding a rating under DC 5257 when

65
See Healy v. McDonough, 33 Vet.App. 312, 320-21 (2021); Overton v. Wilkie, 30 Vet.App. 257, 264 (2018).
66
M21-1, pt. V, subpt. iii, ch. 1, § B.4.e. (Separate Evaluation of Meniscal Disabilities),
www.knowva.ebenefits.va.gov (last visited June 2, 2022).
67
Id. (emphasis added). We note that the Board should have discussed this M21-1 provision in its decision because it
was germane to the issue the Board decided. See Healy, 33 Vet.App. at 320-21; Overton, 30 Vet.App. at 264. Given
our conclusion about the interpretation of the relevant DCs, something we review de novo, it is not necessary for us
to remand the matter for the Board to discuss the M21-1 provision in the first instance. Nonetheless, we remind the
Board that it must discuss relevant M21-1 provisions when it renders its decisions.
68
R. at 17.
69
Morgan, 31 Vet.App. at 164 (emphasis omitted).
70
See id. at 168; 38 C.F.R. § 3.103(a).

12
appellant's residuals, not including instability, independently support his assignment of an
evaluation under DC 5259.71
Finally, we can't say that the Board's error was harmless.72 The Board expressly found that
appellant suffers from slight instability in his left knee.73 The Secretary's attempt to downplay this
finding as mere reporting of medical history is contrary to our decisions in English v. Wilkie74 and
Tedesco v. Wilkie,75 in which we held that the Board cannot categorically favor objective medical
evidence over lay reports of instability.76 Even if the finding of instability was based only on
appellant's lay statements—a matter on which we express no opinion—appellant was competent
to make such observations.77 We acknowledge that the Board did not state that appellant's slight
instability was "lateral" instability as contemplated under DC 5257.78 But we note that the record
at least suggests it was lateral instability.79 In any event, this Court is not in a position to weigh in
on such a factual question.80 Here, the Board found that appellant suffers from slight instability,
and the facts suggest that he may be entitled to an evaluation under DC 5257 when a factfinder
views this matter through the correct legal lens. That is enough to reject the claim that any error
here is harmless.
In sum, we conclude that an assignment of a knee disability rating under DC 5259 does not
preclude as a matter of law a separate evaluation under DC 5257 for lateral instability of the same
knee. Therefore, we reverse the Board's determination that assigning a disability rating under DC
5257 is categorically precluded by the rule against pyramiding when there is also a disability rating

71
R. at 17; Morgan, 31 Vet.App. at 164, 168; see 38 C.F.R. §§ 3.103(a), 4.3 (2021).
72
See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v.
Sanders, 556 U.S. 396, 409 (2009) (explaining that "the burden of showing that an error is harmful normally falls
upon the party attacking the agency's determination").
73
R. at 6; see also R. at 59 (noting appellant's history of slight lateral instability).
74
30 Vet.App. 347 (2018).
75
31 Vet.App. 360 (2019).
76
See id. at 367; English, 30 Vet.App. at 352-53.
77
See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006) (noting that claimants are competent to report
on observable symptoms); see also Layno v. Brown, 6 Vet.App. 465, 469 (1994) (distinguishing competence from
credibility).
78
See R. at 6.
79
R. at 59 (noting appellant's history of slight lateral instability).
80
See Tadlock v. McDonough, 5 F.4th 1327, 1336-37 (Fed. Cir. 2021).

13
assigned under DC 5259. We remand the matter for the Board to properly consider the evaluation
criteria of DC 5257 to appellant's claim under the correct legal standard.
B. Inadequacy of the November 2019
VA Medical Examination
Appellant also contends that his November 2019 VA medical examination is inadequate
for adjudication purposes and that the Board erred by relying on it to deny him higher evaluations
for his left knee condition. 81 Specifically, appellant argues that the examination does not
adequately discuss the disabling effect of his pain, as required by Correia.82 The Secretary argues
that appellant failed to raise this argument below, and therefore should not be permitted to do so
now. 83 Alternatively, the Secretary asserts that the examination is adequate for adjudication
purposes. 84 There is no question that the Board clearly relied on the 2019 examination in its
decision. Yet, the Board did not expressly address the adequacy of the examination in its decision
even though that determination is a factual finding for the Board to make.85 In such a case, it is
entirely within the Court's discretion to infer that the Board implicitly determined that the
examination upon which it relied was adequate.86 However, we conclude that, in the context of
this particular appeal, where we have already determined that remand is warranted, the Board
should address exam adequacy in the first instance. Even though we will not address the question
of adequacy, the Court will provide guidance to the Board for its consideration of this issue on
remand, pursuant to Quirin v. Shinseki.87

81
See Appellant's Br. at 17-22. Appellant also contends that the Board erred by relying on the July 2013 VA medical
examination, which was previously determined to be inadequate. Id.; see R. at 174-76. Given the remand of this matter,
the Court will also not address this argument on the merits. See Best v. Principi, 15 Vet.App. 18, 20 (2001). However,
we note that although inadequate examinations can retain some probative value, on remand the Board must explain
what parts of the inadequate examination it determines to be probative and support that determination with an adequate
statement of reasons or bases. See Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2017) (per curiam) ("[E]ven if a medical
opinion is inadequate to decide a claim, it does not necessarily follow that the examination is entitled to absolutely no
probative weight.").
82
See Appellant's Br. at 17-22.
83
Secretary's Br. at 16.
84
Secretary's Br. at 17-18.
85
D'Aries v. Peake, 22 Vet.App. 97, 104 (2008) ("Whether a medical opinion is adequate is a finding of fact.").
86
See Miller v. Wilkie, 32 Vet.App. 249, 260-62 (2020) (discussing review of implicit fact-finding concerning
credibility issues and canvassing other situations in which the Court has reviewed the Board's implicit fact-finding).
87
See 22 Vet.App. 390, 396 (2009) (holding that the Court can address other arguments after determining that remand
is warranted).

14
 Once VA provides a medical examination, it must ensure that the examination is adequate.
A medical examination is adequate when it is "based upon consideration of the veteran's . . .
medical history and examinations and also describes the disability in sufficient detail" so that the
Board's "evaluation of the claimed disability will be a fully informed one."88 "It is the factually
accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value
to a medical opinion." 89 Additionally, medical examinations must comply with this Court's
decision in Correia. There, the Court held that for a VA joints examination to be adequate, the
examination must "include the results of range of motion testing described in the final sentence of
[38 C.F.R.] § 4.59."90 Section 4.59 requires that the "joints involved should be tested for pain on
both active and passive motion, in weight-bearing and non[-]weight-bearing and, if possible, with
the range of the opposite undamaged joint." 91 When the examiner is "unable to conduct the
required testing or concludes that the required testing is not necessary, . . . he or she should clearly
explain why that is so."92
On remand, should the Board continue to rely on the November 2019 VA medical
examination, it must specifically address whether the examination is adequate for adjudication
purposes, including whether it fails to comply with Correia. In that regard, the examiner stated
that "where possible," appellant's knees "were assessed for both weight[-]bearing and non[-
]weight[-]bearing testing," noting that pain was present during portions of the examination.93 The
examiner does not indicate whether the range-of-motion measurements were obtained in a
weightbearing position, nor does she specify where appellant's pain sets in during the range-of-
motion test.94 Additionally, the Board must address the fact that the examiner applied the tests
"where possible" and does not explain why the tests could not be performed in certain situations.95
If the Board determines that the examination is adequate, it must provide a full statement of its

88
D'Aries, 22 Vet.App. at 104 (internal quotations omitted).
89
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).
90
Correia, 28 Vet.App. at 169-70.
91
38 C.F.R. § 4.59 (2021).
92
Correia, 28 Vet.App. at 170.
93
R. at 64.
94
Id.
95
See Correia, 28 Vet.App. at 170.

15
reasons for such a determination sufficient to allow a reviewing court to engage in judicial review.
If the Board determines that the examination is not adequate, the Board must obtain a new medical
examination.
C. Appellant's Rights on Remand
Because the Court is remanding this matter to the Board for readjudication, the Court need
not address any remaining arguments now, and appellant can present them to the Board.96 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA's postremand notice.97 The Board must consider any such additional evidence or
argument submitted.98 The Board must also proceed expeditiously.99

IV. CONCLUSION
After consideration of the parties' briefs, the governing law, and the record, the Court
REVERSES the Board's determination that appellant is categorically precluded from obtaining a
separate disability rating under DC 5257; we SET ASIDE the August 27, 2020, Board decision
and REMAND this matter for further proceedings consistent with this decision.

96
Best v. Principi, 15 Vet.App. 18, 20 (2001).
97
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O'Rourke, 30 Vet.App.
92 (2018).
98
Kay v. Principi, 16 Vet.App. 529, 534 (2002).
99
38 U.S.C. §§ 5109B, 7112.

16