Langdon: Rating thoracic/lumbar spine conditions

Langdon v. Wilkie, docket no. 18-0520 (February 5, 2020)

HELD: “[T]he functional impairment caused by appellant’s non-service-connected lumbar spine disability cannot be considered when rating his thoracic spine disability where there is medical evidence distinguishing between impairments caused by the thoracic and lumbar spine disabilities.”  

SUMMARY: Veteran filed a claim for service connection for thoracic and lumbar spine disabilities and was service-connected for the thoracic spine condition, rated 0%. He appealed and the Board remanded for the RO to address the lumbar spine disability, noting that the thoracic and lumbar spine are evaluated together in VA’s rating schedule. 

The RO obtained a medical opinion that concluded that his lumbar spine disability was not related to service, that there was no functional impairment due to the thoracic spine disability, and that all the veteran’s current functional impairment (decreased range of motion) was due to the nonservice-connected lumbar spine disability. The Board ultimately granted a 10% rating for the thoracic spine disability under 38 C.F.R. §§ 4.45 and 4.59, but denied a higher rating. 

On appeal to the Court, the veteran argued that the Board incorrectly applied 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 because that DC considers the thoracic and lumbar spine as a single unit. 

DC 5237 rates disabilities of the thoracic and lumbar spine based on range of motion of the thoracolumbar spine – and describes those ranges using the word “thoracolumbar.” The Court noted this language, but relied on the first regulation in VA’s rating schedule, 38 C.F.R. § 4.1, which makes it “clear that the rating schedule is meant to compensate only service-connected disabilities.” The Court thus rejected the veteran’s argument because it “would mean that he would be compensated for his non-service-connected lumbar spine disability simply because he happens to have a service-connected thoracic spine condition.” The Court found that while DC 5237 “calls for the thoracic and lumbar spines generally to be rated as a unit … it does not mandate that they be rated together.” 

The Court emphasized that the regulation combines the thoracic and lumbar spine for rating purposes – and that “[t]he ‘logically up-stream element of service-connectedness’ is distinct from the ‘logically downstream element of compensation level.’” (quoting Grantham v. Brown 114 F.3d 1156, 1158-59 (Fed. Cir. 1997)). Because VA denied service connection for the veteran’s lumbar spine disability, it was not required to consider the lumbar spine when rating his service-connected thoracic spine disability.