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. 

Thompson: RATING FUNCTIONAL LOSS DUE TO PAIN ON MOTION

Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. Mar. 8, 2016)

HELD: Section 4.40 does not provide for a rating separate from 38 C.F.R. § 4.71a.

SUMMARY: Section 4.40 “speaks generally in terms of disability of the musculoskeletal system, and explains what may cause a functional loss,” but does not explicitly provide a rating for any disability. Instead, “§ 4.40 must be viewed in light of the explicitly listed disability ratings for the musculoskeletal system in § 4.71a.” The guidance provided in § 4.40 “is intended to be used in understanding the nature of a veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”

In this case, the veteran was rated 20% for his back condition and appealed for a higher rating. The Board determined that he was not entitled to a higher rating because his pain did not limit his flexion to 30 degrees or less, which is what is required for the higher rating. The Veterans Court agreed, noting that the Board had conceded that Mr. Thompson had additional functional loss due to pain – but that functional loss still did not restrict his motion to 30 degrees or less, such as to warrant a higher rating. 

The Federal Circuit affirmed the CAVC’s decision, stating that 38 C.F.R. § 4.40 “makes clear that functional loss may be due to pain and that pain may render a part seriously disabled.” Nevertheless, the Court maintained that “an applicant for disability benefits is rated based on the criteria set forth in § 4.71a.”

FULL DECISION