Langdon: Lumbar and Thoracic Spine Conditions

Langdon v. Wilkie, Case Number 18-0520, decided February 5, 2020 discusses the intersection of lumbar and thoracic spine conditions and how they are interrelated and as such should be rated. 

The veteran sought service connection for lumbar and thoracic spine disabilities and was rated 10% for a thoracic spine disability for painful but denied service connection for the lumbar spine after a VA examination found the in-service lumbar strain did not have caused the current lumbar condition.  The lumbar spine denial was not appealed.  Instead,

Appellant argues that the Board incorrectly applied Diagnostic Code (DC) 5237 in denying a disability rating greater than 10% for his service-connected thoracic spine disability. He contends that the plain language of DC 5237 considers the thoracic and lumbar spine as a single unit and that the Board was required to consider them as such, rather than separating the symptoms associated with each. He asserts that under this interpretation, he is entitled to a 20% disability rating because the evidence of record shows forward flexion not greater than 60 degrees. He relies on a 2003 amendment to the general rating formula in which VA proposed to rate the thoracic and lumbar spine as the "thoracolumbar spine" on the basis that they generally moved as a single unit.  Based on this amendment, appellant argues that DC 5237 is clear that his thoracic and lumbar spine disabilities must be considered together.

Id. at *3.

The Court held:

This matter was submitted to a panel of the Court to address whether a non-service connected lumbar spine disability must be considered in rating a service-connected thoracic spine disability under 38 C.F.R. § 4.71a and the General Rating Formula for Diseases and Injuries of the Spine. Given the plain language of the rating formula, read in the context of the regulatory scheme as a whole, we hold that 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.

Id. at *1.

The Court framed the veteran’s argument as: “a contention that VA determined that the

thoracolumbar spine was to be treated as a single unit for all purposes and that it is no longer appropriate to consider the thoracic and lumbar regions separately.”  Id. at *7.  The Court then noted:

it is true that DC 5237 calls for the thoracic and lumbar spines generally to be rated as a

unit. But it does not mandate that they be rated together. DC 5237 provides for such unitary treatment only when both segments of the spine are injured as a result of military service, that is, only when they are both service connected, or when it is not possible to separate the functional limitations of an injury and assign them to each part of the spine and one part is service connected.

Id. at *7-8.  The Court then stated:

Here, we have unchallenged medical evidence attributing appellant's functional impairment solely to his non-service-connected lumbar section of the spine. In this situation–one that perhaps will not be common–the medical evidence is sufficient to carry

out the overall goal of the rating schedule to compensate for injuries that are "a result of or incident to military service."

Id. at *9.

The Court also considered a jurisdictional question.  Appellant argued the Court did not jurisdiction to determine DC 5237 allowed thoracic and lumbar spine disabilities to be rated separately because Congress precluded the Court from re-reviewing the disability schedule.  But, the Court noted it did have jurisdiction over cases involving interpretation of the regulations.  It noted:

appellant's challenge to the Board's decision involves the correct interpretation of DC 5237 when read in the context of the entire regulatory scheme–namely, what does "thoracolumbar" refer to when only one of the two conditions is service connected. Such question falls squarely in the exception permitting this Court to consider the rating schedule, that is, the Court may consider the rating schedule when the Court interprets regulatory language.

Id. at *6.

This is a fairly narrow case where the lumbar disability denial was not appealed and their was evidence separating the thoracic and lumbar spine disabilities.  The case has been appealed to the Federal Circuit.

Decision by Judge Allen and jointed in by Judges Pietsch and Toth.

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