Langdon: Federal Circuit on Lumbar and Thoracic Spine Conditions Being Treated Together

Langdon v. McDonald, Case Number 2020-1789, decided June 9, 2020 discusses the intersection of lumbar and thoracic spine conditions and how they are interrelated and as such should be rated. 

The VA had determined the veteran had a service connected thoracic spine injury and a non-service connected lumbar spine injury with only 55 degrees of forward flexion for his thoracolumbar spine, but that his service connected thoracic spine condition did not cause any functional impairment.  Essentially, the VA argued the limitation in range of motion was related to the veteran’s non-service connected lumbar injury.  As a result, the veteran only had a 0% rating.  He sought a 20% rating under Diagnostic Code 5237. 

The Court framed the appeals as:

require[ing] us to determine if the VA’s own regulation requires it to treat the thoracolumbar spine as a unit when applying the General Rating Formula. The Veterans Court held the General Rating Formula “calls for the thoracic and lumbar spine generally to be rated as a unit. But it does not mandate that they be rated together.” J.A. 8 (emphasis in original). It interpreted the General Rating Formula to “provide[] for such unitary treatment only when both segments of the spine are injured as a result of military service . . . 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.” J.A. 8–9. We reject that interpretation and hold the plain language of the regulation requires that the VA treat the thoracolumbar spine as a unit when applying the General Rating Formula.

 

By its terms, the General Rating Formula does not allow the VA to distinguish between the thoracic and lumbar spine segments. It uses the phrase “thoracolumbar spine,” not the words thoracic or lumbar. Not once does the General Rating Formula separate out the segments of the thoracolumbar spine. Likewise, the Notes accompanying the General Rating Formula repeatedly use the word thoracolumbar, but do not refer to the thoracic and lumbar spine segments separately. Additionally, the diagrams in Plate V depict thoracolumbar flexion as the movement of the entire thoracolumbar spine. The plain language of the General Rating Formula, thus, treats the thoracic and lumbar spine segments as a unit. We cannot rewrite that text to include criteria absent from its face.

Id. at *6-7.

The Court also rejected the argument that this interpretation would allow for compensation for non-service connected disabilities, explaining:

we agree with Mr. Langdon that this argument rests on the incorrect premise that he lacks the injury for which he will receive compensation—a service-connected thoracolumbar spine injury. For the General Rating Formula to apply, a veteran must first show that he has a service-connected disability. Cf. Grantham v. Brown, 114 F.3d 1156, 1158–59 (Fed. Cir. 1997) (noting service-connectedness is “logically up-stream” from compensation level). Only then does the General Rating Formula set the veteran’s rating level for that service-connected injury. The VA made the choice in its regulation to treat the thoracolumbar spine as a unit for rating purposes “[b]ecause the thoracic and lumbar segments ordinarily move as a unit,” making it “clinically difficult to separate the range of movement of one from that of the other.” Proposed Rule, 67 Fed. Reg. at 56,512. The VA is entitled to make such a choice to aid in properly assessing and rating injuries.

Id. at *9.

This is a fairly narrow case, but one that is instructive on how the VA often attempts to the add to its own regulations language that would limit benefits, without actually going through the process of actually amending the regulations.

Decision by Chief Judge Moore joined in by Judges Prost and Chen.

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