Case: 20-1789 Document:46 Page:1_ Filed: 06/09/2021
Gnited States Court of Appeals
for the Federal Circuit
ROBERT E. LANGDON,
Claimant-Appellant
Vv.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
2020-1789
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-0520, Judge Michael P. Allen,
Judge Joseph L. Toth, Judge Coral Wong Pietsch.
Decided: June 9, 2021
CHARLES COLLINS-CHASE, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, Washington, DC, ar-
gued for claimant-appellant. Also represented by KAYVON
GHAYOUMI, JEANETTE ROORDA.
MOLLIE LENORE FINNAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by JEFFREY B. CLARK, ROBERT EDWARD
KIRSCHMAN, JR., LOREN MISHA PREHEIM; MEGHAN
ALPHONSO, BRIAN D. GRIFFIN, Office of General Counsel,
Case: 20-1789 Document:46 Page:2 _ Filed: 06/09/2021
2 LANGDON v. MCDONOUGH
United States Department of Veterans Affairs, Washing-
ton, DC.
Before MOORE, Chief Judge*, PROST™ and CHEN, Circuit
Judges.
Moore, Chief Judge.
Robert E. Langdon appeals a final decision of the
United States Court of Appeals for Veterans Claims that
denied him a higher rating for his service-connected tho-
racic spine disability. See J.A. 1-12. Because that holding
was based on a misinterpretation of the controlling regula-
tions, we reverse.
I
Mr. Langdon served on active duty in the United
States Navy from 1980 until 1996. After leaving service,
Mr. Langdon sought disability compensation for a “spine
condition especially [the] thorac[ic] [and] lumbar regions.”
J.A. 429. After various proceedings, the Department of
Veterans Affairs (VA) determined Mr. Langdon had a ser-
vice-connected thoracic spine injury, a non-service-con-
nected lumbar spine injury, and only fifty-five degrees of
forward flexion for his thoracolumbar spine.! It also deter-
mined that Mr. Langdon’s service-connected thoracic spine
injury caused no functional impairment. Instead, it was
Mr. Langdon’s non-service-connected lumbar spine injury
that caused his reduced flexion. Because his service-con-
nected injury caused no functional impairment, the VA
“Chief Judge Kimberly A. Moore assumed the posi-
tion of Chief Judge on May 22, 2021.
™~ Circuit Judge Sharon Prost vacated the position of
Chief Judge on May 21, 2021.
! Collectively, the thoracic and lumbar spine seg-
ments make up the thoracolumbar spine.
Case: 20-1789 Document:46 Page:3 _ Filed: 06/09/2021
LANGDON v. MCDONOUGH 3
assigned Mr. Langdon a zero percent disability rating un-
der
38 C.F.R. § 4.71a.
Mr. Langdon appealed the VA’s determination to the
Board of Veterans’ Appeals, only challenging the zero per-
cent rating for his thoracic spine injury. He claimed enti-
tlement to a twenty percent rating based on his limited
thoracolumbar flexion. The Board disagreed, but increased
Mr. Langdon’s rating to ten percent based on upper back
pain under a different regulation. See
38 C.F.R. §§ 4.45(h,
4.59. Mr. Langdon then appealed to the Veterans Court,
again arguing he was entitled to a twenty percent rating.
The Veterans Court affirmed the Board’s decision.
Mr. Langdon appeals. We have jurisdiction under
38
U.S.C. § 7292.
II
Title 38 entitles veterans to benefits, including com-
pensation for disabilities resulting from personal injuries
suffered during active service.
38 U.S.C. §§ 1110, 1131.
For each service-connected disability claim, the VA must
determine whether the veteran suffers from a qualifying
disability. If so, the VA must rate that disability, i.e., de-
termine how much a veteran’s disability impairs his earn-
ing capacity. See
id. § 1155. To make that determination,
the VA is required to “adopt and apply a schedule of rat-
ings.” Id.
The VA’s rating schedule for the musculoskeletal sys-
tem is found in
38 C.F.R. § 4.7la. That regulation is sub-
divided into several tables, each of which addresses a
number of diagnostic codes (DCs). Those codes are “arbi-
trary numbers” that “show[] the basis of the evaluation as-
signed” to a veteran’s disability. Jd. § 4.27. Diagnostic
Code 5237, which corresponds to Mr. Langdon’s injury, de-
notes a lumbosacral or cervical spine strain. One table in
§ 4.71a provides the General Rating Formula for spine dis-
abilities, including for DC 5237:
Case: 20-1789 Document:46 Page:4 Filed: 06/09/2021
4 LANGDON v. MCDONOUGH
GENERAL RATING FORMULA FOR DISEASES | RATING
AND INJURIES OF THE SPINE
With or without symptoms such as pain
(whether or not it radiates), stiffness, or
aching in the area of the spine affected by
residuals of injury or disease
Unfavorable ankylosis of the entire spine 100
Unfavorable ankylosis of the entire thora- | 50
columbar spine
Unfavorable ankylosis of the entire cervical | 40
spine; or, forward flexion of the thoracolum-
bar spine 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine
Forward flexion of the cervical spine 15 de- | 30
grees or less; or, favorable ankylosis of the
entire cervical spine
Forward flexion of the thoracolumbar spine | 20
greater than 30 degrees but not greater
than 60 degrees; or, forward flexion of the
cervical spine greater than 15 degrees but
not greater than 30 degrees; or, the com-
bined range of motion of the thoracolumbar
spine not greater than 120 degrees; or, the
combined range of motion of the cervical
spine not greater than 170 degrees; or, mus-
cle spasm or guarding severe enough to re-
sult in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed lordosis,
or abnormal kyphosis
Case: 20-1789 Document:46 Page:5 _ Filed: 06/09/2021
LANGDON v. MCDONOUGH 5
Forward flexion of the thoracolumbar spine | 10
ereater than 60 degrees but not greater
than 85 degrees; or, forward flexion of the
cervical spine greater than 30 degrees but
not greater than 40 degrees; or, combined
range of motion of the thoracolumbar spine
ereater than 120 degrees but not greater
than 235 degrees; or, combined range of mo-
tion of the cervical spine greater than 170
degrees but not greater than 335 degrees;
or, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait
or abnormal spinal contour; or, vertebral
body fracture with loss of 50 percent or
more of the height
38 C.F.R. § 4.71a (reformatted). Several notes accompany
the General Rating Formula, which explain its sundry
parts. Note (2) explains that the “[nJormal forward flexion
of the thoracolumbar spine is zero to 90 degrees”; Note (5)
describes unfavorable ankylosis, including with reference
to the “entire thoracolumbar spine’; and Note (6) explains
how the cervical and thoracolumbar spines are generally
rated separately. Additionally, Plate V in § 4.71a depicts
motion of the thoracolumbar spine:
Case: 20-1789 Document:46 Page:6 _ Filed: 06/09/2021
6 LANGDON v. MCDONOUGH
40
4
Il
This appeal requires 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 re-
sult of military service... or when it is not possible to sep-
arate the functional limitations of an injury and assign
them to each part of the spine and one part is service con-
nected.” 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 al-
low the VA to distinguish between the thoracic and lumbar
spine segments. It uses the phrase “thoracolumbar spine,”
Case: 20-1789 Document:46 Page:7 Filed: 06/09/2021
LANGDON v. MCDONOUGH 7
not the words thoracic or lumbar. Not once does the Gen-
eral 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 lum-
bar spine segments as a unit. We cannot rewrite that text
to include criteria absent from its face. Cf. Bates v. United
States,
522 U.S. 23, 29 (1997) ([W]e ordinarily resist read-
ing words or elements into a statute that do not appear on
its face.”).
In fact, the General Rating Formula was amended in
2003 to eliminate separate criteria for the thoracic and
lumbar spine segments. See Schedule for Rating Disabili-
ties; The Spine,
68 Fed. Reg. 51,454 (Aug. 27, 2003) (Final
Rule). Before then, the VA was required to consider sepa-
rate diagnostic characteristics for the thoracic and lumbar
spine segments. See
38 C.F.R. § 4.71a (2002). For exam-
ple, the VA had to evaluate range of motion for each spine
segment:
5291 Spine, limitation of motion of, dorsal?:
SOVELC... 2... cece ccc ec cece eee ceecee ees eeeeeens 10[%]
Moderate.............. ccc ceccec cee eeeeeeeeeees 10[%]
Slight... cece ces ee ccc ceeceeeeeeeees 0[%]
5292 Spine, limitation of motion of, lumbar:
SOVELC... 2... cece ccc cc cece eee cee ces eeeee ensues 40[%]
Moderate............c.c ccc cceceecec eee eeeeeeues 20[%]
2 The words dorsal and thoracic are interchangeable.
Case: 20-1789 Document:46 Page:8 Filed: 06/09/2021
8 LANGDON v. MCDONOUGH
Id. (reformatted excerpt from ratings table for “The
Spine”). That task proved difficult, however, so the VA pro-
posed “that the general rating formula provide criteria for
the cervical and thoracolumbar spinal segments only.”
Schedule for Rating Disabilities; The Spine,
67 Fed. Reg.
56,509, 56,512 (Gept. 4, 2002) (Proposed Rule). It reasoned
that, “[b]ecause the thoracic and lumbar segments ordinar-
ily move as a unit, it is clinically difficult to separate the
range of movement of one from that of the other.”
Id. Con-
sistent with this, the VA adopted § 4.71a to require consid-
eration of the thoracolumbar spine as a whole.
The 2003 amendment also shows the VA knew how to
promulgate regulations that parse out diagnostic criteria
by individual segments of the spine. Before 2003, the Gen-
eral Rating Formula distinguished between the cervical,
thoracic, and lumbar spine segments. After 2003, that
same formula distinguished only between the thoracolum-
bar spine and the cervical spine. Despite knowing how to
separate out spine segments, the VA consciously chose to
treat the segments that comprise the thoracolumbar spine
as aunit. That is “powerful evidence” the VA did not in-
tend its regulations to allow for separate evaluation of the
thoracic and lumbar spine segments. Cf. Natl Org. of Vet-
erans’ Advocs., Inc. v. Sec’y of Veterans Affs.,
981 F.3d 1360,
1385 (Fed. Cir. 2020) (en banc) (explaining silence, despite
Congress’ knowledge of the relevant issue, was “powerful
evidence” of statutory meaning).
Contrary to the government’s argument, our interpre-
tation of the plain regulatory language does not allow vet-
erans to receive compensation for non-service-connected
disabilities. That is, the VA suggests, under the interpre-
tation we adopt today, Mr. Langdon will improperly receive
compensation for his whole thoracolumbar spine (including
his non-service-connected lumbar spine injury) despite
having only a service-connected injury to the thoracic
Case: 20-1789 Document:46 Page:9 _ Filed: 06/09/2021
LANGDON v. MCDONOUGH 9
spine. But 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 For-
mula to apply, a veteran must first show that he has a ser-
vice-connected disability. Cf Grantham v. Brown,
114
F.3d 1156, 1158-59 (Fed. Cir. 1997) (noting service-con-
nectedness 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 thora-
columbar 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 move-
ment 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. We will not
rewrite the plain regulatory language because the VA
would like to abandon its bright-line rule in this case.
IV
For all these reasons, we hold the VA’s regulation re-
quires it to rate the thoracolumbar spine as a unit when
applying the General Rating Formula. Under this inter-
pretation, the VA does not dispute that Mr. Langdon has a
service-connected thoracic injury with reduced thoracolum-
bar flexion (fifty-five degrees) that entitles him to a twenty
percent disability rating under the General Rating For-
mula. We therefore hold that a remand is unnecessary.
Accordingly, we reverse.
REVERSED
COSTS
Costs to Mr. Langdon.
