UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

No. 18-0520 

ROBERT E. LANGDON, APPELLANT, 

V. 

ROBERT L. WILKIE, 

SECRETARY OF VETERANS AFFAIRS, APPELLEE. 

On Appeal from the Board of Veterans' Appeals 

(Argued December 13, 2019 Decided February 5, 2020) 

Charles Collins-Chase, of Washington, D.C., for the appellant. 

Shir Davidovicz, with whom Catherine C. Mitrano, Acting General Counsel; Mary Ann 

Flynn, Chief Counsel; and James B. Cowden, Deputy Chief Counsel, all of Washington, D.C., 

were on the brief for the appellee. 

Before PIETSCH, ALLEN, and TOTH, Judges. 

ALLEN, Judge: Appellant Robert E. Langdon served the Nation honorably in the United 

States Navy. He appeals a November 1, 2017, Board of Veterans' Appeals decision that granted a 

disability rating of 10% but no higher for a service-connected thoracic spine disability.1

 On June 

13, 2019, the Court issued a single-judge memorandum decision affirming the Board's decision. 

Appellant filed a motion for reconsideration or, in the alternative, panel review. The Court granted 

appellant's motion for reconsideration and withdrew the June 2019 memorandum decision. 

This matter was submitted to a panel of the Court to address whether a non-serviceconnected 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 

 

1

 The Board's grant of a 10% disability rating is a favorable finding that the Court will not disturb. See Medrano v. 

Nicholson, 21 Vet.App. 165, 170-71 (2007). The Board also granted service connection for tinnitus, another favorable 

finding we will not disturb. Id. 
2 

is medical evidence distinguishing between impairments caused by the thoracic and lumbar spine 

disabilities. Therefore, we will affirm the Board's decision. 

I. FACTS AND PROCEDURAL HISTORY

 Appellant served on active duty in the Navy from January 1980 to October 1996.2 In July 

2009, he filed a claim for service connection for a spine condition, "especially, the thorac[ic] [and] 

lumbar regions."3 In September 2009, the regional office (RO) granted service connection for a 

thoracic spine condition and awarded a noncompensable rating.4 Appellant filed a Notice of 

Disagreement with that disability rating and ultimately perfected an appeal to the Board. In a 

March 2014 decision, the Board remanded appellant's thoracic spine rating claim for a new VA 

medical examination.5 The Board also determined that the RO had not adjudicated appellant's 

claim for service connection for a lumbar spine disability.6 Citing 38 C.F.R. § 4.71a, the Board 

noted that "[a]ny decision with respect to the lumbar spine will affect the evaluation of the thoracic 

spine because they are evaluated together under the Rating Formula for Diseases and Injuries of 

the Spine." 7 Thus, the Board directed the RO to adjudicate the lumbar spine claim before 

readjudicating appellant's thoracic spine rating. Appellant did not object to the Board's remand 

instructions.8

 In a May 2016 VA examination report, the examiner concluded that appellant's lumbar 

spine disability "is less likely than not" related to an in-service lumbar strain.9

 The examiner also 

noted that there was "no current functional limitation related to [appellant's] thoracic condition" 

and that his "decreased [range of motion] was caused by or related to [his] lumbar spine 

condition."10 Appellant has never contested the adequacy of this examination and his counsel 

 

2

 Record (R.) at 250-54. 

3

 R. at 1025. 

4

 R. at 968-76. 

5

 R. at 685-93. 

6

 R. at 689. 

7 Id. 

8 See Oral Argument at 13:30-14:30, Langdon v. Wilkie, U.S. Vet. App. No. 18-0520 (oral argument held Dec. 13, 

2019), https://www.youtube.com/watch?v=tvw9dXri0js [hereinafter O.A.]. 

9

 R. at 93. 

10 Id. 
3 

affirmatively accepted its adequacy at oral argument.11 In an August 2016 rating decision, the RO 

denied service connection for a lumbar spine condition.12 Appellant conceded at oral argument 

that he had not appealed that decision and it became final.13

 In the November 2017 decision on appeal, the Board granted a 10% disability rating 

pursuant to 38 C.F.R. §§ 4.45 and 4.59 for appellant's thoracic spine condition based on his 

subjective reports of painful motion.14 However, the Board denied a higher rating based on the 

rating criteria. The Board relied on the May 2016 VA examination report that found no functional 

limitation due to his thoracic disability and concluded that appellant "had no pain on examination, 

to include after repetitive motion, and no other symptoms approximating a schedular evaluation in 

excess of "10%.15 The Board also acknowledged its March 2014 remand and found substantial 

compliance because the RO had adjudicated appellant's lumbar spine claim, which was denied in 

August 2016 and which appellant did not appeal.16 This appeal followed. 

II. PARTIES' ARGUMENTS

 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. He further argues that to the extent the DC is 

 

11 O.A. at 23:30-25:25. 

12 R. at 52-56. 

13 O.A. at 42:23-42:30. 

14 R. at 16. 

15 Id.

16 R. at 5. 
4 

ambiguous, the Board erred by not resolving any ambiguity in his favor under the "pro-veteran 

canon" the Supreme Court articulated in Brown v. Gardner.

17

 In his motion for reconsideration, appellant also for the first time challenged this Court's 

jurisdiction. He suggested that the Court exceeded its jurisdiction by inappropriately reviewing the 

rating schedule. In particular, he asserted that if the Court interpreted the rating schedule in such a 

way that his thoracic and lumbar spine injuries were not rated together, we would violate the limits 

Congress placed on our jurisdiction as it relates to the rating schedule.18

 The Secretary argues that appellant's contentions lack merit because the context of the DC 

makes it plain that service connection must first be established before a rating can be assigned for 

a disability and that service connection and an appropriate rating are distinct concepts. The 

Secretary contends that the rating schedule applies only to service-connected injuries, which in 

this case would not include impairment due to appellant's lumbar spine disability. The Secretary 

also argues that VA is required to differentiate between the effects of service- and non-serviceconnected disabilities in assigning appropriate ratings and did so here in relying on medical 

evidence that distinguished between appellant's thoracic and lumbar conditions. Thus, the 

Secretary asserts that appellant has not met his burden of demonstrating error in the Board's 

decision. Moreover, the Secretary argues that the DC is not ambiguous and therefore a pro-veteran 

canon is not required in interpreting it. Finally, the Secretary does not contest our jurisdiction to 

interpret DC 5237. 

III. ANALYSIS 

A. Legal Framework 

Appellant's service-connected thoracic spine disability is rated pursuant to DC 5237 under 

the General Rating Formula for Diseases and Injuries of the Spine.19 Under this formula, a 10% 

disability rating is warranted when the following limitations are found: (1) "Forward flexion of the 

thoracolumbar spine greater than 60 degrees but not greater than 85 degrees"; (2) "combined range 

of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees"; 

 

17 53 U.S. 115 (1994). 

18 See Appellant's Motion for Reconsideration of the Court's June 13, 2019, Single-Judge Decision, or in the 

Alternative, a Panel Decision (Appellant's Motion for Reconsideration) at 3. 

19 38 C.F.R. § 4.71a, DC 5237 (2019). 
5 

(3) "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."20 A 20% 

rating is warranted when the following limitations are found: (1) "Forward flexion of the 

thoracolumbar spine greater than 30 degrees but not greater than 60 degrees"; or (2) the combined 

range of motion of the thoracolumbar spine not greater than 120 degrees"; (3) "muscle spasm or 

guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, 

reversed lordosis, or abnormal kyphosis."21

 The assignment of a disability rating is a factual finding that the Court reviews for clear 

error.22 "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite and firm conviction that a mistake 

has been committed.'"23 The Court may not substitute its judgment for that of the Board on issues 

of material fact merely because the Court would have decided those issues differently in the first 

instance.24

 In contrast, the Court reviews the interpretation of regulations, including DCs, de novo.25

To determine the meaning of a DC, we look first to "the language of the regulation, the plain 

meaning of which is derived from its text and its structure."26 If the plain meaning of the regulation 

is clear from its language, then that meaning controls, and "that is 'the end of the matter.'"27 When 

we assess the meaning of a regulation, we should not read its words in isolation but rather in the 

context of the regulatory scheme and structure as a whole.28

 

20 Id.

21 Id. 

22 38 U.S.C. § 7261(a)(4); Johnston v. Brown, 10 Vet.App. 80, 84 (1997). 

23 Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 

(1948)). 

24 See id.

25 See Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006); see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 

2004). 

26 Petitti v. McDonald, 27 Vet.App. 415, 422 (2015); see Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993); 

Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017). 

27 Tropf, 20 Vet.App. at 320 (quoting Gardner, 513 U.S. at 120). 

28 King v. Shinseki, 26 Vet.App. 484, 488 (2014). 
6 

B. Court's Jurisdiction

 Appellant argues that the Court would exceed its jurisdiction if we determined that DC 

5237 allowed thoracic and lumbar spine disabilities to be rated separately. It is true that Congress 

has precluded this Court from "re-view[ing] the schedule of ratings for disabilities adopted under 

section 1155 . . . or any action of the Secretary in adopting or revising that schedule."29 But it is 

equally true that we unquestionably have jurisdiction over cases involving "an interpretation of the 

language in the regulations" related to the schedule.30

 Here, 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 a 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.31 Indeed, 

if appellant were correct about our jurisdiction, numerous decisions would be erased from the 

books.32 That alone speaks volumes about the lack of merit in appellant's argument, especially 

considering that the Federal Circuit has confirmed our jurisdiction to interpret the rating schedule 

in just such a manner.33

 We also note an oddity in appellant's jurisdictional argument. He contends that the Court 

is not allowed to analyze the meaning of the DC but can somehow review the Board's application 

of the regulation.34 However, it is unclear how the Court can determine whether the Board clearly 

erred in applying the DC without first determining what the DC means. Additionally, appellant 

 

29 38 U.S.C. § 7252(b). 

30 Smith v. Nicholson, 451 F.3d 1344, 1346-47 (Fed. Cir. 2006); see also Wingard v. McDonald, 779 F.3d 1354, 1357 

(Fed. Cir. 2015). 

31 Wingard, 779 F.3d at 1357; Jones v. Shinseki, 26 Vet.App. 56, 60-61 (2012). 

32 See, e.g., Tedesco v. Wilkie, 31 Vet.App. 360 (2019) (interpreting DC 5055 for knee prosthesis); English v. Wilkie, 

30 Vet.App. 347 (2018) (interpreting DC 5257 for knee instability); Burton v. Wilkie, 30 Vet.App. 286 (2018) 

(interpreting the language of DC 7806 for a skin disorder); McCaroll v. McDonald, 28 Vet.App. 267 (2016) (en banc) 

(interpreting DC 7101 for hypertension); Jones, 26 Vet.App. 56 (interpreting DC 7319 for irritable bowel syndrome); 

Otero-Castro v. Principi, 16 Vet.App. 375 (2002) (interpreting DCs 7005 and 7007 for arteriosclerotic heart disease 

and hypertensive heart disease); Drosky v. Brown, 10 Vet.App. 251 (1997) (interpreting DC 7000 for rheumatic heart 

disease). We could continue this listing, but the point should be clear that we have consistently been in the business 

of interpreting the rating schedule as we are called on to do in this appeal. 

33 See Smith, 451 F.3d at 1348-49 (accepting that the Court could consider what was the correct interpretation of DC 

6260). 

34 O.A. at 11:45-12:32. 
7 

argues that the Court should apply the "plain meaning" of the DC and is precluded from any other 

interpretation.35 He is essentially saying that the Court has jurisdiction if we rule in his favor but 

that we do not if we rule against him. This position is untenable. A "plain language" interpretation 

of a regulation is still an interpretation. Thus, the Court either has jurisdiction to interpret the DC's 

meaning, no matter the meaning we find, or we lack jurisdiction to make any interpretation. If we 

lack jurisdiction to interpret the DC, as appellant seems to argue, then we must dismiss his appeal 

leaving the unfavorable Board decision undisturbed. In any event, we hold that this appeal falls 

squarely into the well-recognized interpretation exception that allows us to review the language of 

a DC to determine its meaning, and we, therefore, have jurisdiction to consider this matter.36

C. The Meaning of "Thoracolumbar" 

 Appellant's argument boils down to 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. So, he reasons, the Board erred 

when it relied on the uncontested fact that he was denied service connection for a lumbar spine 

disability and that there is medical evidence demonstrating that the spinal symptoms he 

experiences are entirely due to his lumbar injury. As we explain, we reject appellant's argument. 

The regulation that introduces the entire rating schedule is entitled "essentials of evaluative 

rating." 37 It sets out an overarching starting point for our analysis: "This rating schedule is 

primarily a guide in the evaluation of disability resulting from all types of diseases and injuries 

encountered as a result of or incident to military service."38 Thus, it is clear that the rating schedule 

is meant to compensate only service-connected disabilities. This common sense principle is key to 

our consideration of appellant's argument about DC 5237. This is so because his argument, if 

accepted, 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. As we 

discuss, 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, 

 

35 See Appellant's Brief (Br.) at 10-12; see also Appellant's Motion for Reconsideration at 3. 

36 Wingard, 779 F.3d at 1357. 

37 38 C.F.R. § 4.1 (2019). 

38 Id. (emphasis added). 
8 

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.39 

We have previously held that "for rating purposes, § 4.71a combines the thoracic and 

lumbar spines and provides criteria for rating disabilities of the 'thoracolumbar spine.'" 40

Appellant's position that service connection for his thoracic spine alone allows for consideration 

of any impairment caused by his non-service-connected lumbar spine disability conflates the issues 

of service connection and disability rating. He asks the Court to skip over establishing service 

connection for his lumbar spine and direct VA to compensate him for symptoms caused by a 

condition for which he has been denied service connection.41 The "logically up-stream element of 

service-connectedness" is distinct from "the logically downstream element of compensation 

level."42 

Appellant argues that the upstream element of service connection was satisfied as to both 

segments of the spine when service connection was granted for the thoracic spine.43 He, however, 

ignores the fact that service connection was expressly denied for his lumbar spine disability and 

that he did not appeal that decision, making it final. Essentially, appellant is asking the Court to 

compensate him for symptoms for which service connection has not been established when he 

failed to challenge the establishment of service connection by abandoning an appeal of that issue. 

 Both parties place significant importance on the 2003 amendment to 38 C.F.R. § 4.71a and 

the General Rating Formula for Diseases and Injuries of the Spine. In the 2002 proposed changes 

that led to the amendment of the formula, VA proposed that "the general rating formula provide 

criteria for the cervical and thoracolumbar spinal segments only, excluding a separate set of criteria 

for the thoracic (or dorsal) segment of the spine."44 VA stated that "[b]ecause the thoracic and 

lumbar spine segments ordinarily move as a unit, it is clinically difficult to separate the range of 

 

39 See Mittleider v. West, 11 Vet.App. 181, 182 (1998).

40 Cullen v. Shinseki, 24 Vet.App. 74, 82 n.8 (2010) (emphasis added). 

41 See D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000) (holding that service connection of a disability and 

degree of disability are separate elements of disability benefits). 

42 Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 

43 O.A. at 14:35-14:53; 40:17-41:00. 

44 67 Fed. Reg. 56,509, 56,512 (Sept. 4, 2002). 
9 

movement of one from the other."45 Appellant argues that this regulatory change radically altered

the approach VA used to rate thoracic and lumbar spinal disabilities. He contends that the change 

shows that the Secretary intended for the thoracic and lumbar spine to constitute one disability for 

rating purposes, regardless of which is service connected.46 Conversely, the Secretary contends 

that the wording in the Federal Register acknowledges that in most instances, the thoracic and 

lumbar spine will be considered together but leaves open the possibility that they could be 

separated, as in this case.47

 We agree with the Secretary. In the Federal Register, VA acknowledged that the thoracic 

and lumbar spine move together and should generally be considered together for rating purposes 

because it is often "clinically difficult" to distinguish between the effects flowing from a thoracic 

spine disability versus one of the lumbar spine. But recognizing that something is "clinically 

difficult" does not mean it is impossible. 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."48

 The 2003 amendment is also consistent with this Court's decision in Mittleider.

49 In that 

case, the Court held that "when it is not possible to separate the effects of the [service-connected 

condition and the non-service-connected condition], VA regulations . . . clearly dictate that such 

signs and symptoms be attributed to the service-connected condition."50 The amendment to § 4.71a 

acknowledges that in most spinal cases, it would be difficult to separate what segment of the spine, 

the thoracic or lumbar, was the source of limitation of motion. Thus, in amending the DC, VA put 

Mittleider into effect by recognizing that it would often be "clinically difficult" to expect a medical 

professional to separate the limitations flowing from injuries to different portions of the spine. But 

there appeared to be no such clinical difficulties in appellant's case. Here, the May 2016 VA 

 

45 Id. (emphasis added). 

46 Appellant's Motion for Reconsideration at 7-8. 

47 O.A. at 26:45-28:00. 

48 38 C.F.R. § 4.1. 

49 11 Vet.App. at 182. 

50 Id.
10 

examiner was able to clearly separate the functional limitations associated with appellant's serviceconnected thoracic spine condition and his non-service-connected lumbar spine condition.51 And 

it bears repeating that appellant did not challenge the adequacy of this medical opinion either at 

the Board or before us. Thus, following the logic of Mittleider and the permissive language of the 

2003 amendment, the Board was under no obligation to consider the effects of appellant's thoracic 

and lumbar spine disabilities together, and it was not error for the Board to rely on medical 

evidence that separated the two disabilities. 

Appellant argues that to the extent there is ambiguity in the DC, it should be resolved in 

his favor. But we find no ambiguity in the DC when read in the regulatory context in which it 

appears: the general formula calls for the thoracic and lumbar spine to be rated together when both 

are service connected or when it is not possible to clinically distinguish between the effects of the 

two disabilities. Because the DC is not ambiguous, there is no reason to reach the pro-veteran 

canon.

 Finally, the Court notes that appellant's proposed interpretation of the DC would lead to 

absurd results, something we must avoid when interpreting a statute or regulation.52 To begin with, 

imagine a scenario in which a veteran is service connected for a thoracic spine condition but not a 

lumbar spine condition and all her functional limitations are attributed to the lumbar spine (and 

none are related to the thoracic spine). Appellant's interpretation of the DC would entitle this 

veteran to compensation for a condition that is not related to service. That makes no sense and 

would circumvent the meaning of § 4.1 and the regulatory framework governing VA benefits.53

This is precisely the scenario presented by the facts currently before the Court and the outcome 

appellant asks us to reach. It simply cannot be. In addition, appellant's view would require us to 

completely ignore the unappealed VA determination that his lumbar spine condition is not related 

to service and medical evidence establishing that his functional limitations are related to that nonservice-connected condition. We hesitate to adopt an interpretation of a regulation that would make 

us pretend such significant considerations do not exist. 

 

51 R. at 93. 

52 See Atencio v. O'Rourke, 30 Vet.App. 74, 83 (2018). 

53 See 38 C.F.R. § 4.1. 
11 

D. Summary 

 We hold that the General Rating Formula for Diseases and Injuries of the Spine and DC 

5237 are not ambiguous. When read in the regulatory context that requires a disability to be service 

connected before it can be compensated through the rating schedule, it is clear that the 

"thoracolumbar" spine is rated together when both parts are service connected or the impairment 

caused by the two segments cannot be separated. This is not the case here. In appellant's case, 

service connection was not established for appellant's lumbar spine disability, and the evidence of 

record attributed his functional impairment, including limitation of motion, to the lumbar spine 

disability and not his service-connected thoracic spine disability. Thus, appellant has not carried 

his burden to show that the Board clearly erred in relying on that medical evidence to deny a higher 

disability rating for appellant's service-connected thoracic spine disability.54

IV. CONCLUSION

 After consideration of the parties' briefs, oral arguments, the record on appeal, and the 

governing law, the Court AFFIRMS the November 1, 2017, Board decision. 

 

54 See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).