Citation Nr: 22012134 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 11-05 390 DATE: March 2, 2022 ORDER A higher initial rating of 20 percent, but no higher, for the Veteran's service-connected thoracic spine disability is granted. FINDING OF FACT The Veteran's thoracic spine disability manifests as thoracolumbar flexion limited to 45 degrees but not less, and there is no evidence of ankylosis or incapacitating episodes of at least 4 weeks during a 12-month period. CONCLUSION OF LAW The criteria for a higher initial rating of 20 percent, but no higher, for the Veteran's service-connected thoracic spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision. The Veteran testified at a Board hearing in November 2013. In November 2017, the Board granted an initial rating of 10 percent but no higher for a thoracic spine disability, effective July 7, 2009. The Veteran appealed the Board's denial of a rating higher than 10 percent to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court affirmed the Board's decision. However, in June 20201, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court's June 2019 decision. The Federal Circuit held that VA regulations require it to rate the thoracolumbar spine as a unit when applying the General Rating Formula. Langdon v. McDonough, 1 F.4th 1008, 1013 (Fed. Cir. 2021). The Federal Circuit further noted that the Veteran has a service-connected thoracic injury with reduced thoracolumbar flexion (55 degrees) that entitles him to a 20 percent disability rating, a fact that VA had not disputed. Id. In view of the Federal Circuit's decision, in August 2021, the Court set aside the November 2017 Board decision and remanded the matter back to the Board with instructions to grant a 20 percent disability rating for the Veteran's thoracolumbar spine disability. *** As determined by the Federal Circuit, the fact that the Veteran's service-connected thoracic injury manifests as thoracolumbar flexion limited to 55 degrees is not at issue. The Veteran is therefore entitled to a rating of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 3.71a. For the Veteran to be entitled a higher rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must show forward flexion of the thoracolumbar spine 30 degrees or less, or ankylosis of the entire thoracolumbar spine. Alternatively, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the evidence must show incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. Id. In this case, however, there is no argument or indication that the Veteran's service-connected spine disability has manifested as symptoms that approximate the criteria listed above. Rather, VA examinations show flexion limited to 55 degrees but not less. See May 2016 VA examination. Meanwhile, private treatment records show flexion limited to 45 degrees but not less. See November 2013 private treatment note, in 06/13/2013, Medical Treatment Record - Non-Government Facility, at 6. Most recently, a January 2021 VA examination shows thoracolumbar flexion limited to 60 degrees with repeated use over time. Similarly, VA examinations are negative (and treatment records are silent) for ankylosis or incapacitating episodes. Therefore, in the absence of evidence showing thoracolumbar flexion to 30 degrees or less, ankylosis, or incapacitating episodes of at least 4 weeks during the past 12 months, the Board finds that a rating higher than 20 percent for the service-connected spine disability is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.