Thoracic and Lumbar Spine

[gs106]

Are thoracic and lumbar spine disabilities always rated as thoracolumbar or can they be rated separately? How can I find out which DC was used when I was rated for arthritis of the thoracic spine?

[Vync]

3 hours ago, gs106 said:

Thanks for all the replies.  I just found a CAVC  decision that is bad news for me. The thoracic and lumbar spine are considered the same for rating purposes but not for disability purposes.  This is an excerpt from that decision

:

ANALYSIS

 Mr. Dietrich argues that the Board erred in treating his DISH as a disability separate from his thoracic scoliosis. He contends that under 38 C.F.R. § 4.71a (2014), the rating schedule for diseases of the spine, the Board is required to treat thoracic and lumbar disorders as one disability. For support, Mr. Dietrich cites a proposed VA rule change noting that because "the thoracic and lumbar segments ordinarily move as a unit, it is clinically difficult to separate the range of movement of one from that of the other." Schedule for Rating Disabilities; The Spine, 67 Fed. Reg. 56,509-12 (proposed Sept. 4, 2002). He further argues that the Board did not support its decision with an adequate statement of reasons or bases. The Board's rating determinations are findings of fact that the Court reviews under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). A finding is clearly erroneous when, after reviewing all the evidence, the Court "'is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52, 54 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Further, the Board's decision must include a written statement of the reasons or bases for its findings and conclusions of fact and law that adequately enables an appellant to understand the basis for the Board's decision and facilitates review by this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Mr. Dietrich's argument conflates the issue of service connection with the issue of rating a service-connected disability. As this Court has previously explained, "for rating purposes, § 4.71a combines the thoracic and lumbar spines and provides criteria for rating disabilities of the 'thoracolumbar spine.'" Cullen v. Shinseki, 24 Vet.App. 74, 82 n.8 (2010) (emphasis added). Accordingly, the rating criteria and proposed rule change cited by Mr. Dietrich would be relevant where a Board decision treated thoracic and lumbar sections of the spine separately for rating 2 purposes. Here, however, the issue involves two separate conditions–one that is service-connected, and one that is not. This situation raises the issue of service connection, and not the rating of a service-connected disability. See D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000) ("A claim for veteran's disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability, and (5) effective date of the disability."); Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (explaining that "the logically up-stream element of service-connectedness" is separate and distinct from "the logically down-stream element of compensation level"). Because VA is not required to treat all disabilities of the spine as a singular disorder for purposes of service connection or consider distinguishable symptoms of a non-service-connected disability in rating a service-connected disorder, the Court rejects Mr. Dietrich's argument that the Board erred in failing to consider his symptoms of DISH. Notably, the Board adequately explained that symptoms attributable to DISH did not support an increased rating for thoracic scoliosis because DISH is "not related to service," and Mr. Dietrich does not argue that the Board erred in denying service connection for DISH. R. at 15.

 

For decades, the VA has relied on the "thoracic + lumbar = one segment" because they likely claim they are "not able to rate the two segments independently". This case study below was published in 2013 found it is indeed possible to reliably test smaller interconnected vertebrae ranges:

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3598670/

Quote

Conclusions
The distance of three thoracic and two lumbar spinal processes can be reliably and accurately measured by independent testers, using a flexible ruler. Percentage positions between C7 and PSIS level correspond to spinal processes for subjects without visible deformities in the sagittal and frontal plane.

For ages the VA has based limited ROM measurements on a goinometer, but I can personally tell you that only one of my ROM-based C&P examiners ever used one.

But in this study, they used flexible rulers:

Quote

Flexible rulers have been used as a tool in clinical measurements, to determine body postures like kyphosis and pelvic alignment. Their validity and reliability has been controversially reported [13]. In a recent study by Dunleavy et al. a flexible ruler was used to measure spinal length parameters, which were subsequently traced onto paper [14]. In measurements of the length and curvature of the spine, these authors found moderate to high intra-and moderate inter-tester reliability (SE measurement: 0.58 - 2 cm).

 

This would likely never get implemented by the VA because:
1. It makes too much sense
2. They would have to change policy which could favor the veteran
3. Separating the segments would create an additional rate-able disability

The VA just "cannot" have that..

 

Keep in mind that is only takes one bad disc or vertebrae to take you out of commission...

 

 

 

In that case, the CAVC bought into