Citation Nr: 1803431 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 05-31 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial disability rating in excess of 10 percent prior to January 5, 2008, and in excess of 20 percent prior to July 28, 2016, and in excess of 40 percent thereafter for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Faverio, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for residuals of a T11 compression fracture with moderate post-traumatic lumbar spondylosis and assigned an initial 10 percent disability rating, effective November 18, 2003, and a 20 percent rating from January 5, 2008. The Veteran timely appealed the initial ratings assigned. This issue was previously before the Board in January 2010. At the time, the issues on appeal also included service connection for a nervous disorder, to include anxiety, depression, and post-traumatic stress disorder (PTSD). The issue of entitlement to service connection for a nervous disorder and the issue currently before the Board were both remanded for further development. While the matter was in remand status, in a September 2016 rating decision, the RO granted service connection for an acquired psychiatric disorder to include major depressive disorder and unspecified anxiety disorder and assigned an initial 70 percent rating, effective November 18, 2003. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for a nervous disorder. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial rating or effective date assigned. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, those issues are not before the Board. Also in the September 2016 rating decision, the RO increased the disability rating for the Veteran's back disability to 40 percent, effective date July 28, 2016. Although a higher rating was granted, as the maximum schedular rating has not been assigned from the effective date of the award of service connection, the issue remains before the Board. Finally, in the September 2016 rating decision, the RO granted service connection for radiculopathy of the right and left lower extremity involving the sciatic nerve and assigned separate 20 percent ratings for each extremity, effective July 28, 2016. The RO also granted service connection for radiculopathy of the right and left lower extremities involving the femoral nerve and assigned separate 20 percent ratings for each extremity, effective July 28, 2016. The record contains no indication that the Veteran submitted a notice of disagreement with the initial rating or effective dates assigned. Thus, although the RO included the issues of entitlement to ratings in excess of 20 percent for radiculopathy of the lower extremities on the September 2016 Supplemental Statement of the Case, the Board is without jurisdiction to address these issues. 38 C.F.R. §§ 20.101, 20.200 (2017). FINDINGS OF FACT 1. Prior to January 5, 2008, the Veteran's residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis was manifested by X-ray findings of arthritis and pain, without evidence of forward flexion limited to 60 degrees or less, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes. 2. Between January 5, 2008 and July 28, 2016, the Veteran's residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis were manifested by limitation of forward flexion of the thoracolumbar spine to greater than 30 degrees but less than 60 degrees, with no evidence of incapacitating episodes. 3. Since July 28, 2016, the Veteran's residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis has manifested by limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, with no evidence of incapacitating episodes. 4. Throughout the appeal period, the Veteran has not had ankylosis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis for the period prior to January 5, 2008, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (2017); Diagnostic Code 5242. 2. The criteria for a rating in excess of 20 percent for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis for the period between January 5, 2008 and July 28, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (2017); Diagnostic Code 5242. 3. The criteria for a rating in excess of 40 percent for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis for the period following July 28, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (2017); Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Background The Veteran's service treatment records show that, in July 1981, the Veteran was involved in a motor vehicle accident while on active duty. Specifically, the accident report notes that a front tire on the Veteran's vehicle blew out, causing him to leave the road and land in a ditch. In November 1981, the Veteran suffered another back injury while in his civilian job. In November 2003, the Veteran filed a claim for service connection for a lumbar disability. The RO granted service connection for the lumbar spine disability and assigned staged ratings of 10 percent, effective November 18, 2003 and 20 percent, effective January 5, 2008. In August 2008, the Veteran filed a Notice of Disagreement (NOD) with the initial ratings assigned by the RO. A thorough review of the Veteran's post-service treatment records shows that in July 2003, X-ray studies showed that the Veteran had mild degenerative spurring of the lower thoracic and upper lumbar spine, but that the lumbar spine was otherwise normal. In December 2006, the Veteran had a hearing with a Veterans Law Judge who is no longer with the Board. In his hearing, the Veteran stated that his back condition was due to his time in service and that he has had persistent back pain since his injury in service. At the time of the hearing, he stated he used a cane constantly for about 3 months and wears a back brace daily. He testified that he took morphine, hydrocodone, and another medication for pain. He felt that his back condition has only worsened since service. On January 5, 2008, the Veteran underwent a VA examination. The examiner reviewed the Veteran's claims file and conducted an in-person examination. The Veteran reported having pain in the lumbar spine, rated at a 10 on a scale of 1 to 10 without medications. At the time of examination, the Veteran did not wear a brace, had not been ordered bed rest, and did not report flare-ups or exacerbations in the 12 months prior. Range of motion testing of the lumbar spine was conducted. Forward flexion was 0 to 60 degrees; extension was 0 to 20 degrees; left lateral rotation was 0 to 20 degrees; right lateral rotation was 0 to 20 degrees; left lateral bending was 0 to 20 degrees; and right lateral bending was 0 to 20 degrees. The examiner noted that the active range of motion and passive range of motion readings were the same, that there was no change with repetition, and that there is pain throughout the full arc of motion. The Veteran's lumbar spine was tender to palpation. The examiner noted there was no crepitus or instability, though instability test results were not included in the examination. Laboratory data was reviewed and the examiner noted that x-rays from December 2007 of the lumbar spine showed no fracture, dislocation, or bony destructive lesion that is acute. The Veteran had multiple degenerative changes in the back that is most pronounced at L1-L2, T12 and L1. There also appeared to be an old anterior compression at T11. The examiner noted a change in lordosis to a sudden change in kyphosis at T11 that is mild. The examiner diagnosed the Veteran with residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis. In May 2009, the Veteran again had a spine examination. The examiner noted that the Veteran was non-tender to palpation over his paraspinal musculature. Range of motion testing revealed that the Veteran's forward flexion was 0 to 40 degrees, with pain; extension was 0 to 10 degrees, with pain; left lateral rotation was 0 to 10 degrees, with pain; right lateral rotation was 0 to 10 degrees, with pain; left lateral bending was 0 to 15 degrees, with pain; and right lateral bending was 0 to 15 degrees, with pain. The examiner noted that after repetition, neither his pain nor his range of motion was changed. The examiner also noted that an MRI of the lumbar spine was completed in January 2009 and the radiologist read a minimal old compression fracture of L1 with mild loss of height anteriorly. There were no other bone or disc abnormalities noted. In July 2010, the Veteran had a DRO hearing at the Jackson, Mississippi, RO. The Veteran and his wife testified at the hearing. The Veteran testified that his condition has worsened since service and has restricted his ability to function as the pain has increased, he experiences about 5 to 6 falls per month, and he utilizes a cane for mobility constantly. He has not been given any weight restrictions, but he is unable to lift anything. He has difficulty bending over and his wife puts his socks and shoes on for him. In April 2011, an MRI of the lumbar spine without contrast was completed and the impression showed mild degenerative changes possibly slightly worse than on the previous study from January 2009, but there was no evidence of stenosis. Private treatment records from December 2013 show that, on examination of the lumbar spine, the Veteran had no tenderness or spasms, and normal range of motion and alignment. The Veteran's muscular strength and tone was also examined, and the examiner noted good strength with no atrophy or fasciculation. A November 2013 operative report from a private treatment center showed that the Veteran had a lumbar spine MRI in September 2013 which showed mild left foraminal disc bulge at L4-5 abutting the exiting left L4 nerve root and multilevel facet degenerative joint disease (DJD). In May 2014, through email correspondence, the Veteran stated that he has been trying to get a 100 percent rating for his lumbar spine condition since 2005. On July 28, 2016, the Veteran was afforded another VA examination. The examiner conducted an in-person examination and reviewed the Veteran's electronic claims file. The diagnoses noted on examination were a lumbosacral strain, degenerative arthritis of the spine, a T11 compression fracture with moderate lumbar spondylosis with residuals, and radiculopathy. At the examination, the Veteran reported flare-ups of the thoracolumbar spine, described as a mid- to lower-back spasm with severe pain that prevents the Veteran from getting out of bed. The Veteran also reported having functional loss and/or functional impairment of the thoracolumbar spine, which he described as being "100 percent incapacitated" and suffering from severe muscle spasms, being bed ridden, and needing complete assistance. Range of motion testing was completed and the results were abnormal or outside of the normal range. Forward flexion was 0 to 30 degrees; extension was 0 to 5 degrees; right lateral flexion was 0 to 15 degrees; left lateral flexion was 0 to 15 degrees; right lateral rotation was 0 to 15 degrees; and left lateral rotation was 0 to 15 degrees. The examiner noted that the range of motion itself contributed to a functional loss because it limits the Veteran's ability to switch positions between sitting, standing, and lying and it is difficult or impossible for the Veteran to ambulate. The range of motion also does not allow the Veteran to climb stairs or ladders, bend, or carry. The examiner documented that pain was noted on exam on rest/non-movement. There was also objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine in the area of T10 down to the sacrum bilaterally. The severity was documented as "exquisite tenderness" at T11 and lumbar vertebrae. There was also pain with weight bearing. The Veteran was unable to perform repetitive-use testing with at least 3 repetitions because he was in too much pain at the time of exam. The examination was being conducted during a flare up and the examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited the Veteran's functional ability with flare ups. The Veteran had muscle spasm which resulted in abnormal gait or abnormal spine contour and was described by the examiner as spasm and tenderness from T11-T12 down bilaterally, related to the diagnoses of T11 fracture and the osteoarthritis present in the spine. The localized tenderness resulted in an abnormal gait or abnormal spine contour. There was no guarding. Additional factors contributing to the disability was instability of station and disturbance of locomotion. The examiner noted that the Veteran did not have ankylosis but did have intervertebral disc syndrome (IVDS). However, the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran uses a brace and a cane as assistive devices constantly. He reported using the cane to help with back, for ambulation assistance due to the back DJD, sciatica, and balance issues. The brace was also used for his back to help with the DJD, T11 fracture and pain. The examination report showed that imaging studies of the thoracolumbar spine had been performed and arthritis was documented. The Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner noted that the impact of the Veteran's thoracolumbar spine condition was significant difficulty with ambulation, resting in bed 90 percent of the time with severely limited range of motion, in particular during flares; he cannot bend, stoop, lift or climb stairs and ladders. The examiner noted that this is a progression of the original service connected diagnosis in that he has developed the compression at L2 documented by MRI as a residual from the original injury versus a new separate condition. The examiner also stated that the Veteran's pain, function and balance have continued to deteriorate. The Veteran has had falls; his flexibility and range of motion is severely limited especially during flares. He spends 90 percent of his time in bed. His Home Health Nurse has noted in an official statement dated October 2013 that the Veteran is unable to do all of his activities of daily living and has on occasion lost control of his bowel and bladder. In August 2016, there was an addendum to the provider regarding the Veteran's bladder and bowel control loss. The medical provider noted that he was not diagnosing the Veteran with a neurogenic disorder or disability of the bladder secondary to service-connected T11 compression fracture lumbar disability. The examiner documented that the Veteran himself stated that he did not have a bladder or bowel disorder and his spouse, present at the examination, did not correct him. This examination is the most recent medical evidence in the record. III. Merits Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected loss. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where the question of functional loss due to pain upon motion is raised, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Disabilities of the spine are rated under the under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) found at 38 C.F.R. § 4.71a. Intervertebral disc syndrome can, alternately, be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes" also found at § 4.71a. Here, as described above, although the Veteran reports periods of incapacitation, the record shows that he has not had any incapacitating episodes resulting from his spine disability, as such episodes are defined by VA regulation as "a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician." See Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Thus, the Board finds that these criteria do not avail the Veteran of a higher rating at any point during the period on appeal. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of injury or disease. Under the General Rating Formula for Diseases and Injuries of the Spine, diseases and injuries to the thoracolumbar spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: Unfavorable ankylosis of the entire spine is evaluated at 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated at 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is evaluated at 40 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is evaluated at 20 percent disabling. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 is evaluated at 10 percent disabling. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (1) under the General Formula directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. In this case, as set forth above, the RO has awarded service connection for radiculopathy of the right and left lower extremities and assigned separate ratings for each extremity. Those matters are not currently before the Board. In addition, although there was a suggestion of bowel and bladder impairment at the most recent examination, the examiner subsequently clarified that the Veteran did not exhibit a neurogenic disorder or disability of the bladder secondary to service-connected T11 compression fracture lumbar disability. There is no other probative to the contrary. Thus, separate ratings are not warranted for bowel and bladder disabilities. A. An initial disability rating in excess of 10 percent for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis prior to January 5, 2008. The Veteran was assigned an initial 10 percent evaluation for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis via the March 2008 rating decision, with an effective date of November 18, 2003, the date the Veteran filed his claim for service connection. This evaluation contemplates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. In order to warrant a higher evaluation, there must be the functional equivalent forward flexion greater than 30 degrees or a combined range of motion not greater than 120 degrees. Based on a review of the record, the Board finds that the evidence does not demonstrate the criteria necessary for an evaluation in excess of 10 percent for the Veteran's residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis during the period prior to January 5, 2008. As stated above, in a July 2003 VA Medical Center record, findings from an abdomen view showed that the Veteran had mild degenerative spurring of the lower thoracic and upper lumbar spine, but that the lumbar spine was otherwise normal. The Board has considered the lay and medical evidence associated with this period and has not found the functional equivalent of limitation of flexion to 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis during the period prior to January 5, 2008. Thus, the criteria for a rating in excess of 10 percent during this period have not been met. B. A disability rating in excess of 20 percent for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis from January 5, 2008 to July 28, 2016. The March 2008 rating decision staged the ratings for the Veteran's disability and, in addition to assigning a 10 percent disability rating beginning November 18, 2003, assigned a 20 percent disability rating for the period beginning January 5, 2008. As discussed below, the Veteran's disability rating was increased to 40 percent with an effective date of July 28, 2016; therefore, this portion of the decision will discuss whether the Veteran is entitled to a disability rating in excess of 20 percent for the period between January 5, 2008 and July 28, 2016. As stated above, the Veteran was afforded a VA examination on January 5, 2008. During this examination, the Veteran's range of motion testing results showed that his forward flexion was to 60 degrees. There was no crepitus or instability. However, the examiner noted a change in lordosis to a sudden change in kyphosis at T11 described as mild. Based on this evidence, the RO assigned the 20 percent disability rating. This evaluation contemplates forward flexion greater than 30 degrees or a combined range of motion not greater than 120 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees or less due to such factors as limitation of motion, pain on motion, weakness, or excess fatigability. See DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Based on a review of the record, the Board finds that the evidence does not demonstrate the criteria necessary for an evaluation in excess of 20 percent for the Veteran's residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis between the period of January 5, 2008 and July 28, 2016. In May 2009, the Veteran had an examination for his spine. As detailed above, range of motion testing revealed that the Veteran's forward flexion was to 40 degrees, with pain. Even considering the effects of pain on use, the Veteran's forward flexion was not shown to be functionally limited to 30 degrees. The Board has considered the medical evidence and has not found the functional equivalent of limitation of flexion to 30 degrees or less or a diagnosis of ankylosis during the period between January 5, 2008 and July 28, 2016. Therefore, the Board finds that the 20 percent rating is appropriate and contemplates the Veteran's disability prior to the period of July 28, 2016, and an increase to a 40 percent disability rating or higher is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. C. A disability rating in excess of 40 percent for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis after July 28, 2016. As noted above, the Veteran may only receive a disability rating in excess the currently-assigned 40 percent by showing unfavorable ankylosis of the entire thoracolumbar spine. The Veteran has not reported any such symptom and clinical examinations have shown that ankylosis is not present. The VA medical examinations of record do not reflect ankylosis, and, in fact, the August 2016 examination specifically states that the Veteran does not have ankylosis. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5) (2017). During the August 2016 examination, thoroughly detailed above, the Veteran described having constant back pain and difficulty with movement, resulting in spending 90 percent of his time bed-ridden. It was shown that he had "exquisite tenderness" at T11 and lumbar vertebrae and constant pain, difficulty or impossibility to ambulate, and that pain, fatigue, weakness, lack of endurance, and incoordination contributed to functional loss. Again, however, the Veteran did not exhibit ankylosis, any of the indicia of ankylosis such as difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; or breathing limited to diaphragmatic respiration; nor did his symptoms more nearly approximate ankylosis. In considering the evidence of record, the Board finds that the already assigned 40 percent evaluation, and no higher, is appropriate, for the period after July 28, 2016, and there is no basis for awarding a higher evaluation for the Veteran's residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis. ORDER Entitlement to an initial disability rating in excess of 10 percent prior to January 5, 2008, and in excess of 20 percent prior to July 28, 2016, and in excess of 40 percent thereafter for residuals of T11 compression fracture with moderate post-traumatic lumbar spondylosis is denied. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs