Citation Nr: 0944103 Decision Date: 11/19/09 Archive Date: 11/25/09 DOCKET NO. 07-08 973 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a left foot disability. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to asbestos exposure. 4. Entitlement to an initial rating in excess of 10 percent for lumbar strain with arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from September 24, 1947 to September 27, 1949, November 1950 to November 1953, September 1954 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2006 rating decision of the RO in Muskogee, Oklahoma, which granted service connection for a lumbar strain with arthritis, assigning a 10 percent initial rating, denied service connection for a right foot disability, a left foot disability and COPD, and denied increased ratings for a scar of the left forearm, a scar of the left hand and scars of the right hand (major) Group IX. The Veteran initiated appeals with respect to all the claims, and a statement of the case (SOC) was issued in February 2007. The Veteran then responded with a timely substantive appeal in which he indicated that he was only appealing issues 3 (service connection for right foot disability), 4 (service connection for left foot disability), 5 (service connection for COPD), and 6 (initial rating for lumbar strain). As such, the issues of service connection for a right foot disability, a left foot disability and COPD, and initial rating for lumbar strain with arthritis are the only issues presently on appeal before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is no competent medical evidence establishing that the Veteran currently has a right foot disability. 2. There is no competent medical evidence establishing that the Veteran currently has a left foot disability. 3. The preponderance of the evidence is against a finding that the Veteran's COPD had its onset in service or is otherwise related to his active military service. 4. The Veteran's service-connected lumbar strain with arthritis is manifested by arthritis, pain, tenderness, and fatigue. CONCLUSION OF LAW 1. A right foot disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. A left foot disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 3. The Veteran's COPD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 4. The criteria for an initial rating in excess of 10 percent for lumbar strain with arthritis are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120- 21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. Prior to and following the initial adjudication of the Veteran's claims, letters dated in April 2006 and March 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letters advised the Veteran of the information necessary to substantiate the claims, to include for a disability based on exposure to asbestos, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claims, and advised that it was ultimately his responsibility to support the claims with appropriate evidence. These letters, along with a May 2008 letter, also provided the Veteran with notice concerning the assignment of disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). As for the duty to assist, the result of RO development indicates that some of the Veteran's service records from his first period of service were likely destroyed, presumed to have been lost in a 1973 fire at the National Personnel Records Center (NPRC) facility located in St. Louis, Missouri. VA has a heightened duty to assist in these cases. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Board concludes that the heightened duty to assist has been met in this case. The claims file contains all available evidence pertinent to the claim, including service personnel records, a September 1947 enlistment examination report, and service treatment records for his second and third periods of service. Private medical records identified by the Veteran have been obtained, to the extent possible. VA medical records have also been associated with the file. The Veteran indicated that some of his medical records were at the VA Medical Center (VAMC) in Muskogee. However, an RO search of automated records was negative for treatment records at VAMC Muskogee or Oklahoma City, and the Veteran was notified accordingly in the August 2006 rating decision and February 2007 SOC. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. Therefore, the Board finds that the claims file contains all available evidence pertinent to the claim, as well as sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist the Veteran in obtaining all outstanding records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes that an examination is not needed with respect to the right and left foot disability claims because the only evidence indicating the Veteran currently has the claimed disabilities is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. Among the numerous private treatment records from University Medical Group on file, there is no evidence of treatment for a bilateral foot disability, and the Veteran has at no time indicated having received such treatment. As there is no medical evidence of a current disability, the Board concludes that an examination is not necessary to the resolution of these claims. Concerning the COPD claim, the Board concludes an examination is not needed because there is no indication that the current disability may be related to an in-service event. The Veteran has not provided any evidence indicating that his COPD had its onset in service, nor has he provided evidence of a medical nexus between his current COPD and service to include his claimed asbestos exposure. As the record is not indicative of an association between the Veteran's service and his current disability, a VA examination is not warranted. See 38 C.F.R. § 3.159(c)(4); see also McLendon, supra. The duty to assist by conducting a thorough and contemporaneous examination of the veteran also extends to claims for higher initial ratings. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The RO provided the Veteran with an appropriate VA examination in July 2006 to evaluate the current nature of his lumbar strain. The Veteran stated at the examination that he was not receiving treatment for his back condition. He has not indicated that his disability has since increased in severity or that he has started seeking treatment. Thus, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service- connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The 2006 VA examination report is thorough and supported by the objective findings. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). a. Bilateral foot disability The Veteran contends that he has a bilateral foot disability as a result of service. For the reasons that follow, the Board concludes that service connection is not warranted. The Board has reviewed that the evidence of record and finds that it fails to demonstrate the existence of current disabilities right or left foot. As explained above, the Veteran has indicated that medical reports could be requested from the VAMC in Muskogee. However, a search for records at the Muskogee and Oklahoma City VAMCs returned a negative response. The Veteran has not submitted any evidence or identified any other records showing that he currently has bilateral foot disabilities. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). Without medical evidence of current disabilities of the bilateral feet, the Veteran's claims fail to meet the requirements of service connection, and the Board need not undertake an analysis as to whether there is evidence of an in-service injury or disease. In determining whether service connection is warranted, VA must determine whether the preponderance of the evidence supports or is against the claim. In this case, the preponderance of the evidence is against the Veteran's claims of service connection for bilateral foot disabilities, and the claims must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). b. COPD The Veteran contends that he has COPD as a result of in- service asbestos exposure. For the reasons set forth below, the Board concludes that service connection is not warranted. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. As an initial matter, the Board notes that medical evidence establishes that the Veteran has a current disability. Private treatment records from Universal Medical Group demonstrate extensive ongoing treatment for COPD and emphysema. Accordingly, the Board finds that the Veteran has presented medical evidence of a current disability, thereby satisfying the first element of service connection. The Board has reviewed the Veteran's service treatment records and finds that while they reflect medical treatment for a number of other conditions, they are completely silent regarding complaints, diagnosis or treatment of COPD or other respiratory problems. Notwithstanding the foregoing, the Veteran argues that his current disability was caused by asbestos exposure in service. Specifically, he contends that he was exposed to asbestos while serving aboard the USS Arnold J. Isbell DD 869 from September 1964 to July 1965 and the USS Owen DD 536 at Vallejo, CA from November 1955 to February 1956. A review of the Veteran's service personnel records confirms that he did serve aboard the USS Arnold J. Isbell DD 869 and the USS Owen DD 536. Even assuming for the moment, without conceding, that the Veteran was exposed to asbestos in service, the Board finds that there is no competent evidence of record linking the Veteran's COPD to such claimed exposure. The Veteran is shown to have received extensive treatment for COPD and emphysema over the years, however none of the treatment records mention anything about service to include asbestos exposure. Rather, the records seem to attribute the Veteran's current lung problems to his history of being a chronic smoker at a pack a day for 50 years. The Veteran has not claimed that he suffers from a lung disorder related to in-service tobacco use, and additionally, service connection for a disability based on an addiction to nicotine is prohibited for claims filed after June 9, 1998, as is the case here. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2009). As noted above, the Veteran's service treatment records do not reflect any complaints of respiratory problems in service, and there is no evidence suggesting that his current disability is related to asbestos exposure. The Board is mindful of the Veteran's statements regarding the etiology of his COPD. The Veteran can attest to factual matters of which he has first-hand knowledge; for example, he is competent to report that served aboard the USS Arnold J. Isbell DD 869 and the USS Owen DD 536. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding the etiology of his disability are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). Therefore, he cannot provide a competent opinion regarding the cause of his current disability. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for COPD, to include as secondary to asbestos exposure. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Initial Rating The Veteran also seeks a higher initial rating for his service-connected lumbar strain with arthritis, currently evaluated as 10 percent disabling. For the reasons set forth below, the Board finds that a higher rating is not warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board reviews the veteran's entire history when making a disability determination. See 38 C.F.R. § 4.1. When the veteran has timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). See 38 C.F.R. § 4.71a. The criteria for the rating of spinal diseases and injuries provide that intervertebral disc syndrome is evaluated either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine assigns a 10 percent rating is warranted for 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. An evaluation of 20 percent is provided for 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 is 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The notes to the revised rating criteria for both cervical spine and low back disabilities state that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235-5243 Note (1). 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. Id. at Note (2); see also Plate V, 38 C.F.R. § 4.71a. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. 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. Id. 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. Id. Each range of motion measurement is rounded to the nearest five degrees. Id. at Note (4). 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 on 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. Id. at Note (5). The Veteran is currently assigned an evaluation of 10 percent the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Code 5237. The Veteran was afforded a comprehensive VA examination in July 2006. The Veteran reported having lumbar spine pain, but denied any stiffness or weakness. The pain was described as constant, localized, aching and sharp in nature, and at the pain level of 8 on a scale of 1 to 10. The Veteran reported being able to function when in pain without medication. He stated that he was not receiving treatment for his condition and that the condition did not cause incapacitation. On physical examination, the Veteran's posture and gait were within normal limits, and he did not require an assistive device for ambulation. Examination of the thoracolumbar spine revealed no evidence of radiating pain on movement. Muscle spasm was absent. Tenderness in the lower back was noted. Straight leg raising test was negative on the right and positive on the left. There was no ankylosis of the lumbar spine. Range of motion testing revealed normal range of motion, with pain at 90 degrees flexion, 30 degrees extension and 30 degrees lateral flexion. After repetitive use, joint function of the spine was additionally limited by pain and fatigue, but not by weakness, lack or endurance or incoordination. The additional limitation was zero degrees. Inspection of the spine revealed normal head position with symmetry in appearance and symmetry of spinal motion with normal curvatures of the spine. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. X-rays demonstrated a large anterior osteophyte. The examiner diagnosed the Veteran with lumbar strain and large anterior osteophyte. In a subsequent addendum, the examiner explained that the anterior osteophyte represented arthritis of the lumbar spine. Based on the medical evidence of record, the Board concludes that the criteria for a rating in excess of 10 percent under the General Rating Formula for Disease and Injuries of the Spine are not met. The Veteran does not have forward flexion of the thoracolumbar spine at 60 degrees or less or combined range of motion of the thoracolumbar spine at 120 degrees or less, as is required for a 20 percent evaluation. See 38 C.F.R. § 4.71a. Likewise, he does not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Rather, he was shown to have normal range of motion, with pain, at the July 2006 examination. Additionally, it is noted that there is no evidence of favorable ankylosis of the entire thoracolumbar spine, as is required for a 40 percent evaluation; unfavorable ankylosis of the entire thoracolumbar spine, as is required for a 50 percent evaluation; or unfavorable ankylosis of the entire spine, as is required for a 100 percent evaluation. Accordingly, unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating under Diagnostic Codes 5235 to 5243 is not warranted. The Board has considered whether a separate or increased disability rating could be assigned under Diagnostic Code 5003 for degenerative arthritis. In certain circumstances, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14; VAOPGCPREC 9-98 (August 14, 1998) (explaining that removal of semilunar cartilage may result in complications producing loss of motion). Under Diagnostic Code 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A compensable evaluation under Diagnostic Codes 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by X-ray findings and no actual limitation of motion of the affected joint is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In this instance, the Veteran is already assigned a 10 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, which considers limitation of motion. A second rating under Diagnostic Code 5003 would compensate the Veteran twice for the same symptoms, violating the anti-pyramiding rule. Therefore, a separate rating for degenerative arthritis is not warranted. The current Diagnostic Code 5237 is for application 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. This implies that the factors for consideration under the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), are now contemplated in the rating assigned under the general rating formula. Even if DeLuca factors are not contemplated in the current evaluation criteria, there is no credible objective evidence to demonstrate that pain on use or during flare-ups results in additional functional limitation to the extent that under these codes there would be forward flexion of the thoracolumbar spine 60 degrees or less, or combined range of motion of the thoracolumbar spine 120 degrees or less, for a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered whether higher or separate ratings may be available under the diagnostic codes for intervertebral disc syndrome or neurological manifestations. However, it was specifically noted at the July 2006 examination that there were not signs of intervertebral disc syndrome. The Board also finds that there is no evidence of any neurologic manifestations so as to warrant a separate evaluation under a neurologic diagnostic code. See 38 C.F.R. § 4.71a Note (1). The Board acknowledges the Veteran's contention that he deserves a higher rating for his lumbar strain with arthritis. The Veteran can attest to factual matters of which he has first-hand knowledge, e.g., that he experiences pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding the severity of his disability are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Therefore, he cannot provide a competent opinion regarding the severity of his service-connected disability. Furthermore, the Board has considered the rule for staged ratings. Fenderson, supra; Hart, supra. However, as the evidence does not show that the criteria for a rating in excess of 10 percent have been met at any time during the period on appeal, the Board concludes that staged ratings are inapplicable. Finally, the Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Veteran's disability has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities, as discussed above; has not necessitated frequent periods of hospitalization; and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In light of the foregoing, the Board concludes that a higher initial rating for lumbar strain with arthritis is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for COPD, to include as secondary to asbestos exposure, is denied. Entitlement to an initial rating in excess of 10 percent for lumbar strain with arthritis is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs