Citation Nr: 1321441 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 08-15 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a lung disability claimed as chronic obstructive pulmonary disease (COPD) to include as due to asbestos exposure. 2. Entitlement to service connection for a cervical spine disability to include as secondary to a service connected lumbar spine disability. 3. Entitlement to a rating in excess of 20 percent disabling for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 1973 to September 1976. These matters come before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Huntington, West Virginia. These matters were previously before the Board in March 2011 and were remanded for further development. They have now returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran's plaque-like densities in the subpleural space of the upper and lower lobes of the lungs are asymptomatic radiologic findings; thus, they are not a disability for VA purposes. 2. The Veteran has a 35 year history of smoking tobacco. 3. The Veteran has a 25 year history of working in coal mines. 4. There has been no demonstration by competent medical evidence, or competent and credible lay evidence, that the Veteran's COPD or coal miner's pneumoconiosis is causally related to, or aggravated by active service or a service-connected disability. 5. The competent credible clinical evidence of record is against a finding that the Veteran has a lung disability causally related to, or aggravated by, active service. 6. The Veteran injured his cervical spine in a post-service coal mining incident in approximately 2000. 7. There has been no demonstration by competent medical evidence , or competent and credible lay evidence, that the Veteran has a cervical spine injury causally related to, or aggravated by, active service or a service-connected disability. 8. The competent credible clinical evidence of record is against a finding that the Veteran has a cervical spine disability causally related to, or aggravated by, active service, or a service-connected disability. 9. During the rating period on appeal, the Veteran's service-connected spine disability has been manifested by complaints of pain, fatigue, and stiffness; objectively, he has flexion to more than 30 degrees, with diagnostic findings which are negative for radiculopathy, and with no objective evidence of ankylosis, no incapacitating episodes, and no associated bowel or bladder problems. CONCLUSIONS OF LAW 1. A lung disability was not incurred in, or aggravated by, active service. See 38 U.S.C.A.§§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. A cervical spine disability was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred or aggravated, nor is it proximately due to, the result of, or aggravated by, service-connected disability. See 38 U.S.C.A.§§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310 (2012). 3. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5235 - 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in June 2005, and September 2008. VA has a duty to assist the Veteran in the development of the claim. The claims file includes service treatment records (STRs), VA and private medical records, Social Security Administration (SSA) records, and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. VA examinations with opinions were obtained in 2005 and 2011 with an addendum in 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations and opinions obtained in this case are adequate, as they are predicated on clinical examinations, and a reading of the pertinent medical records, to include the Veteran's history and diagnostic testing. The reports of the VA examinations provide findings relevant to adjudicate the issues and provide a rationale for the opinions proffered. The accredited representative has argued that some of the opinions are inadequate because, the representative contends, the examiner failed to provide sufficient rationale and to address whether the Veteran's plaque-like densities aggravate or cause his COPD. As is discussed in further detail below, the Board disagrees with the representative's contentions. First, the examiner noted that the Veteran's COPD was caused by his smoking and unrelated to his service; thus, the examiner has made it apparent that the Veteran's COPD was not due to his plaque-like densities. Second, the examiner stated that the plaque-like densities were radiologic findings that were asymptomatic; thus, it is again apparent that they did not aggravate the Veteran's COPD. The reports with addendum, when read as a whole, provide an adequate rationale for the opinions proffered, and sufficient evidence to adjudicate the claims. The spine examination also includes findings relevant to the criteria for rating the lumbar spine disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Service Connection in general Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis and organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service Connection on a secondary basis Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 38 C.F.R. § 3.310 was amended during the course of this appeal. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen, which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003) Service-connection for asbestos-related diseases The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating musculoskeletal disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2012), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2011). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rating the Spine The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2012). Under these relevant provisions, 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 rated at 10 percent. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis if the entire spine warrants a 100 percent rating. In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Lung Disability, claimed as COPD, to include as due to asbestos exposure The claims file includes clinical evidence that the Veteran has plaque-like densities in the subpleural space of the upper and lower lobes, chronic obstructive pulmonary disease (COPD), and coal miner's pneumoconiosis. The Veteran's DD 214 reflects that his military occupational specialty (MOS) was as a wheeled vehicle repairman. In cases where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Board acknowledges that as a mechanic, the Veteran may have repaired brakes and may have been exposed to asbestos in service. The Veteran's STRs are negative for findings of plaque-like densities, COPD, or pneumoconiosis. A July 1974 dental envelope reflects that the Veteran denied any asthma or lung disease. An April 1975 STR reflects that the Veteran reported problems breathing at night. He reported that he had some wheezing when lying down at night. He further reported that "had asthma prior to entering Army. On no meds. Has been coughing more for past [week and] having post-nasal drip. Smokes [one pack per day.]" The diagnosis was "probable asthma, possibly [secondary] to sinus drainage." A June 2, 1975 STR reflects that the Veteran had a history of asthma. A June 16, 1975 STR reflects that the Veteran complained of a history of asthma. He reported that he was still having wheezing at night. It was noted that he still had sinus congestion. The impression was questionable asthma. There were no further complaints of breathing or lung disabilities for the remainder of the Veteran's approximate 14 months of service. The Veteran's STRs include a September 1976 report of medical examination for separation purposes. It reflects that the Veteran's lungs were normal upon clinical examination. It also reflects that the Veteran reported "I am in good health." The report further reflects that a chest x-ray was performed, which revealed normal chest findings. Post service records reflect that in 1992, 1993, and 1994, more than 15 years after separation from service, the Veteran was diagnosed with pneumonitis and/or bronchitis. (See June 1992, December 1992, October 1993, March 1994, and October 1994 private records.) None of the records indicates that the Veteran's lung diseases were causally related to, or aggravated by, service. An October 1992 private record from Charleston Area Medical Center reflects that the Veteran had diagnoses of COPD and tobacco abuse. It was noted that the Veteran had a 20 pack year history of cigarette smoking, but that he reported that he would not return to smoking after his release from the hospital. It was further noted that the Veteran was encouraged not to return to cigarette smoking. The record is negative for any indication that the Veteran's COPD was causally related to, or aggravated by, service. A February 2001 private record from River Park Hospital reflects that the Veteran smokes three packs a day. A May 2001 private report from Dr. R.L.S. reflects that the Veteran has been diagnosed with coal workers pneumoconiosis. An April 2005 VA record reflects that the Veteran had COPD with tobacco use disorder. It was noted that he declined tobacco cessation referral. The record is negative for any indication that the Veteran's COPD was causally related to, or aggravated by, service. A May 2005 VA record reflects that the Veteran underwent a shoulder film for pain in his shoulder. The film showed opacity in the left upper lung field. A CT of the chest reflected an abnormal examination. A May 2005 VA record reflects that a CT scan of the thorax revealed diffuse adenopathy with some with rimlike calcification. It was noted that the Veteran's father had tuberculosis, but the Veteran did not know of any history for himself. It was further noted that Veteran had stopped smoking the day prior, and had worked in the mines for 30 years. The record is negative for any indication that the Veteran's COPD was causally related to, or aggravated by, service. The Board will first discuss the Veteran's plaque-like densities. An April 2011 VA examination report is of record. The examiner noted that the plaque-like densities are radiological changes that have no impact on any type of employment. It was further noted that there was no evidence of any chronic fibrosis of the lungs. In a May 2012 report, the examiner stated that the Veteran's plaque-like densities are asymptomatic radiological findings. Based on the evidence of record, the Board finds that the Veteran's plaque-like densities, which are asymptomatic radiology findings, are not a disability for VA purposes. Mere diagnostic findings, without any symptomatology, are not a disability. As a service connection claim requires, at a minimum, medical evidence of a current disability, the Veteran's claim for service connection is not warranted in this case. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997), McClain v. Nicholson, 21 Vet. App. 319 (2007). Next, the Board will discuss the Veteran's COPD. The April 2011 VA examination report reflects that the Veteran reported that he smoked from ages 13 through 48, for a 35 years history of smoking. It was noted that at the end of his smoking history, he was smoking 1.5 packs per day. The examiner opined that the Veteran's COPD was due to a strong history of excessive smoking. In a May 2012 VA opinion, the examiner stated that COPD is not related to asbestos exposure and is not caused by, or related to, service. In a May 2013 brief, the Veteran's accredited representative argued that the examiner's opinion lacked detail and adequate support for his conclusion. The Board disagrees; not only did the examiner opine that the Veteran's COPD was not due to service, but he provided an etiology for the Veteran's COPD. The examiner's report is clear that the cause of the Veteran's COPD is his smoking. Thus, no further rationale is necessary. The accredited representative also argued that the examination report is inadequate because the examiner failed to address whether the Veteran's plaque-like densities aggravate or caused his COPD. The Board disagrees with the representative's contentions. First, the examiner noted that the Veteran's COPD was caused by his smoking and unrelated to his service; thus, the examiner has made it apparent that the Veteran's COPD was not due to his plaque-like densities. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Thus, even if the Veteran were service connected for plaque-like densities, he would not have COPD secondary to such. The Board also notes that the Veteran may not be service connected for a disability attributable to his use of tobacco, even if such use was during service. The Veteran filed his claim for service connection in 2005. Pursuant to 38 C.F.R. § 3.300, service connection will not be considered for injury or disease attributable to a Veteran's use of tobacco during service for claims received by VA after June 9, 1998. Second, the examiner stated that the plaque-like densities were radiologic findings that were asymptomatic; thus, it is again apparent that they did not aggravate the Veteran's COPD. As they are merely radiologic findings which are asymptomatic they cannot, by their very nature, worsen another disability. Moreover, there is no competent clinical opinion of record which finds that there is any such aggravation or causal relationship. Again, even if the Veteran were service connected for plaque-like densities, he would not have COPD secondary to such. Not only is the clinical evidence of record against a finding that the Veteran has COPD due to asbestos exposure in service, but there is no competent credible evidence of record that asbestos exposure, which can cause restrictive lung disease, can be the cause of an obstructive lung disease. In sum, there has been no demonstration by competent medical, or competent and credible lay, evidence of record, that the Veteran's COPD is causally related to active service, to include asbestos exposure or any other incident or injury in service, or that it is secondary to a service connected disability. Finally, the Board will discuss the Veteran's coal-miners/coal workers pneumoconiosis. Coal worker's pneumoconiosis is a form of pneumoconiosis caused by deposition of large amounts of coal dust in the lungs, and typically characterized by centrilobular emphysema. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran's pneumoconiosis is causally related to active service, or a service-connected disability. There is no competent credible evidence of record that coal dust was deposited in the Veteran's lungs while he was in service. In addition, the record reflects that the Veteran worked in the coal mines for approximately 25 years after separation from service; thus, it is entirely reasonable and logical that the Veteran's exposure to coal dust was incurred after service. The May 2012 VA examination report reflects the opinion of the examiner that the Veteran's pneumoconiosis is secondary to working in the mines and is not service-related. In addition, there is no competent credible evidence of record that the Veteran's disability is aggravated by his plaque-like densities. As the plaque-like densities are merely radiologic findings which are asymptomatic they cannot, by their very nature, worsen another disability. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g. breathing difficulty). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has current breathing problems; however, he has not been shown to have the education, training, and experience necessary to provide a competent opinion as to etiology of his lung disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent in this specific case, two lung disabilities with a history of decades working in a coal mine, decades of smoking tobacco, and three years working as a mechanic with possible exposure to asbestos. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board has also considered whether there is a continuity of symptomatology since service which may warrant service connection, but finds that there is not. As noted above, the Veteran's September 1976 report of medical examination for separation purposes reflects that the Veteran's lungs were normal upon clinical examination, to include x-ray. It also reflects that the Veteran reported "I am in good health." The earliest clinical evidence of record of lung complaints is more than a decade after service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In sum, the evidence of record reflects that the Veteran has plaque-like densities which are as least as likely as not related to asbestos exposure to service; however, such densities are not a disability for VA purposes, and the Board cannot speculate as to whether they will constitute a future disability. Moreover, the Board may not grant service connection for a future disability. In addition, there has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has COPD or pneumoconiosis causally related to service or to a service-connected disability, or aggravated by service or a service-connected disability. To the contrary, the evidence is against any such finding. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Cervical Spine disability The Veteran has been diagnosed with degenerative changes and degenerative disc disease of the cervical spine. (See April 2011 VA radiology report.) Initially, the Board notes that the evidence does not reflect, and the Veteran does not contend, that he injured his cervical spine in service. Moreover, there is no competent credible evidence of record that the Veteran has a cervical spine disability causally related to, or aggravated by, active service. There is also no competent credible evidence of symptoms within one year of service. Thus, service connection on a direct basis is not warranted. The Veteran avers that he has a cervical spine disability as secondary to his service-connected degenerative disease of the lumbar spine. (See May 2005 PVA correspondence and June 2005 VA Form 21-4138.) Private medical records in April 2001 reflect that the Veteran reported that in May 2000, he was sitting in a bucket of a mine loader when a 6' x 3' rock, which was 6 " thick, fell approximately 10 feet and crushed him. He reported that he rock weighted approximately 600 to 700 pounds and hit him on the back of the head, causing injury and pain on his left side, left shoulder, neck, left flank area, and also a loss of consciousness. It was noted that since that time, he complained of pain in the left lumbar region, left hip, and left leg radiating pain and paresthesias. Private medical correspondence dated in May 2001 from Dr. S. reflects that the Veteran was injured in May 2000 when he was covered with rock as a result of a roof fall in the mines. The report also reflects that in 1999, the Veteran had also received a cervical spine injury due to a rock fall. An April 2005 VA clinical record reflects that the Veteran reported pain radiating from the neck to the left shoulder and down his elbow. The records reflect that he had cervical spine disease due to a "crush injury" in 2000. Additional records also reflect that the Veteran had a history of a crush injury in May 2000. A December 2005 VA examination report, with January 2006, opinion reflects that the Veteran was a coalminer and on May 19, 2000, he was crushed by a roof which fell on his shoulders. None of the records indicate that the Veteran's cervical spine injury was due to, or aggravated, by a service-connected disability. To the contrary, the records provide the etiology of the Veteran's current cervical spine disability as a post-service work injury. The Veteran underwent a VA examination in April 2011. The report reflects that the Veteran reported having been involved in a coal mining accident in 2000 when a rock fell on him. He reported that he injured his neck, low back, and fractured his left jaw. The examiner stated that the Veteran's cervical spine disability is "directly related to injury while working in mines. Please note that cervical condition is not caused by or aggravated by lower back condition." The examiner's opinion was based, in part, on the Veteran's history, a review of the claims file, and diagnostic testing. The Board also notes that there is no competent credible evidence of record that the Veteran's post-service cervical spine disability was aggravated beyond its natural progression by a service-connected disability. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g. cervical spine pain). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has current cervical spine pain or other cervical symptoms; however, he has not been shown to have the education, training, and experience necessary to provide a competent opinion as to etiology of the cervical spine disability in the present case. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a medical professional is more competent than a lay person in this specific case, whether cervical spine degenerative changes and degenerative disc disease was due to, or aggravated by, service, a service-connected disability, or a post-service coal mining injury. The Board also finds that the etiology of secondary disabilities, on a causal or aggravation basis, is outside the realm of knowledge of a lay person in light of the biomechanics and the relationship of musculoskeletal disabilities. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a cervical spine disability causally related to service or to a service-connected disability, or aggravated by service or a service-connected disability. To the contrary, the evidence is against any such finding. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Rating the Lumbar Spine The Veteran's lumbar spine disability is rated as 20 percent disabling effective from December 2003. In a statement received in May 2005, the Veteran asserted that an increased evaluation was warranted for his service-connected lumbar spine disability. The Veteran would be entitled to a 40 percent evaluation if the evidence reflected forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. He would be entitled to a 50 percent rating if he had unfavorable ankylosis of the entire thoracolumbar spine. He would be entitled to a 100 percent rating if he had unfavorable ankylosis of the entire spine. The evidence of record, as described below, is against a finding that the Veteran's lumbar spine degenerative disc disease warrants a rating in excess of 20 percent for any period on appeal. The Veteran underwent a VA examination in December 2005, with a report completed in January 2006. The Veteran reported, in pertinent part, that he never had urinary incontinence, frequency, or urgency, erectile dysfunction, fecal incontinence, leg or foot weakness, numbness, or paresthesias. He reported mild fatigue, mild decreased motion, no flare-ups, mild stiffness, no weakness, mild back spasm, and severe constant pain which radiated to the left hip and left big toe. Upon examination, it was noted that he limped using a cane. He had flexion to 60 degrees with pain at 60 degrees. EMG studies did not reveal any evidence of radiculopathy. A February 2010 private medical record (Center for Pain Relief) reflects that the Veteran reported pain which was a 4 out of 10. Upon clinical examination, he had moderate tenderness bilaterally below the L4. A June 2010 private medical record (Center for Pain Relief) reflects that the Veteran reported pain which was a 6 out of 10. It was noted that he had been started on Relafen on the last visit. Upon clinical examination, he had significant tenderness in the areas of the low back region mildly, upon compression below the L4. The midline was nontender. An August 2010 private medical record (Center for Pain Relief) reflects that the Veteran reported pain which was a 3 out of 10. It was noted that he had significant tenderness in the low back region, bilaterally, left side worse than right. It was also noted that he had limited range of motion and antalgic gait. An October 2010 private medical record (Center for Pain Relief) reflects that the Veteran reported pain which was a 7 out of 10. It was noted that he had significant tenderness in the left side of the low back, and the left sciatic region was also tender. He used a cane to ambulate and had a limp. A December 2010 private medical record (Center for Pain Relief) reflects that the Veteran reported pain which was a 5 out of 10. It was noted that he had significant tenderness in the low back region. It was also noted that the straight leg test was negative. He walked with a cane and had an antalgic gait. A February 2011 private medical record (Center for Pain Relief) reflects that the Veteran reported pain which was a 6 out of 10. It was noted that he had significant tenderness in the low back region. He walked with a cane and had an antalgic gait. The Veteran underwent another VA examination in April 2011. The Veteran reported, in pertinent part, that he never had urinary incontinence, frequency, or urgency, fecal incontinence, leg or foot weakness, or paresthesias. It was noted that the Veteran's erectile dysfunction was not related to his lower back problems. He denied fatigue, stiffness, weakness, and spasm. He reported decreased motion and pain. It was noted that the Veteran had a spinal cord stimulator implanted. The most recent one had been three to four years earlier and it "helps the leg pain." He reported moderate constant pain with radiating numbness into the left leg. The report reflects that upon clinical examination, the Veteran had flexion to 70 degrees. There was no objective finding of pain following repetitive motion. There were no additional limitations after three repetitions of range of motion. An April 2011 radiology report reflects that the Veteran had "mild degenerative changes." The April 2011 VA EMG report also reflects that motor function and strength were within normal limits. There was no evidence of loss of muscle bulk or muscle tone and no atrophy. A May 2011 private record from Dr. K. is also of record. It reflects that there was tenderness on palpation and that the motion was abnormal. Weakness was observed, as was an antalgic gait. His knee and ankle jerk reflexes were normal. His sensory examination was normal. Thus, the evidence is against a finding that the Veteran had forward flexion limited to 30 degrees or ankylosis of the spine. There is no competent credible evidence of record which reflects that the Veteran, even with his pain or other factors under DeLuca, had forward flexion limited to such a degree. The report of the 2005 examination reflects forward flexion was limited to 60 degrees with pain at 60 degrees. The 2011 VA examination report noted flexion to 70 degrees. The Board acknowledges that the examiner did not specifically note where the Veteran's pain began, but the Board finds it noteworthy that the diagnostic testing reflected only mild degenerative changes. In addition, there was no objective evidence of spasm, atrophy, guarding, tenderness, or weakness. The Board finds that if the Veteran had such severe pain that he was unable to move his back, it would be expected that there would be some atrophy; however, there is not. In addition, none of the clinical records note ankylosis or motion so limited by symptoms such as pain which would be synonymous to ankylosis or limited to 30 degrees. In addition, as noted above, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Under the current regulation for the spine, associated objective neurologic abnormalities are evaluated under an appropriate diagnostic code. Under various diagnostic codes under 38 C.F.R. § 4.124a, a Veteran may be entitled to a rating if the evidence reflects that he has incomplete or complete paralysis of a specific nerve. The Veteran filed his claim for an increased rating in May 2005. The Board acknowledges that records prior to May 2005 reflect that the Veteran had radiculopathy. (A 2001 private record reflects that the Veteran has classic left leg radiculopathy due to nerve root irritation, a 2002 private record notes that the Veteran had a spinal cord stimulator for his radicular pain, a March 2004 VA examination notes radiculopathy into the left leg, and an April 2005 VA note reflects that the Veteran wears a duragesic patch for low back pain with left lower extremity radiculopathy.) In addition, the Board acknowledges the records which reflect that the Veteran reported throbbing and burning sensations the left lower extremities(e.g. 2010 and 2011 private records.) However, the objective clinical evidence of record from May 2005 to present is against a finding of radiculopathy. The December 2005 report reflects that EMG studies did not reveal any evidence of radiculopathy. A December 2010 private medical record (Center for Pain Relief) reflects that the straight leg test was negative. Although the Veteran reported radiating numbness into the left leg at the April 2011 VA examination, the April 2011 VA EMG report reflects that motor function and strength while doing the voluntary muscle actions was within normal limits. There was no evidence of loss of muscle bulk or muscle tone and no atrophy. The report reflects that there is "no evidence of lumbar radiculopathy from either the right or left lower extremity following electrodiagnostic studies . . . additionally, there is no evidence of polyneuropathy." The May 2011 private record from Dr. K. reflects that knee and ankle jerk reflexes were normal, and the sensory examination was normal. Based on the foregoing, the Board finds that a separate rating for incomplete or complete paralysis of a nerve is not warranted. There is also no competent credible evidence of record that the Veteran has bowel or bladder impairment due to his service-connected lumbar spine disability. The clinical records noted above reflect that the Veteran has denied any such impairment. The Board has considered whether the Veteran is entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS), but the evidence of record does not reflect that the Veteran had incapacitating episodes during the pertinent time period on appeal. In sum, the evidence of record does not support a finding that a rating in excess of 20 percent is warranted for the Veteran's service-connected spine disability at any time on appeal. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extra-schedular Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The Veteran's spine is manifested by pain, reduced range of motion, a history of reported radiculopathy and/or neuropathy symptoms; all of these symptoms have been considered in the Veteran's rating evaluations; therefore, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). The Board also notes that in an August 2005 statement, the Veteran stated that he had increased irritability, decreased libido, decreased sleep, and changes in blood pressure medications; however, he has indicated that this is due to pain in the shoulder and neck, for which he is not service connected. In addition, in a February 2006 rating decision, the RO denied entitlement to service connection for those disabilities. The RO also denied a claim for entitlement to pitting edema of the feet and legs secondary to the Veteran's service-connected low back disability. The Veteran did not appeal that decision. Finally, the Board notes that, assuming arguendo, that the Veteran had symptoms of his service-connected disability not considered in the rating criteria, there is no competent credible evidence of record that any such symptoms have caused marked interference with his employment or frequent periods of hospitalization; thus, referral for extra-schedular consideration is not warranted. In this regard, the Board notes that the Veteran has been unemployed since approximately 2000 due to a post-service work accident; however, there is no evidence of frequent hospitalizations or periods of incapacitation due to his service-connected back disability. Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. SSA records reflect that the Veteran reported low back pain, left hip pain, left leg pain, left foot pain, left shoulder pain, bilateral elbow pain, right foot gout, a heart disability, and depression. The evidence of record reflects that the Veteran ceased working in 2000 after an injury in the coal mines, which led to physical disability and also major depressive disorder. (A February 2001 private psychiatric evaluation from River Park Hospital reflects that the Veteran reported that he was in constant pain since his mining accident, had decreased sleep since the it, and had hallucinations and flashbacks of the mining accident.) The Board finds, based on the evidence as a whole, that the issue of entitlement to TDIU has not been reasonably raised by the record. ORDER Entitlement to service connection for a lung disorder claimed as chronic obstructive pulmonary disease (COPD) to include as due to asbestos exposure is denied. Entitlement to service connection for a cervical spine disorder to include as secondary to a service connected lumbar spine disorder is denied. Entitlement to a rating in excess of 20 percent disabling for degenerative disc disease of the lumbar spine is denied. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs