Citation Nr: 0834941 Decision Date: 10/10/08 Archive Date: 10/16/08 DOCKET NO. 06-36 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a breathing disorder, a disorder manifested by an irregular heart beat, and skin cancer, claimed as due to exposure to asbestos, herbicides, and ionizing radiation. 2. Entitlement to service connection for a left testicular tumor and a liver tumor, claimed as due to exposure to herbicides and ionizing radiation. 3. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from May 1956 to January 1977. He served in the Republic of South Vietnam from April 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Custody of the case was subsequently transferred to the RO in Salt Lake City, Utah. In an August 2005 statement the veteran stated that he had to watch his blood sugar levels, for fear of developing diabetes. While the diabetes is presumptively due to inservice exposure to herbicides, it does not appear that the veteran now has diabetes. However, if in the future he should develop diabetes, he may then file a claim for service connection for diabetes. FINDINGS OF FACT 1. Because the veteran served in the Republic of South Vietnam from April 1968 to November 1969 he is presumed to have been exposed to herbicides, including Agent Orange. 2. Although the veteran may have been exposed to radar operations the evidence does not demonstrate that he was exposed to ionizing radiation during active service. 3. The evidence of record does not demonstrate asbestos exposure during active service. 4. A chronic pulmonary disorder, a left testicular tumor, and skin cancer are not shown at any time. 5. Chronic cardiac pathology is not affirmatively shown to have had its onset during service, and chronic cardiac pathology which first manifested after service is unrelated to an injury, disease or event of service origin to include exposure to herbicides. 6. A cancerous liver tumor is not shown at any time and a simple liver cyst is affirmatively shown to have had onset after service and is unrelated to an injury, disease or event of service origin to include exposure to herbicides. 5. PTSD is shown to be productive of a disability picture that equates to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to various symptoms such as disturbance of mood and affect, sleep disturbance, intrusive thoughts, flashbacks, and nightmares; his disability picture is one of no more than mild or transient occupational and social impairment with reduced work efficiency only during periods of significant stress and there is no evidence of such symptoms as circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. The veteran was not exposed to ionizing radiation or asbestos during active service. 38 U.S.C.A. § 1112 (West 2002) and 38 C.F.R. § 3.309, 3.311 (2007). 2. A chronic pulmonary disorder, a left testicular tumor, and skin cancer, claimed as due to in-service herbicide exposure, are not shown. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.309 (2007). 3. Chronic cardiac pathology was not incurred in or aggravated by service, did not manifest within one year after service and is not presumptively due to in-service herbicide exposure. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 4. A liver tumor to include was not incurred in or aggravated by service, did not manifest within one year after service and is not presumptively due to in-service herbicide exposure. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 5. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's PTSD claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Regarding the remaining claims on appeal, Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in March 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006 the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Based on the foregoing, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claims. The veteran was afforded the opportunity to testify at a personal hearing but he declined that opportunity. The RO has obtained the veteran's service medical records and postservice treatment records at a military medical facility, and private medical treatment records. Regarding the claims of service connection, a VA examination is not required in the absence of evidence of an association with an established event or injury in service (back disability) or evidence of current disability (arthritis of the right hip and knee, left hip and knee, and traumatic arthritis of multiple joints). The veteran was afforded VA examination for the claim for service connection for PTSD in April 2006, which is also sufficient for rating purposes. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The veteran has not identified any additionally available evidence for consideration in his appeal. As there is neither indication that the veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. II. Factual Background The veteran's service treatment records and service personnel records have been reviewed. A May 1956 enlistment examination found that the veteran had mild acne vulgaris on his shoulders and back. During active service, the veteran was treated for infectious mononucleosis in August 1958 and for an unknown influenza virus in March 1960. The veteran was hospitalized in May 1962 and June 1962 for dermatophytosis of both feet. He had a long history of scaling dermatitis of the feet and a reaction of the hands. He steadily improved during hospitalization. The service treatment records next show that the veteran was seen in August 1970 for right-sided chest pain. On examination, his lungs were clear and he had a normal sinus rhythm of the heart without rubs or murmurs. A September 1976 EKG was within normal limits. All chest X-rays during service were negative. The veteran's final in-service examination, conducted in September 1976, revealed no respiratory, cardiac, skin, testicular or liver abnormalities and the veteran denied any such complaints in a report of medical history completed at that time. Following separation from active service, the veteran was treated in July 1981 at a military medical facility for dermatitis of the genital region. A September 1982 EKG was within normal limits. A February 1988 EKG found sinus arrhythmia with one premature ventricular contraction but no ischemic changes. In May 1988 it was noted that he had been hospitalized in February 1988 and, after an episode of dizziness, diagnoses of viral labyrinthitis and atrial fibrillation had been made. An October 1991 chest X-ray was normal, with no abnormalities of the cardiomediastinal structures. A January 1991 EKG revealed atrial fibrillation. An October 1991 echocardiogram revealed, in part, aortosclerosis. A September 1993 chest X- ray was normal and an abdominal ultrasound revealed a cyst in the right lobe of the liver but the liver was otherwise normal in appearance. In November 2000, the veteran was treated for atrial fibrillation. A February 2002 treatment record noted that the veteran should be referred for a dermatology consultation and that he had previously had skin cancer. A treatment record later in February 2002 shows that his actinic keratosis of the face and scalp were treated with liquid nitrogen and that he had verruca vulgaris lesion on his palms and hands. The precancerous nature of these was discussed with the veteran. In November 2003 he had a recurring lesion at the site of prior excisions of "skin CA [cancer]." The assessment was a history of skin cancer, most likely actinic keratosis, with prior history of skin cancers in the same location. Medical records dated in 2004 and 2005 written by Dr. D. show that in December 2004 the veteran's lungs were clear to auscultation on examination. He had a slightly irregular heart beat but no murmurs or gallops. He had no skin lesions. The impression was probable atrial fibrillation, which was confirmed in a December 2004 EKG. In February 2005 his lungs were again clear on examination and there were no murmurs or gallops but his pulse rate was slow and irregular. The impressions included atrial fibrillation. A January 2006 report of an echocardiogram demonstrated bi- atrial enlargement and mild mitral regurgitation, and mild to moderate tricuspid regurgitation. In a March 2006 private treatment record, it was concluded that the study suggested mild reversible ischemia of the inferior wall area. An earlier January 2006 report reflected that the veteran had chronic atrial fibrillation since 1995 with no history of chest pain, shortness of breath, paroxysmal nocturnal dyspnea or orthopnea. He had no history of hypertension or diabetes. He quit smoking in 1997. On examination of his chest there was no accessory muscle movement noted. He had bilateral equal air entry. An EKG revealed atrial fibrillation. The pertinent assessments were chronic atrial fibrillation and an abnormal EKG. In March 2006, a cardiac catheterization found normal left ventricular systolic function and no significant coronary artery disease. A February 2006 progress note form Dr. Pendleton reflects that the veteran had skin cancer on his nose. A cardiology evaluation had found reversible ischemia. The veteran denied chest pain and shortness of breath. In that same report, it was noted that a 2000 study had found a liver tumor. Reportedly, he had been exposed to Agent Orange and asbestos. The assessments were a skin lesion and coronary atherosclerosis. He was to be referred to a dermatologist. A March 2006 record from Dr. Trimble, a dermatologist, reflects that the veteran had skin lesions. He had angiomas of the face and skin tags on his neck. He had a questionable history of skin cancer. In April 2006 the veteran's wife stated that she was aware that the veteran had Vietnam Syndrome. He would wake at night, yelling and screaming. Additionally, he had flashbacks and nightmares because of the Gulf War. On VA psychiatric examination in April 2006 the veteran reported that after serving in Vietnam he developed flashbacks and nightmares. He also began drinking. He had gotten hold of the situation somewhat until the Gulf War broke out and then the nightmares began again. He was treated for depression in 1995 and was put on Zoloft. He now had flashbacks and nightmares and reported that his symptoms occurred constantly. The effect of the symptom on his daily functioning was to create a feeling of sadness. He had had problems with his marriage and handling money, having gone bankrupt in 2000. He had had a minimal response taking Zoloft. Continuous treatment was still required to control his symptoms and he visited his family doctor once a year. He had not had psychotherapy within the past year and he had not had any psychiatric hospitalizations. During service, his occupation was a vehicle transpiration supervisor and helicopter machine gunner. His military decorations included the Combat Action Badge, and the Vietnam Service Medal. He had engaged in combat in Vietnam. He had continued to receive further education and training during service after returning from Vietnam. He was receiving treatment for skin cancer but had not been hospitalized for it. He had in irregular rhythm of his heart for which he was being treated but had not been hospitalized. He had a tumor in his liver and on his left testicle. After service, the veteran was employed as a heavy vehicle operator for 18 years. His relationship with his supervisor and co-workers was good, but he had some problems as work and some stress. His relationship with his children was described as being great. It was reported that there had been major changes in his daily activities and social function since his mental condition had developed. He had drunk alcohol excessively in the past, and still drank alcohol. He demonstrated avoidance of stimuli associated with inservice trauma, with efforts to avoid thoughts, feelings or conversations associated with trauma and he tried to avoid intrusive thoughts. However, his efforts to avoid activities, places or people that aroused recollections were not persistent. He had a markedly diminished interest or participation in significant activities but this was not persistent since he did go to social events. Feelings of detachment and estrangement from others were also not persistent and Zoloft helped control his mood. He complained of symptoms of increased arousal, exaggerated startle response, as well as difficulty falling and staying asleep. On mental status evaluation, the veteran's orientation, communication, speech, concentration, thought processes, and memory were all normal. His appearance, hygiene, and behavior were appropriate. His affect and mood were abnormal, having a flattened affect and a nearly continuous depressed mood, but he was able to function independently and with daily doses of Zoloft his mood was fairly good. There was an absence of panic attacks, suspiciousness, history of delusions, history of hallucinations, obsessional rituals, impaired judgment, impaired abstract thinking, as well as homicidal and suicidal ideation. There were no hallucinations found during the evaluation. The diagnoses were post-traumatic stress disorder and alcohol dependence, with the latter representing a progression of the former. It was noted that the symptoms of the two disorders could be delineated from each other, with the thoughts of combat being due to post-traumatic stress disorder and the daily intoxication being due to alcohol dependence. The Global Assessment of Functioning was 65. It was commented that if the veteran reduced his exposure to news and political events and internet information about the Iraq War, his symptoms would diminish. He had no difficulty performing the activities of daily living. His psychiatric symptoms were mild or transient but caused occupational and social impairment with decreased work efficiency and occupational tasks only during periods of significant stress. His symptom of depression was treated with anti-depressant medication (Zoloft). He had no difficulty understanding simple or complex commands. He did not appear to pose a threat of persistent danger or injury to himself or others. A notation in the report of a private chest X-ray in May 2006 notes that the veteran had a history of chest pain and of atrial fibrillation. The chest X-ray revealed minimal cardiac enlargement. His lungs were well expanded. A minimal streaky density was seen in the left lung base. The impression was minimal scarring or discoid atelectasis at the left lung base with the lungs well expanded and minimal cardiomegaly. II. General Principles of Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." If not established, a showing of continuity of symptoms after service discharge is required. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. However, not every manifestation of abnormality of heart action or heart sounds or cough, in service will permit service connection for, respectively, disease of the heart or pulmonary disease, first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Certain conditions, such as cancer, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection is limited to cases in which disease or injury have resulted in a disability and absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation) and Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Service connection requires that there 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 inservice disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). The Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2008); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2007). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. III. Analysis The veteran has contended in his September 2006 notice of disagreement (NOD), as well as his November 2006 VA Form 9, that exposure to herbicide and exposure to radiation from radar has caused all of the disabilities for which service connection is claimed. Also, he is claiming that in-service exposure to asbestos has caused a breathing disorder, a cardiac disorder manifested by an irregular heart beat, and skin cancer. Finally, he also contended that he was exposed to Agent Orange, which he believed resulted in his skin cancer and respiratory problems. Radiation Service connection for disability due to inservice ionizing radiation exposure can be shown by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, certain types of cancer are presumptively service connected where a person is a "radiation-exposed veteran" which is defined at 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is otherwise shown that disability, even if first diagnosed after service, is the result of inservice ionizing radiation exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As to inservice ionizing radiation exposure, his only allegation is that he was exposed to radar, which he feels is a form of ionizing radiation. Radar equipment emits microwave-type non-ionizing radiation, which is not subject to review under the statutory and regulatory scheme for claims based on exposure to ionizing radiation. The Court of Appeals for Veterans Claims (Court has taken judicial notice that naval radar equipment emits microwave-type non-ionizing radiation which is not subject to review under the ionizing radiation statute and regulations. Rucker v. Brown, 10 Vet. App. 67 (1997) citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984. While skin cancer is listed as a radiogenic disease under 38 C.F.R. § 3.311(b)(2)(vii), for the provisions of claim development, cancer of the lung, liver, skin or any other cancer (i.e., testicular cancer) must, under 38 C.F.R. § 3.311(b)(5)(iv), manifest within five (5) years of the last exposure, which in this case must be presumed to be when he was last in Vietnam in November 1969. Such is not the case here. Moreover, 38 C.F.R. § 3.311(a) specifically states that the regulatory provisions apply when it is claimed that a radiogenic disease is the "result of exposure to ionizing radiation in service." Since exposure to radar is not exposure to ionizing radiation, the provisions of 38 C.F.R. § 3.311 do not apply. To the extent that the veteran alleges that inservice exposure to radar is exposure to a form of ionizing radiation, where, as here, the determinative issue involves a question of a scientific fact, competent medical evidence is required to substantiate the claim. The appellant as a lay person is not competent to offer an opinion on a matter of scientific fact, and consequently his statements to the extent that he relates any claimed disability to exposure to radar during service does not constitute competent evidence. Rucker v. Brown, 10 Vet. App. 67 (1997) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Asbestos Regarding 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 1988, VA issued a circular on asbestos-related diseases that provided 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, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, 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, Part VI, par. 7.21(a)(1) & (2). The M21-1 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, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). As to the Court, it has held that the M21-1 did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to the General Counsel, in VAOPGCPREC 04-2000 (April 13, 2000), it was held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), and (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. The veteran served not only in vehicle operation but, as stated in his January 2006 initial claim, in a motor vehicle flight line. This appears consistent with his DD Form 214, indicating a primary specialty of Truckmaster. In subsequent statements he indicates that asbestos was used in most Government buildings that were constructed from the 1940s to the 1960s. Even if true, however, his occupational specialty was not one that was likely to expose him to asbestos. Accordingly, the Board concludes that the veteran was not exposed to asbestos. Indeed, his job functions did not involve mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry, construction, or manufacture. Moreover, although working on a motor vehicle flight line, the veteran was not a mechanic and this did not likely service of friction products such as clutch facings and brake linings, nor has he contended to have been involved with the manufacture and installation of roofing or flooring materials, asbestos cement sheet and pipe products, or military equipment. Herbicides A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). If a veteran was exposed to an herbicide agent during active military service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Because the veteran served in the Republic of South Vietnam during the applicable time period, he is presumed to have been exposed to herbicides, including Agent Orange. Service Connection On the basis of the service treatment records, none of the claimed disabilities were affirmatively shown to have been present during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In this vein, it is observed that the in-service notation of treatment for dermatitis reflects that the dermatitis resolved. It is acknowledged that the veteran is competent to describe symptoms of the claimed disabilities. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the service treatment records fail to demonstrate the combination of manifestations sufficient to identify a chronic pulmonary disorder, a chronic cardiac disorder, skin cancer, a testicular tumor or a liver tumor sufficient to establish chronicity during service. As chronicity in service is not adequately supported by the service treatment records, then a showing of continuity of symptomatology after service is required to support the claims. The evidence shows, at most, only some isolated complaints of respiratory problems and is negative for the existence of chronic pulmonary pathology. X-ray evidence of some pulmonary abnormality is not shown until many years after service and even such X-rays do not document the existence of a chronic pulmonary disease. Treatment for skin pathology, variously diagnosed, is also first shown years after active service. Upon review of the evidence, the post-service notations of skin cancer are actually no more than a mere repetition of clinical histories related by the veteran. Specifically, he did not have skin cancers excised from his skin but had removal of actinic keratoses. Since these notations of skin cancers were based upon an erroneous history related by the veteran, they have no probative value and skin cancer is not otherwise shown at any time. Similarly, a post-service study found no more than a simple cyst of the liver and no cancerous liver tumor has ever been document. The record is also devoid of clinical evidence of a testicular tumor. As to cardiac pathology, this also is first shown a number of years after active service. The absence of continuity of symptoms from 1977 and no earlier than the late 1980s for any of the claimed conditions interrupts continuity and is persuasive evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). While the veteran has associated his current conditions to service, the absence of medical evidence of continuity of symptomatology outweighs the veteran's statements of continuity, rendering the lay evidence less probative than the medical evidence on the question of continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). For this reason, service connection for the claimed disabilities based on continuity of symptomatology under 38 C.F.R. § 3.303(b) is not established. Regarding service connection based on the initial documentation after service under 38 C.F.R. § 3.303(d), although the veteran is competent to describe observable symptoms, the claimed disabilities are not capable of lay observation. Rather, the determination as to the presence of the disability is medical in nature, that is, not capable of lay observation. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Where as here, the questions are the existence of a chronic pulmonary disorder, skin cancer, a liver tumor, and a left testicular tumor are not capable of lay observation, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion. 38 C.F.R. § 3.159. As a lay person, the veteran is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis, not capable of lay observation, and on medical causation. For these reasons, the Board rejects the veteran's statements as competent evidence to substantiate that that he has a chronic pulmonary disorder, skin cancer, a testicular disorder or a liver tumor and that his current cardiac pathology had its onset during service or are due to inservice herbicide exposure. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Regarding the cardiac pathology, on the question of medical causation, there is no competent medical evidence in favor of the claim. In the absence of evidence that cardiac pathology may be associated with an established event, injury, or disease in service, VA is not obligated under the duty to assist to obtain a medical opinion addressing causation of cardiac pathology. As the Board may consider only independent medical evidence to support its findings on the questions of a medical diagnosis, not capable of lay observation, and of medical causation, and as there no such evidence favorable to the claims, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). The remaining question is whether the claimed disabilities are associated with exposure to herbicides, including Agent Orange. While chloracne and respiratory cancers are associated with herbicide exposure, the evidence does not show that the veteran has either of these disorders. Moreover, cardiac pathology, non-cancerous skin disorders, testicular tumors, and liver tumors are not diseases associated with exposure to herbicides, including Agent Orange, for which service connection on a presumptive basis may be established. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Furthermore, there is no competent evidence that any of the claimed disorders which actually exist are actually caused by exposure to herbicides, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e); Combee at 34 F.3d 1039. For the foregoing reasons, the preponderance of the evidence is against the claims that the disabilities at issue are the result of exposure to herbicides, and the benefit-of-the- doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Post-Traumatic Stress Disorder Initially Rated 30 percent A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The criteria for the next higher rating, 50 percent, for post-traumatic stress disorder under Diagnostic Code 9411 are occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Codes 9400 and 9411. A GAF score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. A GAF score of 61 to 70 indicates that the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. While the GAF score is relevant evidence, the GAF score alone is neither statutorily nor regulatory controlling in rating a psychiatric disorder, rather the rating is determined by the application of the Rating Schedule, 38 C.F.R. Part 4, as explained above. When it is not possible to separate the effects of a service- connected psychiatric disorder from a nonservice-connected psychiatric disorder, 38 C.F.R. § 3.102 (requiring favorable resolution of reasonable doubt, dictates that all signs and symptoms be attributed to the service-connected psychiatric disorder. Mittleider v. West, 11 Vet. App. 181, 182 (per curiam). Here, the recent VA psychiatric rating examination noted that symptoms of the service-connected post-traumatic stress disorder could be delineated from the nonservice- connected alcohol dependence. So, only those due to the service-connected post-traumatic stress disorder may be considered for rating purposes. Reconciling the various reports into a consistent disability picture, two elements of the present disability emerge. First, the veteran has symptomatology that is associated with the rating criteria and symptomatology not covered in the rating criteria, but is associated with the diagnosis of post-traumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), which is referred to in 38 C.F.R. Part 4, § 4.130 (rating mental disorders). Second, the symptoms do not more nearly approximate the level of disability encompassed in the criteria for a 50 percent rating. Under Diagnostic Code 9411, the current degree of impairment due to the documented symptoms of sadness, impaired mood, and impaired affect is encompassed in the 30 percent rating. In the absence of symptoms of circumstantial or stereotyped speech, panic attacks, difficulty in understanding complex commands, impairment or short and long term memory, impaired judgment or abstract thinking, or disturbances of motivation, and difficulty in establishing and maintaining effective work and social relationships, the disability picture does not more nearly approximate or equate to the criteria for a 50 percent rating. Moreover, the record shows that the veteran has remained married for many years and has a satisfactory relationship with his supervisor and co-workers, as evidence of the ability to maintain effective relationships. With respect to symptoms associated with the diagnosis of post-traumatic stress disorder in DSM-IV, but not listed in Diagnostic Codes 9400 and 9411, such as sleep disturbance, nightmares, flashbacks, and avoidance of activities that arouse recollections of his experiences in Vietnam, these symptoms do not raise the disability to the level of reduced reliability and productivity required for a 50 percent rating. The GAF score of 65 is consistent with the overall disability picture and represents no more than mild impairment. Thus, for the reason explained, the actual symptoms do not more nearly approximate the criteria for the 50 percent rating. Taking into account all the evidence and for the above reasons, the Board finds that the preponderance of the evidence is against the claim for an initial rating greater than 30 percent for post-traumatic stress disorder. This is particularly true in light of the fact that veteran does not require psychotherapy and his satisfactory relationship with his children. Although he has had for file for bankruptcy in the past, his medication helps to control his symptoms and he has no difficulty performing the activities of daily living. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The inadequacy of the schedular criteria is a threshold determination, without which further extraschedular consideration is not required and requires a comparison of the level of disability and symptomatology with the schedular rating. If the latter reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule and the assigned schedular rating is adequate. If not, then it must be determined whether the disability picture exhibits other related factors, an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Thun v. Peake, 22 Vet. App. 111, 115 - 19 (2008)) (citing VAOPGCPREC 6-96). In this case, the disability picture is not so exceptional or unusual as to render impractical the application of the regular schedular criteria. The veteran has not been hospitalized on account of the post-traumatic stress disorder. He has sought emergency room treatment on only one occasion and the post-traumatic stress disorder has not caused marked interference with his employment, i.e., beyond that contemplated by his assigned rating, or otherwise rendered impractical the application of the regular schedular standards. For this reason, the Board finds no basis to refer this case for consideration of an extraschedular rating. ORDER Service connection for a breathing disorder, a disorder manifested by an irregular heart beat, and skin cancer, claimed as due to exposure to asbestos, herbicides, and ionizing radiation is denied. Service connection for a left testicular tumor and a liver tumor, claimed as due to exposure to herbicides and ionizing radiation is denied. An initial rating in excess of 30 percent for post-traumatic stress disorder is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs