Citation Nr: 0517526 Decision Date: 06/28/05 Archive Date: 07/07/05 DOCKET NO. 04-03 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for the cause of the veteran's death, claimed as due to lung cancer from exposure to herbicides or asbestos while in the military. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from January 1968 to November 1971. His Department of Defense Form 214 (DD Form 214) indicates he was awarded the Vietnam Service Medal and had training as an aircraft electrical repairman. He died in January 1993. The appellant is his widow. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied service connection for the cause of the veteran's death predicated on exposure to herbicides while in the military. A subsequent August 2003 RO decision also denied the claim based on purported exposure to asbestos in the military. FINDINGS OF FACT 1. The veteran died on January [redacted], 1993, as a result of respiratory failure due to pneumonia as a consequence of metastatic small cell cancer that was primary to the lung. An autopsy was not performed. 2. The veteran's fatal lung cancer first manifested in 1991, many years after his discharge from the military; his military service did not include a tour in the Republic of Vietnam, and he was not otherwise exposed to herbicides or asbestos during service. 3. At the time of his death, the veteran's only service- connected disability was residuals of fractures of the right 3rd and 4th metacarpals, rated 10 percent disabling, and he did not have any disability of service origin that contributed substantially and materially to his death, or hastened it, or otherwise aided or lent assistance to it. CONCLUSIONS OF LAW 1. The terminal lung cancer was not incurred in or aggravated by active service, did not manifest to a compensable degree within one year after service - so may not be presumed to have been so incurred, and was not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2004); and Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 2. The veteran's death was not proximately due to or the result of a condition incurred or aggravated during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) became effective November 9, 2000. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance if there is no reasonable possibility that it would aid in substantiating the claim. Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Recently, the United States Court of Appeals for Veterans Claims (Court) addressed both the timing and content of the VCAA notice requirements imposed upon VA by the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 120 - 21 (2004) (Pelegrini II) (withdrawing it's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) (Pelegrini I)). In VAOPGCPREC 7-2004 (July 16, 2004) it was determined that the "holdings" in Pelegrini II were not necessary to the disposition of the case and implied that the Court's statements constituted dicta rather than binding holdings. Id. (citing dissenting opinion in Pelegrini II and other cases characterizing Court statements as dicta). Here, however, even if the Pelegrini II Court's statements were binding holdings, the RO nonetheless complied with them. The Court in Pelegrini II held that a VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini II, at 115. In this case, the appellant was provided the required VCAA notice in a March 2003 letter, so prior to the April 2003 adjudication of her claim for cause of death based on herbicide exposure. She also received additional VCAA notice in a July 2003 letter, so prior to the August 2003 adjudication of her claim for cause of death based on asbestos exposure. This was in accordance with the holding in Pelegrini II. The Court in Pelegrini II also held that VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in his or her possession that pertains to the claim. Pelegrini II, at 120-21. This new "fourth element" is required under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Id. According to VAOGCPREC 7-2004, the Pelegrini II holding does not require that VCAA notification contain any specific "magic words," and that it can be satisfied by a Statement of the Case (SOC) or Supplemental SOC (SSOC) as long as the documents meet the four content requirements listed above. See also Valiao v. Principi, 17 Vet. App. 229, 332 (2003) (implicitly holding that RO decisions and SOC and/or SSOC may satisfy this requirement). The "fourth element" language in Pelegrini I is substantially identical to that of Pelegrini II. VAOPGCPREC 1-04 (Feb. 24, 2004) held that this language was obiter dictum and not binding on VA, see also Pelegrini II, at 130 (Ivers, J., dissenting), and that VA may make a determination as to whether the absence of such a generalized request, as outlined under § 3.159(b)(1), is prejudicial to the claimant. For example, where the claimant is asked to provide any evidence that would substantiate his or her claim, a more generalized request in many cases would be superfluous. Id. The Board is bound by the precedent VA GC opinions. 38 U.S.C.A. § 7104(c). Here, although the VCAA notice letters did not contain the precise language specified in 38 C.F.R. § 3.159(b)(1), the Board finds the appellant was otherwise fully notified of the need to give VA any evidence pertaining to the claim, whether predicated on exposure to herbicides or asbestos. The VCAA letters requested that the appellant provide or identify any evidence supporting her claim and specifically outlined the necessary evidence. So a more generalized request with the precise language outlined in § 3.159(b)(1) would be redundant. The absence of such a request is unlikely to prejudice her, and thus, the Board finds this to be harmless error. VAOPGCPREC 1-04 (Feb. 24, 2004). Also, the other three content requirements of the VCAA notice in Pelegrini II have been satisfied. The veteran's available service medical records (SMRs) are on file, as are all of his service personnel records. Also on file are VA clinical records from 1972 and numerous private clinical records. Further, the appellant testified in support of her claim at a February 2004 RO hearing. The more recent statements and correspondence from the appellant and her representative do not make reference to or otherwise mention any additional treatment from other sources (e.g., private or non-VA, etc.). In Mayfield v. Nicholson, 19 Vet. App. ____ , No. 02-1077, slip op. at 32, 2005 WL 957317, at *22 (Apr. 14, 2005), it was held that even if there was an error in the timing of the notice, i.e., the VCAA notice did not precede the initial RO adjudication, it could be cured by affording the claimant a meaningful opportunity to participate in VA's claim processing such that the essential fairness of adjudication was unaffected. In this particular case, as mentioned, there is no issue insofar as the timing of the notice and, for the reasons stated, the appellant has had a meaningful and fair opportunity to participate in the processing of her claim. Accordingly, no further development is required to comply with the VCAA or the implementing regulations. And the appellant is not prejudiced by the Board deciding the appeal at this juncture without first remanding the case to the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). Applicable Laws and Regulations To establish service connection for the cause of a veteran's death, the evidence must show that a disability that either was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. §§ 1101, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a), 3.312(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Furthermore, with chronic disease shown as such in service 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 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.; See, too, Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection is also possible for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, including lung cancer, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Disability that is proximately due to or the result of a service-connected disorder shall be service-connected. 38 C.F.R. § 3.310(a) (2004). Service connection will also be granted for aggravation of a non-service-connected condition by a service-connected disorder, although compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). Herbicides Mere exposure to herbicides (Agent Orange) is not a compensable occurrence. See 38 U.S.C. § 1116; see also 38 U.S.C. § 3.309(e); Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994) and Winsett v. West, 11 Vet. App. 420, 425 (1998). 38 U.S.C.A. § 1116(a) provides for presumptive service connection on the basis of herbicide exposure for diseases specified in 38 U.S.C.A. § 1116(a)(2) that manifested to a degree of 10 percent within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Respiratory cancers, including cancer of the lung, becoming manifest to a degree of disability of 10 percent or more are diseases listed at 38 U.S.C.A. § 1116(a)(2)(F) (2002). See also 38 C.F.R. § 3.309(e) (2004). Previously, 38 C.F.R. § 3.307(a)(6)(ii) provided that: The diseases listed at Sec. 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that [] respiratory cancers [shall become manifest] within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C. § 1116(f), however, as added by § 201(a) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107-103, 115 Stat. 976 (2001); (H.R. 1291) (Dec. 27, 2001) removed the 30-year limitation on presumptive service connection for respiratory cancers due to herbicide exposure (although also authorizing the Secretary of VA for a study on the issue of re-limiting presumptive service connection). Previously, under 38 C.F.R. § 3.307(6)(iii), it was only after it was shown that a veteran had a disease presumed to be related to herbicide exposure (listed at 38 C.F.R. § 3.309(e)) that the presumption of exposure attached. However, § 201(c) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107-103, 115 Stat. 976 (2001); (H.R. 1291) (Dec. 27, 2001) has changed this such that the presumption attaches even before a determination is made as to whether the disease is one presumed to be related to herbicide exposure. 38 C.F.R. § 3.307(a)(6)(i) (citing 38 U.S.C. § 1116(a)(4) as authority) provides that: For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, ... Further, 38 C.F.R. § 3.307(a)(6)(iii) (citing 38 U.S.C. §§ 501(a) and 1116(a)(3) as authority) provides that: A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 and has a disease listed at Sec. 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam"' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. "Section 1116(a)(3) of Title 38 of the United States Code establishes a presumption of exposure to certain herbicides for any veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, and has one of the diseases on the list of diseases subject to presumptive service connection. However, if a veteran who did not serve in the Republic of Vietnam, but was exposed to an herbicide agent defined in 38 CFR 3.307(a)(6) during active military service, has a disease on the list of diseases subject to presumptive service connection, VA will presume that the disease is due to the exposure to herbicides. (See 38 CFR 3.309(e))." 66 Fed. Reg. 23166 (May 8, 2001). Analysis The veteran died on January [redacted], 1993, as a result of respiratory failure due to pneumonia as a consequence of widely metastatic small cell cancer that was primary to his lung. An autopsy was not performed. At the time of his death, his only service-connected disability was residuals of fractures of the right 3rd and 4th metacarpals, rated 10 percent disabling. No claim was pending for service connection for any additional disability. There is no evidence of the veteran's terminal lung cancer until 1991, so almost twenty years after conclusion of his military service and any possible exposure to herbicides (or asbestos) while on active duty. The SMRs are unremarkable for indications of complaints or objective clinical findings of a lung disability. A VA chest X-ray in May 1972, so about six months after service, was within normal limits. The appellant-widow contends the veteran served in Vietnam, although his military records do not confirm this, and that he may have been exposed to herbicides while working in Korea on aircraft that, in turn, may have been used in Vietnam to disperse herbicides. Regarding his purported service in Vietnam, the Board need not determine whether any flights over the Republic of Vietnam constitute "high altitude" missions in Vietnam within the meaning of VAOPGCPREC 7-93 (Aug. 12, 1993). Rather, in this case the appellant contends that, although the veteran was stationed in Thailand, Korea, and in Okinawa during the Vietnam Era as shown by his service personnel records, he informed her that he also served in Vietnam. As alluded to, records show the veteran was awarded the Vietnam Service Medal. And from this, the appellant concludes he served in Vietnam. But mere receipt of the Vietnam Service Medal does not, in and of itself, prove that he actually served in the Republic of Vietnam. Generally see VAOPGCPREC 12-99 (Oct. 18, 1999). In fact, servicemen that had active duty in Thailand (as did the veteran) were awarded the Vietnam Service Medal. The appellant testified that her late husband veteran had told her that he had served in Vietnam but had not informed her of his duties or duty stations. Instead, he had simply stated that he had been in Vietnam and would not discuss any events that occurred there because they were too upsetting. See page 2 of the transcript of the RO hearing. This hearing testimony alone, however, does not have sufficient probative value to conclude the veteran served in Vietnam, especially in the absence of any corroborating evidence from the service department such as in his service personnel records. Also, his available SMRs do not indicate any service in Vietnam. And, as noted in the April 2004 SSOC, a search of the Internet by RO personnel found that the insignia worn by him in photographs submitted by the appellant indicates his units were stationed in Thailand. His service personnel records also document service in Korea and Okinawa, but not Vietnam. Accordingly, the Board concludes the veteran did not serve in Vietnam and, thus, it cannot be presumed that he was exposed to herbicides in that capacity. As to the contention the veteran was exposed to herbicides while working in Korea on aircraft that may have dispersed herbicides in Vietnam, there is no corroborating evidence to substantiate this allegation. For the Board to concur with this assertion would require resorting to mere speculation. The appellant testified that a physician had stated there was a possibility the veteran's military experiences had led to his death from exposure to herbicides. The March 2003 statement from Dr. Lafleur indicates he had treated the veteran since 1991, when lung cancer was diagnosed. This diagnosis was compatible with exposure to Agent Orange. It was also reported "[t]here is no question that [the veteran] by history, was exposed to Agent Orange while in Vietnam. He clearly was at risk for development of lung cancer because of this." Again, though, this opinion has little to no probative value because it is predicated entirely on an inaccurate factual premise (that being, the veteran was exposed to Agent Orange while in the military - when, in actuality, for the reasons stated, he was not). See, e.g., Reonal v. Brown, 5 Vet. App. 458 (1993) (an opinion is only as good and credible as the history on which it is based). The Board observes that the physician did not state that the history of Agent Orange exposure was related by the veteran, as opposed the appellant (the veteran's widow). Moreover, the factual basis for concluding the veteran served in Vietnam was not explained. Rather, this statement simply presents a bare conclusion, apparently relying on incorrect information provided, that the veteran served in Vietnam and offers no factual basis that can be otherwise corroborated. So it simply lacks probative value. Consequently, the Board finds the veteran was not exposed to herbicides during military service and that his death many years later was unrelated to his service. Asbestos The appellant-widow also contends the veteran was exposed to asbestos while working in Korea on electronic components of aircraft. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 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, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for 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). 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.). The Court has held that the M21-1 does 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 the disability at issue was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 4-2000 (April 13, 2000), VA's General Counsel held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (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. Analysis There is no independent corroboration of the allegation that the veteran was exposed to asbestos while working on electronic components of aircraft. There is also no evidence of pre-service or post-service asbestos exposure. A December 1991 private clinical record, however, indicates the veteran's father had "asbestos lung" at the age of 87, but there is nothing indicating the veteran was also exposed to asbestos in whatever manner his father may have been exposed. But even assuming that it is possible the veteran was exposed to asbestos during service, the evidence still does not show he ever had any pathological changes of his lung tissue consistent with asbestos exposure. In other words, the M21-1 provides that a clinical diagnosis of asbestosis requires, not only a history of exposure but also radiographic evidence of parenchymal lung disease. And, here, there has never been a diagnosis suggesting the veteran had asbestosis. Also, even assuming, without conceding, that the veteran's extensive work in the military resulted in exposure to asbestos insulation, consistent with the M21-1, there is no medical nexus evidence linking this exposure and his subsequent terminal lung cancer. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The evidence shows the veteran developed pneumonia during the latter stage of his terminal illness, but a January 1993 private clinical record indicates the pneumonia developed after he received chemotherapy. Also, the death certificate is clear that his pneumonia was a consequence of (treatment for) his fatal lung cancer. It is not otherwise shown that his pneumonia was in any way related to any possible asbestos exposure many years earlier during service. In sum, the veteran's fatal small cell (also described in the medical records as oat cell) cancer first manifested in 1991, almost twenty years after his service in the military ended and any possible exposure to either herbicides or asbestos. Thus, since, for the reasons stated, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for the cause of the veteran's death, claimed as due to lung cancer from exposure to herbicides and/or asbestos, is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs