Citation Nr: 1236511 Decision Date: 10/22/12 Archive Date: 11/05/12 DOCKET NO. 06-39 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, as due to herbicide and asbestos exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from October 1981 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana. In October 2010, the Board remanded this case for additional development. The purposes of this remand have been met and the case is ready for appellate consideration. In February 2012, after the Veteran's appeal was re-certified to the Board, the Veteran submitted a statement in which he contended that due to his in-service exposure to hazardous substances, he developed lupus. Although he did not expressly waive RO consideration, the Board observes that these contentions are duplicative of the Veteran's previous contentions, already documented in the claims file. As such, obtaining a waiver is not necessary in order for the Board to proceed with a decision on this matter. 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The Veteran is not shown to have been exposed to herbicides or asbestos during service. 2. The competent evidence of record fails to demonstrate that any current autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, is related to the Veteran's active duty service, nor is any autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, the result of any incident occurring during his military service, including his claimed exposure to herbicides and asbestos. CONCLUSION OF LAW Entitlement to service connection for an autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, as due to herbicide and asbestos exposure, is not warranted. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in September 2005, March 2006, January 2007, and November 2010 that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in September 2005, March 2006, January 2007, and November 2010 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the March 2006 and January 2007 letters also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in September 2005, prior to the appealed from rating decision, along with the subsequent notice provided in March 2006, January 2007, and November 2010, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in September 2008 and February 2012 supplemental statements of the case (SSOCs) and, as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. The claims file contains the Veteran's service treatment records, post-service private medical records, and the Veteran's own statements in support of his claim. In the October 2010 remand, the Board requested that the RO obtain the records pertinent to the Veteran's claim for disability benefits from the Social Security Administration (SSA). The RO subsequently received records from the SSA, which included a Disability Determination and Transmittal Report, dated in November 2003, and the medical records upon which the SSA decision was based. In the October 2010 remand, the Board also requested that the RO obtain records from private physicians that the Veteran had referred to. The RO subsequently received private medical records from Dr. F. and Dr. M. from the Mayo Clinic. In addition, although the Veteran had reported that he had received treatment from a Dr. H., in correspondence received by the RO in December 2011, it was indicated that there were no records pertinent to the Veteran from Dr. H. Moreover, given that the Veteran noted that he had received treatment from a Dr. W., the RO sent two letters to Dr. W., dated in October 2011 and November 2011 respectively. However, there was no response from Dr. W. The Veteran was notified of this via a November 2011 letter and in the February 2012 SSOC. With respect to an examination, the RO did not provide the Veteran with an examination regarding his claim. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When considering whether these criteria are met, the Board will consider the lay evidence of record. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In this case, an examination is not warranted under 38 U.S.C.A. § 5103A(d) for the following reasons. First, the Board recognizes that the evidence of record shows that the Veteran has autoimmune diseases, currently diagnosed as lupus and Kukichi Fujimoto Syndrome. However, prong 2 of the McLendon test is not met as the service treatment records are negative for any complaints or findings of an autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome. Moreover, although the Veteran has maintained that while he was stationed in Japan, he was exposed to herbicides and asbestos, the Veteran's service treatment records are negative for any evidence of in-service herbicide or asbestos exposure. In addition, as explained further below, since the Veteran did not serve in Vietnam, exposure to herbicides is not presumed. Also as explained further below, the Veteran's statements regarding in-service herbicide and asbestos exposure are not deemed to be credible. The Veteran has also submitted no lay evidence of any in-service symptoms or treatment. Furthermore, prong 3 of the McLendon test is not met as there is no indication any current autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, is related to service. There is no medical opinion of record showing such a relationship is possible, nor has the Veteran ever stated a medical professional opined such. In addition, the Veteran has offered no lay evidence of continuity of symptomatology. In other words, he has not alleged that he experienced symptomatology related to an autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, during service or since service, and no such history is shown in his medical records. See Davidson, supra. Therefore an examination is not required. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. II. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2011). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2011). In order to prevail on the issue of service connection, there must be competent and credible evidence of three things: (1) a current disability; (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). III. Analysis Based on a thorough review of the record, the Board finds that there is a preponderance of evidence against the Veteran's claim for service connection for an autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, as due to herbicide and asbestos exposure. In this case, the Veteran contends that during service, he was stationed at a base in Okinawa, Japan. According to the Veteran, while he was at the Okinawa base, he was an MP (Military Police) and had to guard bunkers which contained hazardous substances including herbicides and asbestos. He maintains that due to his in-service exposure to herbicides and asbestos, he later developed lupus and Kukichi Fujimoto Syndrome. The Veteran's DD Form 214, Certificate of Release or Discharge From Active Duty, shows that he served in the United States Air Force from October 1981 to October 1985, with 1 year, 6 months, and 4 days of foreign service. The Veteran's Military Occupational Specialty (MOS) was as a law enforcement specialist. The Veteran's service treatment records are negative for any complaints or findings of an autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome. The first evidence of record of an autoimmune disease is in April 2003, over 17 years after the Veteran's discharge. Private medical records, dated from August 2000 to July 2005, show that in April 2003, the Veteran was treated for complaints of generalized joint aches and fatigue. The diagnosis was lupus. The records also show that in October 2003, the Veteran was diagnosed with Kikuchi-Fujimoto syndrome. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years is a significant factor. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board recognizes that the Veteran has diagnoses of autoimmune diseases, currently diagnosed as lupus and Kukichi Fujimoto Syndrome. However, there is no competent medical evidence of record of a nexus between the Veteran's currently diagnosed lupus and Kukichi Fujimoto Syndrome, and his period of active service. The evidence of record includes numerous private medical records which show intermittent treatment for the Veteran's lupus and Kukichi Fujimoto Syndrome from April 2003 to September 2011. The evidence of record also includes records from the SSA, which include a Disability Determination and Transmittal Report, dated in November 2003. The SSA Disability Determination and Transmittal Report shows that the Veteran was awarded Social Security disability benefits for diseases of connective tissue (systemic lupus) (primary diagnosis). However, the aforementioned evidence is negative for any opinion linking the Veteran's lupus and/or Kukichi Fujimoto Syndrome to his period of service, to include his claimed in-service exposure to herbicides and asbestos. In fact, the Veteran has never indicated that a medical professional opined such. The Board recognizes the Veteran's contention that during service, and specifically while he was stationed in Okinawa, Japan, he was exposed to herbicides and asbestos. In regard to the Veteran's claimed in-service exposure to herbicides, at the outset, the Board notes that the Veteran's DD Form 214 does not show that he had service in the Republic of Vietnam and it is not contended otherwise. As the Veteran did not serve in Vietnam during the Vietnam era, the presumption of exposure to herbicide agents, to include Agent Orange, is not applicable. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). The Board parenthetically notes that the Veteran's currently diagnosed lupus and Kukichi Fujimoto Syndrome are not among the disorders that are presumed to be associated with exposure to herbicides. 38 C.F.R. § 3.309(a). The Veteran's service treatment records are negative for any findings of exposure to herbicides during service. In addition, the Board notes that in August 2005, the RO requested that the National Personnel Records Center (NPRC) furnish any records showing exposure to herbicides during the Veteran's period of active service. In the return response, dated in September 2005, the NPRC reported that there were no records of exposure to herbicides. The Veteran is competent to provide evidence about matters of which he has personal knowledge; for example, he is competent to report that he experienced an event during service or that he had certain symptoms. See Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Veteran is competent to testify that he was exposed to herbicides during service. However, the Board does not find the Veteran's statements regarding herbicide exposure in service to be credible. The Veteran's service treatment records are negative for herbicide-related disease or any mention of herbicide exposure. In addition, the NPRC has reported that there are no records of exposure to herbicides. There is no credible evidence of the Veteran's claimed exposure. In fact, he has provided no evidence or incidents of actual exposure; he merely states he guarded buildings where herbicides were stored. Thus, the Board finds that the Veteran's statements are not credible, are inconsistent with his MOS as a law enforcement specialist, and are not sufficient to establish that he was exposed to herbicides during active duty service. In regard to the Veteran's claimed in-service asbestos exposure, 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 Court and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. The Board finds that the weight of the evidence demonstrates that the Veteran was not exposed to asbestos during active duty service. The Board recognizes that it is the Veteran's contention that as an MP, he had to guard bunkers which contained hazardous substances including asbestos. The Veteran is competent to provide evidence about matters of which he has personal knowledge; for example, he is competent to report that he experienced an event during service or that he had certain symptoms. See Falzone, supra. Therefore, the Veteran is competent to testify that he was exposed to asbestos during service. However, the Board does not find the Veteran's statements regarding asbestos exposure in service to be credible. The Veteran's service treatment records are negative for asbestos-related disease or any mention of asbestos exposure. The Board also finds that the record does not indicate that the Veteran has an asbestos-related disability. There is no credible evidence of the Veteran's claimed exposure. In fact, he has provided no evidence or incidents of actual exposure; he merely states he was exposed to asbestos during service. Thus, the Board finds that the Veteran's statements are not credible, are inconsistent with his MOS as a law enforcement specialist, and are not sufficient to establish that he was exposed to asbestos during active duty service. In the instant case, the only evidence of record supporting the Veteran's claim is his own lay opinion that his currently diagnosed lupus and Kukichi Fujimoto Syndrome are related to his period of active service, specifically to his claimed in-service exposure to herbicides and asbestos. However, as stated above, there is no credible evidence of record showing that the Veteran was exposed to herbicides and asbestos during service. In addition, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating the currently diagnosed lupus and Kukichi Fujimoto Syndrome to the Veteran's period of active service, the Board finds that the etiology of the Veteran's lupus and Kukichi Fujimoto Syndrome is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms such as fatigue and weakness in his extremities, which is non-medical in nature; however, he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities (e.g., rheumatic fever) are not conditions capable of lay diagnosis). No medical evidence of record relates the Veteran's currently diagnosed lupus and Kukichi Fujimoto Syndrome to his period of active service, nor has he indicated a medical professional has ever told him such a relationship is possible. In addition, the Veteran has not alleged any continuation of symptomatology from service. In other words, he has not maintained that during service, he experienced symptomatology of his lupus and/or Kukichi Fujimoto Syndrome and continued to experience such symptomatology after his discharge. When he was referred to Dr. M. in August 2004, he reported a history of joint pain and swelling of 6-7 years' duration, which would date the symptoms back to 1997 at the earliest. That was more than a decade after his military service ended. In view of the foregoing, the Board concludes that there is a preponderance of evidence against the Veteran's claim for service connection for an autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, as due to herbicide and asbestos exposure. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an autoimmune disease, to include lupus and Kukichi Fujimoto Syndrome, as due to herbicide and asbestos exposure, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs