Citation Nr: 1301171 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-50 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from December 1963 to December 1965. He died in October 2008; the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied entitlement to the benefit sought on appeal. The appellant appealed the decision to the Board, and the case was referred to the Board for appellate review. A Veterans Health Administration (VHA) opinion was obtained by the Board in July 2012. An additional, clarifying VHA opinion was obtained in August 2012. The appellant was provided a copy of the opinion in September 2012 and given 60 days from the date of the letter to submit any additional evidence or argument. The appellant's representative submitted additional argument in December 2012, but no other response was received. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in October 2008, and the immediate cause of death was listed as metastatic esophageal cancer. 2. At the time of the Veteran's death, service connection had not been established for any disability. 3. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 4. The cause of the Veteran's death (metastatic esophageal cancer) did not have its onset during service or for many years thereafter, may not be presumed to be due to service, to include exposure to herbicides, and is not shown by competent medical evidence, or competent and credible lay evidence, to be related to any in-service injury or disease, including exposure to herbicides. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2010); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, it will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Certain additional notice requirements attach in the context of a claim for dependency and indemnity compensation benefits based on service connection for the cause of death. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed.Cir. May 19, 2009). Generally, 38 U.S.C.A. § 5103(a) notice for a dependency and indemnity compensation case must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation claim based on a condition not yet service-connected. The content of the notice letter will depend upon the information provided in the claimant's application. In a May 2009 letter the appellant was provided notice regarding what information and evidence is needed to substantiate a claim for entitlement to service connection for the cause of the Veteran's death, as well as what information and evidence must be submitted by the appellant, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim. Because service connection was not in effect for any disability suffered by the Veteran, properly tailored notice need not have included the items listed in (1) and (2) above. In any event, the notice was sufficient with regard to Hupp. The May 2009 notice also informed the appellant as to the law pertaining to the assignment of an effective date as the Court required in Dingess/Hartman. In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. Duty to assist With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA treatment records, private treatment records, and the appellant's statements in support of her claim. The Board has carefully reviewed the appellant's statements and concludes that there has been no identification of further available evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim for which VA has a further duty to obtain. In addition, the appellant was afforded a VHA medical opinion with respect to her claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that together, the July and August 2012 VHA medical opinion reports are adequate. The VHA physician reviewed the claims file, and provided a medical opinion with adequate rationale that is supported by the objective evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Consequently, the Board finds that the VHA opinion is adequate. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Legal criteria and Analysis With respect to the appellant's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson 21 Vet. App. 303, 309 (2007). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cancer, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. 38 C.F.R. § 3.307(a). 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. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. "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. See also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: 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; B cell leukemia, Parkinson's disease, 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); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996). Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). Medical evidence is required to establish a causal connection between service or a disability of service origin and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102. However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for the cause of the Veteran's death is not warranted. As reflected above, the certificate of death indicates that the Veteran died in October 2008. The immediate cause of death was esophageal cancer with metastatic. No underlying causes were noted, and no other contributing conditions were noted. The appellant contends that the Veteran's esophageal cancer was the result of his exposure to herbicides while serving on active duty in Vietnam. At the time of his death, the Veteran was not service-connected for any disability. With respect to the appellant's contentions that the Veteran's esophageal cancer was caused by exposure to herbicides during service, the Board notes that the Veteran did serve in Vietnam; therefore, exposure to herbicides is presumed. Despite presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is not warranted. Service connection is only warranted on this presumptive basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e) as listed above. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides 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. 72 Fed. Reg. 112 (2007). The Secretary has not determined that a presumption of service connection is warranted for esophageal cancer. To the contrary, the Secretary has determined that esophageal cancer and other gastrointestinal cancers are not associated with expose to herbicides. 72 Fed. Reg. 32,395 (June 12, 2007). As the Veteran's diagnosed disability is not among the diseases recognized under 38 C.F.R. § 3.309(e), as a disease associated with exposure to certain herbicide agents, presumptive service connection on the basis of herbicide exposure is not warranted. Moreover, the appellant has not submitted any medical or scientific evidence suggesting any link between exposure to herbicides and the occurrence of esophageal cancer. In this regard, the July and August 2012 VHA opinion reports from Dr. T. state that there is no medical literature which indicates that herbicides are causatively related to cancers of the gastrointestinal tract. Therefore, the Veteran's esophageal cancer is not considered to be service-connected on a presumptive basis as a result of herbicide exposure. With regard to the claim on a direct basis, the Veteran's service treatment records are negative for esophageal cancer and the separation examination is negative for esophageal cancer. The initial diagnosis of esophageal cancer was made just over a year prior to the Veteran's death in October 2008. As such, it was over 40 years after the Veteran's discharge from service. There is also no competent evidence linking the Veteran's esophageal cancer to military service, to include exposure to herbicides therein. The appellant has not alleged that the Veteran had had continuous symptomatology since service and there is no medical evidence indicating that the esophageal cancer was otherwise in any way related to service. Notably, the Board obtained a VHA opinion in this case. The July and August 2012 opinions, authored by the same physician, Dr. T., indicate that the Veteran was diagnosed with adenocarinoma of the esophagus in September 2007 and subsequently died from metastatic disease in October 2008. Dr. T. noted that the Veteran had a long history of tobacco use 20 years prior, a personal history of gastroesophageal reflux disease (GERD) for the preceding 10 years with evidence of Barrett's esophagus on biopsy at the time of the diagnosis of cancer, and a family history of cancer (the Veteran's mother had oral cancer). Dr. T. opined that the Veteran's smoking history, long history of GERD with prior documented Barrett's esophagus, and elevated body mass index (BMI) placed the Veteran at heightened risk for the development of esophageal cancer. Dr. T., an oncologist, stated that there is no medical evidence that Agent Orange plays a causative role in esophageal cancer or any other cancer of the gastrointestinal tract. In sum, Dr. T. found that it is unlikely that the Veteran's death from metastatic esophageal adenocarcinoma was related to or attributable to his military service, and in particular to his presumed exposure to Agent Orange. Instead, he had documented risk factors for development of esophageal cancer that included prior tobacco history, a long history of GERD with Barrett's esophagus and an elevated BMI based upon his recorded weight at time of presentation with documented 40 pound weight loss. The medical evidence of record includes a September 2007 private treatment record (pathology report) which notes biopsies of the distal esophagus showed a poorly differentiated adenocarcinoma. A September 2007 operative report notes that the Veteran had had difficulties with heartburn for a decade. A December 2007 private treatment record notes that the Veteran was diagnosed with esophageal cancer in September 2007. It was noted that he had lost 40 pounds. It was further noted that he smoked for 29 years and quit 20 years ago. His mother died of mouth cancer. The Veteran was noted to be six feet tall and weighed in at 212 pounds. In essence, the evidence linking the Veteran's esophageal cancer to active service is limited to the appellant's own statements. As noted above, the appellant has not indicated that the Veteran experienced a continuity of symptomatology since service. With regard to the appellant's allegation that the esophageal cancer was a result of exposure to herbicides during service, while she is competent to report what symptoms she witnessed occur in the Veteran, the appellant's testimony must be weighed against the objective evidence. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. The fact that the separation examination report revealed normal examination of the mouth and throat, the lack of notation of any esophageal cancer in the service treatment records, and the absence of evidence of any esophageal cancer until decades after service, serve to outweigh any general testimony regarding continuity of symptomatology. Maxson v. Gober, 230 F.3d at 1333 (the passage of many years between service and documentation of a claimed disability can be a factor that weighs against a claim for service connection). Moreover, the appellant's contentions regarding the Veteran's esophageal cancer being etiologically related to the Veteran's exposure to herbicides is outweighed by the fact that there is no sound medical and scientific evidence indicating that a positive association exists between exposure to an herbicide agent and the occurrence of esophageal cancer, as well as the VHA medical opinion against the claim. See 38 C.F.R. § 3.309(e). The appellant has not generally asserted that the Veteran's esphageal cancer is etiologically related to military service in general, apart from the allegation that it is due to herbicide exposure therein. Regardless, the Board has considered the appellant's lay assertions in deciding this claim. In this regard, 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, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). However, the appellant as a lay person is not competent to testify that the Veteran's esophageal cancer was caused by his active service, to include exposure to herbicides. Concerning this, the Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). In this case, the appellant is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion as to whether the Veteran's esophageal cancer is related to active service, to include herbicide exposure. Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, esophageal cancer is not a condition capable of lay diagnosis, nor is it the type of condition that can be causally related to military service without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Instead, the onset and diagnosis of esophageal cancer requires medical testing and the cause of the disease is a matter of medical complexity. Thus, the Board concludes that, although the appellant is competent to report what she observed the Veteran experience, or symptoms he described or were discernible to her, her statements as to the cause and diagnosis of his esophageal cancer do not constitute competent evidence. As a layperson, she is not competent to provide evidence that requires medical knowledge because she lacks the requisite professional medical training, certification and expertise to present opinions regarding such matters. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that matters involving special experience or special knowledge require the opinions of witnesses skilled in that particular science, art, or trade). Therefore, the appellant's statements regarding the etiology and diagnosis of the Veteran's terminal esophageal cancer in this case do not constitute competent medical evidence on which the Board can make a service connection determination. In any event, the VHA opinion report specifically indicates that the Veteran had several risk factors for developing esophageal cancer, namely tobacco use history, GERD, Barrett's esophagus, elevated BMI, and family history of oral cancer. The VHA physician, Dr. T., opined that these factors predisposed the Veteran to develop esophageal cancer, and that in light of such contributing factors, it was unlikely that the esophageal cancer was caused by active service, to include herbicide exposure. In sum, there has been no demonstration by competent, credible evidence of record that the Veteran's esophageal cancer was etiologically related to military service, to include exposure to herbicides therein. Because the preponderance of the evidence is against the appellant's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs