Citation Nr: 1333368 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-21 734A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from April 1943 to February 1946. He died in November 2002. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Oakland, California, in which the RO essentially reopened the appellant's previously denied claim of service connection for the cause of the Veteran's death and denied this claim on the merits. In July 2008, the Board reopened the appellant's previously denied claim of service connection for the cause of the Veteran's death and remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In June 2009, the Board once again remanded this claim for additional development. The purposes of these remands have been met and the case is ready for appellate consideration. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in November 2002, at the age of 79. The certificate of death lists the cause of death as metastatic prostate cancer. 2. At the time of the Veteran's death, service connection was not in effect for any disease or disability. 3. The Veteran's fatal prostate cancer is not attributable to his active military service, including in-service exposure to ionizing radiation, nor was it manifested to a compensable degree within one year of discharge from service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2013). 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the January 2005 letter sent to the appellant by the RO adequately apprised her 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). The United States Court of Appeals for Veterans' Claims (Court) recently determined in Hupp v. Nicholson, 21 Vet. App. 342 (2007) that, when adjudicating a claim for Dependency and Indemnity Compensation (DIC), VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC 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 claim for service connection for the cause of the veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. Additionally, during the pendency of this appeal, on March 3, 2006, the 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 Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. This notice must also inform the appellant that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. 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 January 2005 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the appellant received notice of the evidence needed to substantiate her claim, the avenues by which she might obtain such evidence, and the allocation of responsibilities between herself 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). Regarding the Hupp requirements, the first two of the three elements are not applicable as service connection was not in effect for any disease or disability during the Veteran's lifetime. With respect to the third element, the January 2005 letter did not contain all of the elements required by the Court's opinion in Hupp, supra. However, despite any inadequate notice under Hupp, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. 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). In the aforementioned letter, the appellant was advised of the criteria for service connection for the cause of the Veteran's death as well as provided information as to the assistance VA would provide in helping her secure evidence in support of the claim. The RO also noted that there was no evidence of radiation exposure. At the time of the letter, that information was correct. However, subsequent to that letter, the Department of the Army concluded that it was likely that the Veteran was a participant of Operation TRINITY and that his radiation dose estimate was up to 6 rem. Thus, in a September 2007 supplemental statement of the case (SSOC), the appellant was specifically informed that the Veteran was involved in Operation TRINITY and that he was exposed to ionizing radiation. The appellant was also informed that the Department of Veterans Affairs Under Secretary for Health Care had provided an opinion that because the sensitivity of the prostate to radiation carcinogenesis appeared to be relatively low and not clearly established, there was no reasonable possibility that the Veteran's prostate cancer resulted from in-service radiation exposure. Therefore, the appellant was informed that her claim was denied because there was no evidence linking the Veteran's fatal prostate cancer to his period of service, to include radiation exposure. Accordingly, she was provided an explanation concerning why service connection for the cause of the Veteran's death was not granted. The Board also notes that in the July 2006 statement of the case (SOC), the appellant was provided the text of the pertinent cause of death regulations, 38 C.F.R. § 3.312. Thus, during the appeal, the appellant had actual notice of the elements required by the Court's opinion in Hupp, as well as an opportunity to submit additional evidence or argument to support her claim for service connection for her husband's death. 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." VA did provide such notice to the appellant prior to the August 2005 decision that is the subject of this appeal in its January 2005 letter. In addition, with respect to the Dingess requirements, in the aforementioned letter, the appellant was provided with notice of what type of information and evidence was needed to substantiate her claim for service connection for the cause of the Veteran's death; however, she was not provided with notice of the type of evidence necessary to establish a rating or effective date for the rating. Despite any inadequate notice under Dingess, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard, supra. In this regard, as the Board concludes below that there is a preponderance of evidence against the appellant's claim for service connection for the cause of the Veteran's death, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. The Board also notes that the case was readjudicated in September 2007, December 2008, and August 2013 SSOC's and, as such, the Veteran has not been prejudiced thereby. See Bernard, supra. The appellant 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, she has been provided a meaningful opportunity to participate effectively in the processing of her claim by VA. Duty to Assist With respect to the duty to assist, the Board also finds that all necessary assistance has been provided to the appellant regarding the issue adjudicated in this decision. There is no indication in the record that any additional evidence relevant to the appellant's cause of death claim is available and not part of the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As explained in more detail below, the Board has obtained a July 2005 Memorandum wherein the Chief Public Health and Environmental Hazards Officer opined that it was unlikely that the Veteran's prostate cancer could be attributed to in-service radiation exposure. Thus, VA is not required to obtain another opinion regarding whether the Veteran's death was attributable to service. See 38 C.F.R. § 3.159 (c)(4). VA informed the appellant of its duty to assist in obtaining records and supportive evidence. In this regard, according to the National Personnel Records Center (NPRC), the Veteran's service treatment records are not available and were presumably destroyed in the 1973 fire at the NPRC. Thus, further efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). The Board notes substantial compliance with the remand directives in its previous remands in July 2008 and June 2009, to the extent possible. See Stegall v. West, 11 Vet. App. 268 (1998). In the remands, it was noted that according to the appellant, the Veteran's in-service ionizing radiation exposure while working on the Manhattan Project led to the prostate cancer which caused his death. With respect to the Veteran's in-service radiation exposure, in a March 2005 letter from the Department of the Army, they stated that it was likely that the Veteran was a participant of Operation TRINITY in New Mexico. The Veteran's radiation dose estimate was up to 6 rem. In the July 2008 remand, the Board stated that the appellant had notified the RO in a September 2007 correspondence that, in addition to working on the Manhattan Project in Los Alamos, New Mexico, the Veteran had also worked for a short time on that project in Oak Ridge, Tennessee. The Board reported that no action had been taken by VA to attempt to obtain the Veteran's radiation dose estimate for his work on the Manhattan Project in Oak Ridge, Tennessee. The Board then directed the RO to obtain the Veteran's radiation dose estimate for his work on the Manhattan Project in Oak Ridge. In the June 2009 remand, the Board indicated that the RO did not comply with the July 2008 remand. The RO correctly sent a letter to the Defense Threat Reduction Agency (DTRA) in September 2008 requesting the Veteran's radiation dose estimate for his work on the Manhattan Project at Oak Ridge, Tennessee. DTRA responded in October 2008 with a letter in which it concluded that the information it had provided in August 2004 "remain[ed] current." DTRA did not address the appellant's contention that the Veteran had been exposed to ionizing radiation during active service while working on the Manhattan Project in Oak Ridge. DTRA also did not provide any information concerning the Veteran's radiation dose estimate for the time period he was working on the Manhattan Project in Oak Ridge. Thus, once again, the Board directed the RO to attempt to obtain a radiation dose estimate for the Veteran during the time he was assigned to, or had temporary duty at, Oak Ridge, Tennessee. Pursuant to the June 2009 remand, the RO sent a letter to the DTRA in December 2012 and once again requested the Veteran's radiation dose estimate for his work on the Manhattan Project at Oak Ridge, Tennessee. In the return response, dated in June 2013, the DTRA stated that their response dated in August 2004 that available Army records did not document the Veteran's participation in U.S. atmospheric testing (as defined by VA) remained current. The DTRA indicated that morning reports showed that as of April 30, 1945, the Veteran was assigned to the 9812th Technical Service Unit, Corps of Engineers (TSU-CE), Manhattan District, Oak Ridge, Tennessee. On an undetermined date, the Veteran was assigned to the 2nd Provisional Unit, 9812th TSU-CE, Manhattan District, Santa Fe, New Mexico. Morning reports from the 2nd Provisional Unit indicated that the Veteran was on furlough from that unit from September 19 to October 6, 1945. He remained assigned to duty there until November 28, 1945, when he was reassigned to the newly-organized Santa Fe Detachment 9812th TSU-CE, Manhattan District, at Santa Fe. The Veteran remained assigned to that unit until February 6, 1946, when he was transferred to Fort Bliss, Texas, for separation from active service. The DTRA suggested that the RO contact the Proponency Office for Preventive Medicine (POPM). The RO then sent the POPM a letter in July 2013 and requested the Veteran's radiation dose estimate for his work on the Manhattan Project at Oak Ridge, Tennessee. In the return response, dated in August 2013, the POPM noted that they had forwarded the request for a dose estimate (dose reconstruction) to the US Army Public Health Command. They notified the US Army Public Health Command of the Veteran's work in Oak Ridge, Tennessee. After reviewing their records, the US Army Public Health Command noted that they had accomplished a dose reconstruction for the Veteran in 2005, which was the up to 6 rem. The POPM reported that they considered the RO's request for information complete. In light of the above, there appears to be no change in the Veteran's radiation dose estimate of up to 6 rem, even when combining his work in New Mexico and Tennessee. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the appellant, and thus, no additional assistance or notification was required. The appellant has suffered no prejudice that would warrant a remand, and her procedural rights have not been abridged. See Bernard, supra. II. Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Certain chronic diseases, include malignant tumor (cancer), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). To establish service connection for the cause of the veteran's death, evidence must be presented which in some fashion links the fatal disease to a period of active service or an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. In short, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In addition, service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. The presumptively service-connected diseases specific to radiation-exposed veterans do not include prostate cancer; therefore, the Veteran may not be service-connected on this presumptive basis. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). The second method of service connection is found under 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed Veteran, or posterior subcapsular cataracts manifested 6 months or more after exposure, may be service connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. The list of radiogenic diseases includes prostate cancer. Id. When it has been determined that: (1) a Veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the VA Undersecretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the VA Undersecretary of Health. 38 C.F.R. § 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Regarding the third method of service connection, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran died in November 2002; a certificate of death provides that the cause of death was metastatic prostate cancer. At the time of the Veteran's death, service connection had not been established for any disability. The appellant contends that the Veteran's in-service ionizing radiation exposure while working on the Manhattan Project led to the prostate cancer which caused his death. In a May 2004 letter to the POPM, the RO requested verification of the Veteran's radiation exposure. The RO noted that the Veteran was an Army Engineer at Los Alamos atom bomb project. The POPM then forwarded the request to the DTRA. In a response letter, dated in August 2004, the DTRA stated that in 1945, the US Government conducted one atmospheric nuclear detonation, Operation TRINITY, from July 16 through August 6, 1945, at Alamogordo, New Mexico. Army records indicated that at the time of Operation TRINITY, the Veteran was assigned to the 2nd Provisional Unit, 9812th Technical Service Unit, Corps of Engineers, Manhattan Engineering District at Santa Fe, New Mexico, approximately 190 miles north of Alamogordo. Although records confirmed the Veteran's involvement with the Manhattan Project, neither unit morning reports nor available TRINITY historical documents indicated that he was sent to the TRINITY test site at Alamogordo, New Mexico. Personnel entry and access to the TRINITY ground zero area was well controlled during and following the test. Authorized personnel entering the immediate shot site, who had potential for radiation exposure, were issued film badges and registered in visitor logs. No film badges were found for the Veteran. Thus, the DTRA concluded that Army records did not document the Veteran's participation in US atmospheric nuclear testing. Although the DTRA concluded that the Veteran did not participate in Operation TRINITY, the Board notes that in a March 2005 letter from the Department of the Army, they concluded that it was likely that the Veteran was a participant of Operation TRINITY. The Department of the Army stated that the Veteran served at Los Alamos, New Mexico from 1945 to 1946, and that time period coincided with Operation TRINITY from July 16, 1945 to August 6, 1945. The Department of the Army also provided a dose estimate for the period beginning July 16, 1945 and ending February 6, 1946; the Veteran's radiation dose estimate was up to 6 rem. In June 2005, in accordance with 38 C.F.R. § 3.311(b), the VA Director of Compensation and Pension Service requested an opinion from the VA's Under Secretary for Health on the question of whether it was likely, unlikely, or as likely as not that the Veteran's prostate cancer resulted from exposure to radiation in service. It was noted that the Veteran was exposed to ionizing radiation during military service when he was 20 years old and that his dose estimate was up to 6 rem. He was first diagnosed with prostate cancer in 1994. No family history of cancer was indicated. In a Memorandum from the Chief Public Health and Environmental Hazards Officer, dated in July 2005, the Chief Public Health Officer recognized that it was estimated that the Veteran was exposed to a dose of ionizing radiation during military service of 6 rem. The sensitivity of the prostate to radiation carcinogenesis appeared to be relatively low and not clearly established. The Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was utilized to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's prostate cancer. In accordance with guidance on utilizing the NIOSH IREP, the cancer model for all male genitalia was used. The computer software calculated 99-percentile values for the probability of causation of 6.31% and 6.89% depending on whether the dose was entered as chronic or acute. In light of the above, the Chief Public Health Officer opined that it was unlikely that the Veteran's prostate cancer could be attributed to exposure to ionizing radiation in service. The Board finds that the Chief Public Health Officer's July 2005 opinion constitutes highly probative evidence against the appellant's claim. The figures cited by the Chief Public Health Officer, and the corresponding opinion that it was unlikely that the Veteran's prostate cancer could be attributed to exposure to ionizing radiation in service, clearly demonstrate that there is no reasonable possibility that the Veteran's prostate cancer resulted from radiation exposure in service. The Board notes that there is no medical evidence to the contrary of the opinion of the Chief Public Health Officer. With regard to the appellant's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issue on appeal is based on the contention that the Veteran's cause of death was related to his service, specifically, in-service exposure to radiation that caused him to develop prostate cancer. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether or not the Veteran's in-service radiation exposure caused or contributed to his death, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that the Veteran's death was caused or contributed to by his service. In October and November 2004 letters from the appellant, she stated that she lived and worked as a civilian with the Veteran in the Technical Area at Los Alamos. According to the appellant, there were frequent explosions on the mesa and those explosions could have been cancer-causing. However, she has not provided specific evidence showing that exposure to the claimed explosions caused the Veteran to develop prostate cancer. The Veteran's exposure to radiation during service has already been verified. The pertinent question in this case is whether such in-service exposure caused his fatal prostate cancer. As stated above, the Chief Public Health Officer has provided an opinion on the nexus question and has opined that it was unlikely that the Veteran's prostate cancer could be attributed to in-service radiation exposure. This is highly probative evidence against the appellant's claim and outweighs the appellant's contentions to the effect that the Veteran's death was caused by in-service exposure to radiation. In the November 2004 letter from the appellant, she stated that she had also been diagnosed with various forms of cancer. According to the appellant, both she and the Veteran had been told by their doctor that their cancers were probably caused by their "work on the atom bomb." However, she did not indicate what the rationale was for her doctor's opinion which diminishes the probative value of such opinion. See Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Hayes v. Brown, 5 Vet. App. 60, 69 (1993) ("[i]t is the responsibility of the BVA . . . to assess the credibility and weight to be given the evidence"). By contrast, the Board attaches significant probative value to the conclusion reached by the Chief Public Health Officer. The Board finds that this opinion is clearly based upon a review of the relevant evidence in the claims file and is supported by a clear rationale and scientific data. Regarding the third avenue of recovery, as noted above, the Court has determined that the Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation under Combee. However, the evidence does not show, and the appellant does not contend, that the Veteran's prostate cancer began during service, or was caused or aggravated by any incident of service other than exposure to ionizing radiation. The Board also notes that the Veteran was first diagnosed with prostate cancer in 1994, approximately 48 years after his discharge. 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 could be decisive. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed 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]; see also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) ["negative evidence" could be considered in weighing the evidence]. Moreover, there is an absence of a demonstration of continuity of symptomatology since service. Therefore, the Board finds that the appellant is not entitled to a grant of service connection on a non-presumptive direct incurrence basis for the cause of the Veteran's death. In sum, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since 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 the cause of the Veteran's death is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs