Citation Nr: 1328573 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 07-30 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, 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 T. Wishard, Counsel INTRODUCTION The Veteran had active military service from May 1966 to February 1970. The Veteran died in November 2003. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Diego, California. In its January 2010 decision, the Board denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. The Board specifically noted that the evidence did not support a finding that the Veteran's death was caused by active service, to include exposure to asbestos, ionizing radiation, and herbicide. The appellant appealed, to the U.S. Court of Appeals for Veterans Claims (Court), only that portion of the Board's decision which found that a preponderance of the evidence did not show that the Veteran's lung cancer was due to exposure to asbestos in service. In its July 2011 memorandum decision, the Court stated that the appellant had not challenged the Board's findings regarding other potentially service-related causes of death and thus, the appellant has abandoned such arguments. This matter was most recently before the Board in May 2013 when it was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran's death certificate reflects that he died in November 2003. The immediate cause of death was listed as metastatic lung cancer with no significant contributing conditions. 2. At the time of the Veteran's death, he was not service connected for any disabilities. 3. The competent credible clinical evidence of record is against a finding that the Veteran's lung cancer was causally related to, or aggravated by, active service, to include exposure to asbestos. 4. The Veteran did not have a service-connected disability as either the principal or as a contributory cause of his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Hupp v. Nicholson, 21 Vet. App. 342 (2007). Notice was provided in December 2005, March 2009, and July 2009 and the case was readjudicated, most recently in a June 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has a duty to assist the appellant in the development of the claim. The claims file includes service treatment records (STRs), service personnel records, written articles, VA and private medical records and correspondence, and the statements of the appellant in support of the claim. The Board has considered the statements and perused 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 duty to obtain. 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 an adequate VA opinion is of record because the June 2013 VA clinical opinion is based on a review of the Veteran's service treatment records, service personnel records, and the Veteran's medical history. Adequate rationale has been provided. The appellant contends that the Veteran was exposed to asbestos in service. The Veteran's service personnel records are negative for any asbestos exposure; however, they do reflect that he served on the USS Wahoo while it was undergoing overhauling. In a July 2011 decision, the Court held that there was no evidence that VA attempted to obtain evidence from the Navy, regarding the Veteran's possible exposure to asbestos in service, using the procedures applicable to "unusual cases" noted in a May 2002 VA memorandum on asbestos-related claims. The claims file includes a March 2013 Appeals Management Center (AMC) memorandum. It reflects that the May 2002 VA Memorandum noting "unusual cases" is outdated and no longer in effect. This finding was based on communication with the Navy Seas Systems Command Center. There is no evidence of record that the VA still has special procedures in "unusual cases." The Board finds that there have been sufficient attempts to assist the appellant in her claim. The claims file includes the Veteran's service personnel records which reflect his service, and information on the USS Wahoo while the Veteran served on it. There is no indication that further attempts would provide evidence to support the appellant's contention. In addition, despite a lack of objective evidence of exposure, the June 2013 VA clinician considered, when rendering an opinion, that the Veteran had asbestos exposure on the USS Wahoo while he was aboard during overhauling; thus, the appellant has not been prejudiced. 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 the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases 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 were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). 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). Service-connection for asbestos-related diseases The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. The VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, provides for guidelines for considering asbestos compensation claims. The M21-1 MR provides the following non-exclusive list of asbestos- related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). Analysis The Board has reviewed all of the evidence in the claims file. 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 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. The appellant is claiming entitlement to service connection for the cause of the Veteran's death. As noted above, the issue on appeal is limited to whether the Veteran's lung cancer, the cause of his death, was causally related to, or aggravated by, active service exposure to asbestos. The appellant has abandoned the other initially raised theories as to the Veteran's cause of death. (See July 2011 Court memorandum decision.) The Veteran died in November 2003. The immediate cause of death was listed as metastatic lung cancer with no significant contributing conditions. The interval between onset and death was noted to be years. A review of the Veteran's private treatment records prior to his death shows that he was first diagnosed with lung cancer in approximately November 2002, more than 32 years after separation from service. During the Veteran's lifetime, service connection was not in effect for any disability. A December 2002 private record reflects that the Veteran was seen with markedly abnormal chest pain and chest x-ray and CT scan suggestive of advanced right lower lobe carcinoma of the lung. He had a two month history of pulmonary symptoms - nonproductive cough, exertional dyspnea, and chest tightness. He was also noted to have anorexia and a 25 pound weight loss for the past several months. The record reflects that the Veteran smoked a pipe from about the age of 20 to 35, but "never cigarettes." A Tri-City Medical Center record dated in June 2003 reflects that there was no history of smoking. Medical correspondence from Oncology Therapies, dated in August 2003, reflects that the Veteran reported that he had quit smoking 20 years earlier, or approximately 1983 at age 39. Additional records reflect that the Veteran reported that he had smoked "briefly many years ago." The Board notes that a January 1970 STR reflects that the Veteran had discontinued cigarettes; thus, the evidence reflects that he had smoked cigarettes at one point. The Board finds that there is competent evidence that the Veteran smoked both cigarettes and pipes. The 2013 VA clinician's opinion, noted below, is based, in part, on the Veteran's history of tobacco smoking which was noted to exceed the Veteran's three year history aboard the USS Wahoo. Even if the Veteran only smoked a pipe, and not considering any cigarette history, his reported history of pipe smoking for 15 years still exceeds his three years aboard the USS Wahoo, and his total length of service of four years. A review of the Veteran's personnel records shows that the Veteran served aboard the USS Wahoo from March 1967 to February 1970. Service personnel records are negative for any findings indicating that the Veteran was exposed to asbestos. A Transfers and Receipts record reflects that the Veteran reported to the USS Wahoo on March 30, 1967. A Report of Enlisted Performance Evaluation for the period from May 1968 to November 1968 reflects that the Veteran's assigned tasks aboard the USS Wahoo were "leading storekeeping and nuclear weapons storekeeper" responsible for requisitioning, receipt, transfer, and stowage of all general stores and nuclear weapons material. Reports of Enlisted Performance Evaluation for the periods November 1968 to May 1969, May 1969 to November 1969, and November 1969 to February 1970, reflect that the Veteran had been the leading storekeeper and nuclear weapons storekeeper aboard the USS Wahoo. It was noted that he was responsible for the procurement, storage, issue, transfer, and accounting of equipment, repair parts, consumable supplies and Nuclear Weapons Material. A VA Memorandum entitled "Asbestos Claims" and dated in May 2002 shows that a military occupational specialty of storekeeper had a very minimal risk for asbestos exposure. The claims file includes copies of internet articles on the USS Wahoo. They indicate that from approximately August 1966 to June 1968, the USS Wahoo "began an extended period of operations in the islands, broken by a major overhaul of 17 months duration. That overhaul included radical modifications to her hull structure during which she was lengthened by 15 feet." The Veteran served approximately 15 months during which the USS Wahoo underwent some periods of overhauling. The claims file also includes an article on an individual, not the Veteran, who had served on the USS Nautilus (not the USS Wahoo) and died from asbestosis. The article quotes a "Dr. Mark Cullen of Yale" as stating that "even without asbestosis, asbestos causes lung cancer and the more you are exposed the more you are at risk." The article was apparently based on a study of 4,000 participants exposed to asbestos, of which 7 percent died of lung cancer. The article does not address the length of time the participants smoked, the length of exposure to asbestos, or the length of time between exposure and diagnosis. The article also states that "[i]n some cases, the asbestos fibers can become carcinogenic." An article entitled "Work-Related Lung Disease Surveillance Report," dated in October 1996, states, in part, that "[h]uman occupational exposures to all commercial asbestos fiber types, both individually and in various combinations, have been associated with high rates of asbestosis, lung cancer, and mesothelioma. While significant excess of cancer of several other sites have been observed in exposed workers, presently available information is insufficient to determine the role of specific fiber types." The article notes that "ship and boat building and repairs" is one of the mostly frequently recorded industries on death certificates in selected states. It does not list which states, and refers to building and repair of ships, not necessarily mere presence on a ship which is being rebuilt. Assuming, arguendo, that the articles rise to the level of a medical article or medical treatise, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In short, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given veteran's claim. In the present case, the articles are not combined with a positive nexus opinion of a medical professional specific to the Veteran's history and relating his lung cancer to service. In connection with this claim, the appellant submitted a July 2006 statement from the Veteran's treating physician, Dr. S.G.E., wherein Dr. S.G.E. noted that the Veteran's history was positive for asbestos exposure during service and there was an increased risk of lung cancer associated with asbestos and exposure to tobacco smoke. He stated that the "risk of lung cancer associated with asbestos exposure is dose-dependent but varies according to the type of asbestos fiber. In particular, for a given level of exposure, the risk appears to be considerably higher for workers exposed to amphibole fibers than for those exposed to chrysotile fibers." He noted that the risk of lung cancer associated with combined exposure to asbestos and cigarette smoke appears multiplicative. The physician cited to a report that the risk of dying of lung cancer in asbestos workers increased 16 fold if they smoked more than 20 cigarettes per day and 9 fold if they smoked fewer than 20 cigarettes per day, compared to asbestos workers without a regular smoking history. The examiner also stated that "for any given individual, the relative risk depends upon the magnitude of the exposure both to cigarette smoke and to asbestos. Workers with asbestosis are at greater risk, although it is unclear if this is because asbestosis is a marker for heavier exposure of if the inflammatory process is important per se in triggering or promoting carcinogenesis." Notably, Dr. S.G.E. did not provide an opinion with regard to the Veteran's case. Generic medical literature, which does not apply medical principles regarding causation or etiology to the facts of an individual case, does not provide competent evidence to satisfy the nexus element for an award of service connection. See Sacks v. West, 11 Vet. App. 314 (1998). In addition, Dr. S.G.E. did not provide any evidence as to what degree of "positive exposure" the Veteran had in terms of working as a storekeeper on a ship or his presence during reconstruction. As noted above, Dr. S.G.E. stated that "the relative risk depends upon the magnitude of the exposure both to cigarette smoke and to asbestos." Dr. S.G.E.'s statements, which merely reflect "positive exposure" without a discussion of the length or amount, lack probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). This case was referred to a VA physician for a medical opinion in June 2007. The VA physician noted the Veteran's history of tobacco and his alleged exposure to asbestos during military service and indicated that these events were risk factors for the development of lung cancer. The examiner also reviewed a chest X-ray and computed tomography (CT) reports conducted prior to the Veteran's death and noted that there was no mention of pleural calcifications to confirm asbestos exposure, nor was there mention of findings compatible with asbestosis to support a diagnosis of asbestosis. The examiner noted that the Veteran was a storekeeper in the Navy and indicated that those duties would have minimal exposure to asbestos. The examiner also noted that if the Veteran was exposed to asbestos during his military service there is no evidence of that exposure on the Veteran's chest X-ray or CT scans. The examiner indicated that although the Veteran may have been exposed to asbestos during his military service, there was no objective evidence to support this. Therefore, the examiner concluded that he could not resolve the issue of whether asbestos was contributory to the development of his lung cancer without resorting to mere speculation. The Board remanded the claim in May 2013 to obtain a medical opinion addressing the question raised by Dr. S.G.E.'s opinion; that is, the relationship between exposure to asbestos and lung cancer, not necessarily asbestosis. In a June 2013 opinion, the clinician stated that the Veteran's exposure to asbestos less likely than not contributed to his lung cancer. The clinician stated, in part, as follows: As a Leading Storekeeper, and Nuclear Weapons Storekeeper, he was responsible for ordering receiving, transferring, and storing of goods and nuclear weapons materials. He would not have been involved in demolition or building of the vessel, which would have exposed him to more than minimal asbestos exposure. There is no objective evidence of him having had significant asbestos exposure, such as pleural plaques. i) He was in the service for less than 4 years, which is not a long duration with respect to asbestos exposure, even if he were to have had more than minimal asbestos exposure. His theoretic exposure would have been 3 years, between entry and end of the reconstruction. His occupation in the service, as well as the duration of service, and absence of objective findings such as pleural plaques, do not suggest that he had more than minimal asbestos exposure. ii) The history of smoking is significant. Smoking tobacco is the primary cause of lung cancer. Asbestos exposure is a weaker risk factor for lung cancer than tobacco smoking. He also smoked cigars, which is also a cause of lung cancer. By history, he smoked tobacco for 10 years, then quit, and later smoked cigars for 15 years. His exposure to tobacco and/or cigars was longer than any theoretical exposure to asbestos. Tobacco smoking is a stronger risk factor than asbestos for lung cancer, when the two are considered separately. Even if he had had significant exposure to asbestos during the 3 years of reconstruction, his smoking would still have likely been the more likely cause, and main cause of his lung cancer, because he had more years of tobacco exposure, and because tobacco is a stronger risk factor for lung cancer than asbestos. iii) Significant asbestos exposure can cause lung cancer in the absence of asbestosis. iv) The lack of a diagnosis of asbestosis, as well as lack of pleural plaque means that there is no objective evidence of significant asbestos exposure. It means we are left to deduce his theoretical asbestos exposure by other means, such as looking at his occupational and work history, work description, and areas he physically worked in and for what duration, and whether there was asbestos in his environment during the time he worked in those environments. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) The Board finds that the 2013 VA medical opinion is the most probative opinion of record. The clinician based the opinion on the Veteran's service history, medical history, and history of smoking. The clinician considered the Veteran's entire service on the USS Wahoo, to include during reconstruction. Importantly, the 2013 VA report, as opposed to Dr. S.G.E.'s statement of studies, provides an actual opinion specific to the Veteran. The Veteran's STRs are negative for any complaints of, or treatment for, lung cancer. The earliest clinical evidence of lung cancer was in approximately November 2002, more than 32 years after separation from service. The most probative clinical opinion is against a finding that the Veteran's death was due to exposure to asbestos in service. There is no competent clinical opinion which provides a nexus between the Veteran's death and active service. 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, lung cancer falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The appellant has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. As such, her opinion does not constitute competent medical evidence and lack probative value. In sum, the Board finds that there is no objective evidence, such as pleural plaques, to show that the Veteran had exposure to asbestos in service. Even if the Veteran had more than minimal exposure due to service aboard a ship, to include during reconstruction, this exposure was considered by the VA physician in rendering the June 2013 opinion. Moreover there is no competent clinical opinion that the Veteran's death was caused by, or aggravated by service, to include asbestos exposure. The opinion of the VA physician is that, even with significant asbestos exposure during service, the Veteran's tobacco use was the more likely cause of his lung cancer. Dr. S.G.E. has not opined that the Veteran's lung cancer was causally related to, or aggravated by, service. As noted above, the Veteran was diagnosed with lung cancer in approximately 2002. The appellant filed a claim for service connection for cause of the Veteran's death in 2005. Thus, service connection is not warranted under 38 C.F.R. § 3.300 (2012) (service connection will not be considered for disability related to tobacco products for claims filed after June 9, 1998). The Board appreciates the Veteran's service and is also sympathetic to the appellant's situation as a widow; however, the Board is bound in its decisions by the statutes enacted by the Congress of the United States and VA regulations issued to implement those laws. See 38 U.S.C.A. § 7104(c). See, generally, Owings v. Brown, 8 Vet. App. 17, 23 (1995). The preponderance of the evidence is against this claim; thus, the claim for service connection for the cause of the Veteran's death must be denied. See 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. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs