Citation Nr: 1702369 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 09-11 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant, MJ, JS ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to August 1991, he also had service in the Florida National Guard. The appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2007 the appellant testified before a Decision Review Officer (DRO) at the RO. In November 2010 she testified at a Travel Board hearing before the undersigned Veterans Law Judge. Transcripts of these hearings are associated with the claims file. The appellant's most recent authorized representative withdrew from representation of the appellant by a September 2016 letter. The appellant was sent a letter in December 2016 apprising her of this withdrawal of representation and affording her the opportunity to appoint a new representative. The appellant did not reply to this letter, and hence is unrepresented in the instant appeal. The Board remanded the appealed claim in March 2011 and again in August 2014 for development. It now returns to the Board for review. FINDINGS OF FACT 1. The Veteran's cause of death was metastatic adenocarcinoma of the lung. Other significant conditions contributing to death but not resulting in the underlying cause of death included seizures, left hemiparesis, and brain metastasis. 2. The Veteran's metastatic adenocarcinoma of the lung was diagnosed in late 2004 or early 2005, many years following service. 3. The most probative evidence indicates the Veteran's long-term heavy cigarette smoking caused the metastatic adenocarcinoma of the lung, and that his lung cancer was not related to service, to include toxic exposures therein. 4. The preponderance of the evidence is against a finding that the Veteran's service-connected fatigue materially contributed to the cause of the Veteran's death or otherwise hastened the onset of 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. §§ 1103, 1110, 1112, 1117, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.300(a), 3.303, 3.307, 3.309, 3.311, 3.312, 3.317 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by a letter in June 2011. This was sent following the Board's March 2011 remand in part to remedy deficiency in such notice. The Board now finds that the timing defect for such notice has been adequately remedied, with the appellant afforded ample opportunity to address and seek assistance in the development of her claim. The appellant has not alleged any deficiency in the notice provided. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant, including service treatment records, post-service treatment records, Social Security Administration (SSA) records, and VA examination reports. The appellant was afforded hearings before a DRO and before the Board, and copies of transcripts of these hearing are of record. There is no allegation that the hearings provided to the appellant were deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Board also notes that actions requested in the prior remands have been undertaken. Specifically, corrective VCAA notice was afforded the appellant, SSA records were received, other indicated records were sought, and VA medical opinions were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for the Cause of the Veteran's Death Dependency and Indemnity Compensation (DIC) may be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.5(a) (2016). A veteran's death may be service connected if the death resulted from a disability incurred or aggravated in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.303(a), 3.312 (2016). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2016). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b) (2016). A disability is a contributory cause of death if it contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312(c) (2016). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of 10 percent within one 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appellant contends, in effect, that exposures in service, including to certain chemical agents, caused or contributed to the metastatic adenocarcinoma of the lung which caused the Veteran's death, or that such exposures otherwise contributed to his death or hastened the onset of death. The in-service exposures in alleged include exposure to Chemical Agent Resistant Coating (CARC) paint in the course of work spray-paining vehicles, exposure to depleted uranium as a result of being near vehicles that had been destroyed, and exposure to effluents (particulates, fumes, smoke) from oil fires in Kuwait. A death certificate reflects that the Veteran died in December 2005. The immediate cause of death was metastatic cancer of the lung. Other significant conditions contributing to death but not resulting in the underlying cause included seizures, left hemiparesis, and brain metastasis. Lung cancer was first diagnosed in December 2004 or January 2005. Service records reflect that the Veteran was stationed in Saudi Arabia during the Persian Gulf War. Service treatment records include reported exposure while stationed in Saudi Arabia to oil, smoke, and sand. Service records also reflect the Veteran's complaints of a shortness of breath and cough since returning from the Persian Gulf War. During a July 1994 Persian Gulf War registry examination the Veteran stated that he applied CARC paint with a respirator mask most of the time. He reported painting during his second month in the Gulf and the rest of his time driving food trucks. He also reported being surrounded by smoke, presumably from oil well fires. He stated that drove by tanks that had been shelled by depleted uranium munitions and saw them smoking. However, he reported that he did not have contact with any shelled tanks and had no definite depleted uranium exposure to empty shells. He had a cough and shortness of breath subsequent to his stationing in Saudi Arabia. He reported a history of smoking cigarettes since 1977 or 1978. A military fact sheet is included with the Veteran's service medical records, informing of the potential health effects of exposure to CARC, due to its containing hexamethylene diisocyanate (HDI). Exposure to high concentrations of HDI when CARC was sprayed was known to cause immediate effects including irritation of the eyes, nose and throat, and with long-term exposure to potentially lead to or aggravate respiratory problems including asthma. However, the fact sheet did not relate any known association between CARC exposure and subsequent development of metastatic adenocarcinoma of the lung, nor did it more generally relate any known association between CARC exposure and subsequent development of any malignant neoplasm. A September 1994 letter from the Florida National Guard Adjutant General confirms that the Veteran's unit was ordered to paint coalition vehicles with CARC during Operation Desert Storm in South West Asia and was not given proper protective equipment. According to the letter, this resulted in the exposure to dangerous levels of HDI, an ingredient of CARC paint. The Veteran completed a Comprehensive Clinical Evaluation Program (CCEP) questionnaire/evaluation in September 1995, when he reported being exposed in service to smoke from oil fires, CARC, other paint and solvents and/or petrochemical substances, smoke or fumes from tent heaters, diesel and/or other petrochemical fuel, personal pesticide use including creams, sprays, or flea collars, the drug pyridostigmine used to protect against nerve agents, and ate food other than that provided by the armed forces. He then denied knowledge of exposure to depleted uranium. He also then reported currently smoking cigarettes and having smoked a pack of cigarettes per day for ten years. In December 1997, a Colonel in the Florida National Guard Medical Corps specializing in Occupational/Forensic Medicine, Dr. Pettyjohn, opined that it was far more likely than not that the majority of diagnoses made during the Comprehensive Clinical Evaluation Program (CCEP) process for the Veteran can be attributed to his service in the Persian Gulf War. He explained that soldiers in the Veteran's 325th Maintenance Company were exposed to CARC as well as a number of other chemical agents which could potentially affect the central and peripheral nervous system, the musculoskeletal system, the gastrointestinal system, and the immune system. The diagnoses associated with such exposures (not specifically referencing the Veteran) (based on toxicological/occupational medicine criteria) included accidental organophosphate poisoning, accidental carbamate poisoning accidental poisoning (unspecified), paint poisoning, paint fumes poisoning, fuels/toxic petroleum products poisoning fuels/solids poisoning, and fuels/vapors poisoning. The CCEP diagnoses for the Veteran included fatigue, mild orthostatic hypotension, allergic rhinitis, probable early obstructive lung disease, poor dentition, and mild osteoarthritis. The physician indicated that there was an occupational medical relationship between the probable early obstructive lung disease and the toxicological diagnoses. However, Dr. Pettyjohn did not note any association between the Veteran's likely in-service exposures to chemicals used including CARC as soldier in the 325th Maintenance Company, and subsequent development of cancer generally or lung cancer or metastatic adenocarcinoma of the lung in particular, with one exception. Dr. Pettyjohn did note, "Kuwaiti oil fire smoke, vapor, and particulates" could affect members of the 325th Maintenance Company, observing, "The most serious risk here would be from carcinogens, as well as pulmonary damage." Post-service records including treatment record in years leading up to the Veteran's death establish that the Veteran had long history of cigarette smoking. Post-service records fail to present any medical evidence, including any medical opinion evidence, supporting a causal link between the Veteran's claimed exposures and his development of metastatic adenocarcinoma of the lung many years later. The first VA treatment record indicating a possibility of lung cancer is a November 2004 chest x-ray on which a density in the left upper lung field is noted. The Veteran underwent further testing in December 2004, and biopsy in January 2005 identified adenocarcinoma of the lung. A December 2004 VA treatment record notes the Veteran's reported that he had been told he had a spot on his left lung in 1994 but no x-ray follow-up until 2004. That December 2004 record noted a 25+ pack/year smoking history, with the Veteran reporting that he currently smoked one to three cigars per day. This record and contemporaneous records indicated that he had then recently stopped smoking cigarettes. In a December 2004 VA cardiothoracic surgery follow-up, the physician was apparently asked to address the likelihood of an association between the Veteran's current conditions and service. The Veteran was then noted to have had a history of exposures in service between 1990 and 1991 while stationed in Saudi Arabia, including to CARC paint spraying vehicles, to dead animals, to dead people, to oilfield smoke, and to various insects. The physician observed that, based on his understanding of current VA guidelines for veterans who had served in the Persian Gulf region during the Veteran's service period, any condition "may possibly" be related to an exposure to "an unknown toxic waste or other environmental hazard" in such service. Regarding this statement, the Board notes that a "possible" connection or one based on "speculation" is too tenuous a basis on which to grant service connection. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "the veteran's death may or may not have been averted"). The reasonable doubt doctrine requires that there be a "substantial" doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102 (2016). The Veteran was afforded a VA respiratory examination in December 2004. Lung cancer was not noted at that examination. The Veteran complained of a chronic cough and chronic obstructive pulmonary disease (COPD) was addressed. The examiner noted that pulmonary function testing was performed in September 1995, and that findings then reflected moderate obstructive lung disease, with probable COPD. The Veteran reported worsening symptoms since 2000, including a cough that woke him from sleep. Pertinently, the Veteran was noted to have been smoking for approximately 23 years at a rate of one-and-on-half packs per day. No respiratory disease was then attributed to service. The examiner assessed allergic rhinitis, and chronic cough secondary to COPD. At a February 2005 VA Gulf War Registry examination the Veteran reported having ready tiredness and fatigue since returning from the Persian Gulf War, but the examiner noted that up until his January 2005 left upper lobectomy, he had been working five-and-a-half days per week as a welder for a trucking company. The examiner's diagnoses included unusual fatigue since his Gulf War service and adenocarcinoma of the lungs. The examiner did not associate the adenocarcinoma with service. In 2005 the Veteran submitted various news articles and literature addressing exposures in of Persian Gulf War soldiers, including from depleted uranium projectiles in exploded tanks, burning oil wells, and CARC. In May 2005 he submitted photographs of oil wells burning in the distance and closer photographs of destroyed tanks or other vehicles. The submitted news articles and literature do not ultimately serve to establish a causal link between the Veteran's in-service exposures and the metastatic adenocarcinoma of the lung which caused his death. The submitted photographs do tend to support the Veteran's distant proximity to burning oil wells, and some proximity to destroyed tanks or other vehicles. At her July 2007 DRO hearing, the appellant testified that the Veteran had informed her while he was in service of his exposures to paint in service and of its effects, including his eyes burning, difficulty breathing, and coughing. She testified to the Veteran's health being impaired upon his return from active service, in contrast to his physical fitness prior to deployment. At the hearing, the appellant's representative called attention to the early obstructive lung disease that was first detected in the 1990s. The appellant also testified to respiratory difficulties present as early as 1994, including the Veteran wheezing in his sleep and having shortness of breath. A VA medical opinion was obtained in April 2008. The examiner provided an initial opinion and reaffirmed this opinion following review of the record in May 2008. The examiner noted the Veteran's history of exposure to CARC paint in service as well as his history of years of heavy cigarette smoking, and opined that the Veteran's lung cancer was caused by his heavy cigarette smoking and not his in-service CARC exposure. The examiner explained that cigarette smoking was well known to cause lung cancer, and that medical literature and his expertise supported his opinion. At her November 2010 hearing before the undersigned, the appellant testified to other symptoms when the Veteran returned from Persian Gulf deployment, including his fingers twitching, headaches, impaired sleep, being tired all the time, a startle response, and weakness, including inability to pass a physical training test. She added that he also subsequently developed blurred vision, fainting spells, shaking, and nervousness. Also at the hearing, fellow veterans testified to their exposure to CARC paint performing painting duties similar to the Veteran's, and their exposure to depleted uranium from shelled tanks and smoke from burning oil wells, when they purportedly were also station in Southwest Asia during the Persian Gulf War. Another VA medical opinion was obtained in May 2011 based on review of the record, to address the likelihood that chemical exposure in service materially contributed to the Veteran's death. The examiner noted that the Veteran had been exposed to CARC as part of his service duties applying CARC to military vehicles, but concluded that it was not at least as likely as not that such exposure in service caused the lung cancer which in turn caused the Veteran's death. The examiner explained that based on review of the medical literature, there was "no known causal relationship" between chemical agent exposure, including particularly CARC exposure, and the Veteran's lung cancer, whereas the medical literature did support the conclusion that the Veteran's heavy smoking caused his lung cancer. The examiner added that such heavy smoking was "well known to cause lung cancer." In a November 2014 supplemental opinion letter based on review of the record, a physician noted that the Veteran's death certificate informed that the Veteran died of metastatic adenocarcinoma of the lung, with secondary neoplasms of the brain, spinal cord, and bone marrow. The examiner then opined that it was unlikely that exposure to depleted uranium in service, as a result of being around vehicles that had been destroyed by U.S. munitions, materially contributed to or hastened the onset of the Veteran's death. The examiner explained that the Veteran had a documented history of smoking two packs of cigarettes per day over many years, and that this smoking was a "most important and significant risk factor for development of this type of lung cancer." He further informed that while there were multiple "environmental and life-style" risk factors for developing lung cancer, cigarette smoking was the "primary risk factor [...] estimated to account for approximately 90 percent of all lung cancers." The examiner observed that the medical literature supported enhanced risk from smoking by other risk factors, which included extent of smoking, and exposure to other carcinogens, such as asbestos and ionizing radiation, radon, and chemical exposures including arsenic, chromium, and nickel. The examiner did not identify medical literature supporting exposure to CARC as a risk factor enhancing the risk from cigarette smoking. Thus, while the appellant has contended, in effect, that the Veteran's exposures in service caused or contributed to his development of the lung cancer which caused his death, VA medical opinions have contrarily concluded that the Veteran's cigarette smoking was the most likely cause of the metastatic adenocarcinoma of the lung that caused his death, and that his in-service exposures were unlikely to have caused or materially contributed to or otherwise hastened the onset of death. Moreover, while the Veteran alleged exposure to depleted uranium in his 2003 claim, the Board finds such assertion is not persuasive in light of his prior denial on a Persian Gulf Registry examination in 1994 that although he drove past shelled tanks, he did not have contact with any shelled tanks and had no definite depleted uranium exposure to empty shells. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) ( conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). The appellant has not presented competent medical opinion evidence indicating the Veteran's lung cancer was related to service or that his death was otherwise related to service. While the Board accepts the sincerity of the appellant's belief that exposures in service caused or contributed to the Veteran's death, such questions of causation are distinctly medical ones beyond the ambit of lay knowledge. The appellant has not been shown to possess the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of cancer are matters not capable of lay observation, and require medical expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his death is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, neither the opinions by the appellant over the course of her claim nor those expressed by the Veteran prior to his death regarding the etiology of his metastatic adenocarcinoma of the lung are competent medical evidence. The Board finds the opinions of the VA examiners to be significantly more probative than the lay assertions. The Board has also considered the Veteran's report during VA treatment in December 2004 that an x-ray in 1994 also noted a spot on his left lung that was not followed-up. Such a 1994 medical report has not been discovered in the course of records development. Further, there is no medical evidence to support a link between this reported spot and the cancer discovered a decade later, or between the reported spot and the Veteran's service over three years earlier. Thus, the Board finds this reported history ultimately not to be supportive of any causal link between service and the metastatic adenocarcinoma of the lung causative of the Veteran's death. The Board acknowledges Dr. Pettyjohn's December 1997 report identifying the exposures to smoke, fumes, and particulates of Kuwaiti oil fires as potential carcinogens. However, the VA opinions in April 2008 (reaffirmed following records review in May 2008), May 2011, and November 2014 are to the effect that the Veteran's heavy cigarette smoking over many years was far more likely to be the cause of the metastatic adenocarcinoma of the lung causative of his death than in-service exposures. These VA opinions were specific to the Veteran's case, were provided following record review, and provided adequate rationale for the conclusions reached. Accordingly, they are afforded great probative weight. Conversely, Dr. Pettyjohn's report provided generalities with regard to carcinogens rather than facts and conclusions specific to the Veteran's cancer or death, and did not consider the Veteran's significant smoking history. Accordingly, this report is afforded little, if any, probative weight regarding the cause of the Veteran's death. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). While the November 2014 VA examiner did note that other risk factors including exposure to other carcinogens potentially enhanced the risk of lung cancer from smoking, the examiner reviewed the record of the Veteran inclusive of exposures in service, and did not identify the particulates, fumes, or smoke from oil fires as likely resulting in enhanced risk in the Veteran's case. Instead, the examiner emphasizing the Veteran's heavy smoking history and noted such heavy smoking as itself an enhancing risk factor, which he identified as the singular "important and significant risk factor" for the Veteran's lung cancer, as for all lung cancers. Similarly, notwithstanding Dr. Pettyjohn's identification in his December 1997 report of Kuwaiti oil fires risks including the risk of carcinogens exposure as the most serious of these, Dr. Pettyjohn did not identify a likelihood that cancer would result from the level of exposure to oil fires of soldiers in the Veteran's 325th Maintenance Company, but rather, as already noted, emphasizing the risks and effects of CARC paint exposure, with known significant exposure and known risks of such exposure, which did not include lung cancer. Moreover, to the extent a link between service and the Veteran's death might be considered on the basis of tobacco use, current law prohibits service connection on that basis. 38 U.S.C.A. § 1103 (West 2014); 38 C.F.R. § 3.300(a) (2016). The Board further notes that during his lifetime, the Veteran was service connected for fatigue (claimed as fatigue, memory loss, lethargy, and sleep disorder), with a noncompensable rating assigned from July 23, 2003, until his death. He was not service connected for any other disorders or disabilities. There is no indication from the evidence of record that this service-connected fatigue materially contributed to the cause of the Veteran's death or otherwise hastened the onset of death, and hence the preponderance of the evidence against service connection for the cause of death based on fatigue. 38 C.F.R. §§ 3.303, 3.312. Because the metastatic adenocarcinoma of the lung that caused the Veteran's death was not shown to be present until many years following service, service connection on a presumptive basis as a chronic condition is also not warranted. 38 C.F.R. §§ 3.307, 3.309(a), 3.312. Finally, the Veteran's metastatic adenocarcinoma of the lung was plainly not an undiagnosed illness, as the diagnosis was well-established by pathologic analysis of biopsied tissue. It is does not meet the other criteria of 38 C.F.R. § 3.317 as a medically unexplained multisymptom illness or a diagnosed illness recognized by the Secretary as warranting the presumption. There is also no indication of other disability implicated as potentially service-connected pursuant to 38 C.F.R. § 3.317 which is also implicated as having materially contributed to the cause of the Veteran's death or otherwise hastened the onset of death. Having carefully reviewed and weighed the evidence of record, the Board concludes that the most probative evidence is against the claim, and service connection for the cause of the Veteran's death is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs