Citation Nr: 1753064 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 11-07 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for lung cancer, to include as due to exposure to herbicides, for purposes of accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to October 1952 and from April 1953 to May 1976. He died in August 2008, and the appellant claims as the surviving spouse. These matters initially came before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The appellant testified at a hearing conducted by the undersigned Veterans Law Judge in March 2014; a copy of the transcript is of record. In November 2015, the Board issued a decision denying service connection for lung cancer, to include as due to exposure to herbicides, and service connection for the cause of the Veteran's death, to include as due to exposure to herbicides. The appellant then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In an order of June 2016, the Court approved a joint motion for remand (Joint Motion) by the parties. In accordance with the Joint Motion, the Court vacated the Board's November 2015 decision and remanded the issues of entitlement to a) service connection for lung cancer, for purposes of accrued benefits and b) service connection for the cause of death of Appellant's husband (the Veteran), both to include as due to herbicide exposure. Subsequent to the June 2016 JMR, the Board again remanded these matters in November 2016. There has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran was not exposed to Agent Orange during his service in Thailand, to include through his duties maintaining airplanes. 2. The Veteran has not been shown to have been exposed to Agent Orange during service. 3. The Veteran died in August 2008. The immediate cause of death was metastatic lung cancer. 4. At the time of death, the Veteran was not service connected for any disability. 5. Lung cancer was not manifest during service or for many years thereafter and is not related to service. 6. The Veteran's cause of death was unrelated to service or a service connected disability. CONCLUSIONS OF LAW 1. Lung cancer was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1116, 5103, 5103A, 5107, 5121 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.100 (2017). 2. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to death. 38 U.S.C. §§ 101(16), 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Compliance with Stegall As noted in the Introduction, the Board remanded these matters in November 2016. With respect to the issues decided, the Board instructed the RO to take all steps required by the M21-1MR with regard to claims such as this one, involving claimed exposure to Agent Orange in Thailand during the Vietnam Era, refer the appellant's allegations of exposure to herbicides to the U.S. Joint Services Records Research Center (JSRRC) for verification with respect to both of the Veteran's Thailand tours of duty, and readjudicate the claim. The claims file received an appropriate response from the JSRRC in June 2017, and the RO readjudicated the claim most recently in a July 2017 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been substantial compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Additionally, the appellant was afforded a Board hearing in March 2014. During the hearing, the issues were clarified, the legal concepts were explained and there was inquiry as to outstanding evidence. Furthermore, the submission of additional evidence was suggested. The actions of the Veterans Law Judge comply with 38 C.F.R. § 3.103. Neither the Appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Factual Background The Veteran's death certificate reflects that he died in August 2008 with the primary cause of death listed as metastatic lung cancer. The total interval between onset and death was noted to be 19 months. No other underlying or contributing causes were listed. In a statement submitted prior to his death, the Veteran reported that he was on board U.S. aircraft that flew over Vietnam. He reported that he was stationed in Thailand from 1966 to 1967 and from 1973 to 1974. He indicated that he had to fly missions over Vietnam, sometimes twice a day, and that he had to service these same aircrafts that had been exposed to Agent Orange. See August 2007 Statement in Support of a Claim. The Veteran's service treatment records reflect no complaint, finding, or diagnosis with respect to lung cancer. While the Veteran was seen for complaints related to acute colds, upper respiratory infection, and bronchitis during service, there is no indication of a chronic respiratory disability related to lung cancer. A slight left ventricular prominence and otherwise essentially negative chest was noted on July 1969 flying examination. Other various periodic examinations disclose no abnormalities with respect to the lungs and chest. A January 1976 separation examination notes that the lungs and chest were normal, and a chest x-ray was normal. On report of medical history at that time, he denied shortness of breath, pain or pressure in the chest, and chronic cough. Private treatment records note that the Veteran was a significant consumer of tobacco products, having employed an estimated one-third to one-half pack of cigarettes daily plus two cigars daily for a period of 45 years. He quit tobacco consumption around 1989. See January 2007 private treatment records. Post-service VA treatment records include a June 2001 chest x-ray report noting that the Veteran had a history of smoking. Clinically, the chest was clear. The x-ray revealed mild accentuation of interstitial markings in both lung fields of a non-specific nature. Cardiomediastinal silhouette was unremarkable. The bones and soft tissues are unremarkable for patient's age. There was no evidence for active cardiopulmonary disease. Private treatment reports from St. Agnes Medical Center reflect that a June 2006 annual chest x-ray revealed a mass in the left lung located centrally. He claimed to have been asymptomatic at that time. CT scan of the thorax and upper abdomen performed in October 2006 revealed a left hilar mass measuring 3.1 by 3.9 by 2.9 centimeters. There was no associated adenopathy in the hilar or mediastinal regions and no pleural effusions. The Veteran began radiation treatment in November 2006 with a diagnosis of small cell carcinoma of the lungs. A physician from the Hematology Oncology Medical Group of Fresno indicated that the Veteran was originally seen in November 2006 for diagnosis of small cell lung cancer. He started chemotherapy and initially had excellent response. He relapsed again in October 2007 and again in April 2008. In May 2008, he was treated with third line chemotherapy, which failed. In July 2008, he was started back on treatment and but became very anemic and complained of severe weakness, fatigue, and right upper quadrant pain. He was hospitalized at the end of July 2008 and died approximately one month later. See October 2011 private treatment record. In July 2008, the Veteran was admitted with a diagnosis of metastatic lung cancer. By way of history, the treating physician indicated that the Veteran presented two years prior with disease confined to the chest. He was treated with chemotherapy and radiation but then was soon afterwards noted to have disease progression. He had been on and off several different types of systemic chemotherapy. He had progressive weakness and fatigue, and at the time he was admitted was profoundly week, unable to ambulate, and was having severe tachypnea. An impression of advanced stage IV metastatic lung cancer was noted. He received palliative care until his death in August 2008. In a February 2010 report, a private physician, Dr. S., wrote that the Veteran had been under his care since 1992 until his death in 2008. He had been treated for diabetes type II, hyperlipidemia, left shoulder degenerative joint disease, renal cysts, gastroesophageal reflux disease, and enlarged thyroid nodules. In addition, the Veteran had a history of heavy smoking and moderately severe COPD and asthma controlled with medications and smoking cessation. In October 2006, he was diagnosed with carcinomas of the upper left lobe. He underwent chemoradiation therapy to the left upper lobe and left hilium and intracranial radiation. Dr. S. further noted that the Veteran had a history of exposure to Agent Orange and other chemicals during the war. In her October 2010 notice of disagreement, the appellant expressed that while the Veteran was not in country in Vietnam, he serviced airplanes that transported and dropped Agent Orange, and was therefore still exposed to Agent Orange. She also noted that the airplanes that sprayed Agent Orange were serviced at his base. An October 2011 statement from a fellow service member reflects that he had known the Veteran since 1977. He had served in Vietnam from 1968 to 1969 and also served in Thailand. He expressed that air crew and mechanics flying the areas or working in aircraft deployed in these areas, as the Veteran did, were certainly exposed to Agent Orange. He opined that the Veteran was exposed to Agent Orange through missions into Vietnam and working on aircraft that flew in contaminated areas. During the appellant's March 2014 Board hearing, the appellant testified that her husband served on Thailand as a mechanic and served missions over Vietnam. He came back and re-serviced his plane and worked out the aircraft as a mechanic. She alleges that he handled contaminated plane parts, or served near the perimeter of the base in Thailand. She emphasized that Dr. S. noted a history of Agent Orange exposure, and that he had other disabilities indicated to be associated with Agent Orange exposure, such as diabetes. III. Exposure to Herbicides At the outset, the Board will address the theories of presumptive service connection sought in connection with the claim on appeal. The appellant contends that service connection for lung cancer, for accrued benefits purposes, is warranted, and also that service connection for the Veteran's cause of death is warranted because she his lung cancer was due to in-service exposure to Agent Orange. If a Veteran was exposed to Agent Orange during service, certain listed diseases, are presumptively service-connected. 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116(f). Thus, if the Veteran "served in the Republic of Vietnam" as that term is defined in the applicable regulation, service connection for respiratory cancer, to include lung cancer, would be warranted. However, the Veteran is not eligible for service connection based on herbicide exposure because he did not serve in Vietnam as that term is defined in 38 C.F.R. § 3.307(a)(6)(iii). There is nothing in the service personnel records to indicate that the Veteran set foot in Vietnam. Moreover, although competent to state that he did in fact set foot in Vietnam, the Veteran did not do so prior to his death. While the appellant notes on some occasions that the Veteran flew "into" Vietnam, on other occasions she denies service in Vietnam and reports that he flew missions "over" Vietnam. There is no credible and probative evidence in the record to support the assertion that the Veteran served in Vietnam. In sum, the preponderance of the evidence is against a finding of actual service in Vietnam. In this case, the appellant mainly contends that the Veteran was exposed to Agent Orange during his service in Thailand. In the alternative, the appellant contends that he flew plane missions over Vietnam and had direct contact with planes parts that had been exposed to Agent Orange. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR); Compensation and Pension Bulletin, May 2010. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled, "Project CHECO Southeast Asia Report: Base Defense in Thailand." Id. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. Id. This allows for presumptive service connection of the diseases associated with herbicide exposure. Id. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Id. If a Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. Id. This applies to Veterans who served during the Vietnam era, which spans from February 28, 1961 to May 7, 1975. Id. Personnel records from the Veteran's period of service in Thailand indicated that he was stationed at U-Tapao Airfield from 1967 to 1968 and from 1973 to 1974. Performance evaluations note that he first served as a shift chief responsible for all maintenance performed on aircraft including, preflight inspections, launches, recovery, ground handling, servicing, coordinating and scheduling specialists, as well as assuring safety policies were adhered to during all maintenance operations. He then served as air chief responsible for all maintenance actions for his bomber flight, controlled all supervisory actions relative to maintenance performed on his assigned aircraft, and coordinated the actions of all personnel correspondence, appointment, training, and was the prime liaison between the bomber team and supervision. A Memorandum for the Record prepared by VA Compensation and Pension Services reflects that while a review of Project CHECO Southeast Asia Report: Base Defense in Thailand Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a Veteran's MOS or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. However, as noted above, there are no records to show that the same tactical herbicides used in Vietnam were used in Thailand. Moreover, the Compensation and Pension Services Memorandum notes that, in Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND or by helicopters under the control of the U.S. Army Chemical Corps. Base Civil Engineers were not permitted to purchase or apply tactical herbicides. There are no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from August 30 through September 16, 1963 and from 14 -17 October 1966. The 1966 missions involved the spraying of malathion insecticide for the "control of malaria carrying mosquitoes." These facts are not sufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. In addition, the Memorandum emphasizes that, if the claim of exposure is based on servicing or working on aircraft that flew bombing missions over Vietnam, there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. Also, there are no studies showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. This memorandum weighs heavily against the Veteran's assertions of possible herbicide exposure. The case was also referred to the Joint Services Records Research Center (JSRRC) to request verification of exposure to herbicides or to make a formal finding that sufficient information required to verify herbicide exposure did not exist on two separate occasions. A November 2014 Local JSRRC Formal Finding, indicated that the evidence of record shows that the Veteran was assigned to the 307th Strategic Wing, U-Tapao Airfield Thailand from September 1973 to September 1974 as a team chief of a bomber branch. The finding indicated that the JSRRC could not document or verify that a veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The finding noted that the Veteran was an Aircraft Maintenance Superintendent and not in a MOS such as security policeman, security patrol dog handler, member of the security police squadron, or otherwise put him near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence. Therefore, the coordinator concluded that the appellant's claim that the Veteran was exposed to Agent Orange based on his service at U-Tapao Airfield, Thailand, could not be confirmed by the evidence of record or records available by the Department of Defense or JSRRC. Pursuant to the November 2016 Board remand, the appellant's allegations that the Veteran was exposed to herbicides during his service in Thailand was again referred to the JSRRC for verification. More specifically, the November 2016 remand asked the JSRRC to address the appellant's contentions that the Veteran was exposed to herbicides by virtue of servicing contaminated aircraft. A June 2017 JSRRC memorandum stated that the Veteran's military personnel records and service treatment records were reviewed and no credible evidence was identified to support the claim of exposure to Agent Orange in Thailand or any other location where Agent Orange was used. The JSRRC determined that the appellant's claims that the Veteran was exposed to Agent Orange in Thailand at U-Tapao Airfield while serving as a B-52 Bomber aircraft maintenance technician and then as an aircraft maintenance superintendent were not conceded. The memorandum stated that while the Veteran served in Thailand from 1967 to 1968 and then again from 1973 to 1974, the Veteran's records did not reflect any service on or near the perimeter fence of the airbase. Instead, the Veteran's records reflected that he worked on B-52 Bombers, and there is no provision or regulation from the Department of Defense or VA stating Agent Orange exposure is conceded as described by the Veteran or the appellant. Additionally, the Veteran's records did not reflect he worked on or was near the C-123Aircraft described in IV.ii.1.H.3.a. Therefore, the internal JSRRC was unable to corroborate the Veteran's claimed Agent Orange exposure in Thailand or any other location. The Board has considered whether the Veteran was exposed to Agent Orange through servicing and maintaining planes that sprayed Agent Orange or flew into Vietnam, but notes the highly probative June 2017 JSRRC memorandum, which determined that Agent Orange exposure could not be conceded on that basis. Additionally, there is nothing in the record to indicate that the Veteran directly observed anything that indicated that any piece of equipment or airplane he handled had been exposed to herbicide. The Board finds that although the Veteran served at U-Tapao during the Vietnam era, his MOS was in aircraft maintenance, and the evidence does not suggest that his duties were near the perimeter or into Vietnam. The Compensation and Pension Services Memorandum for Record does not suggest that the Veteran would have been exposed to herbicides during his service in Thailand, and the JSRRC could not confirm exposure to herbicide based upon the Veteran's service in Thailand, to include through his duties servicing aircraft. Therefore, the Board finds that exposure to herbicides cannot be conceded on the basis of service in Thailand. With respect to Dr. S.'s notation that the Veteran was exposed to herbicides in service, Dr. S. did not explain any reasons for such a conclusion or express that the notation was based upon anything other than the Veteran or appellant's report. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, as noted above, the evidence does not support the assertion that the Veteran was exposed to Agent Orange through his service or came in contact with equipment or plane parts that had Agent Orange on them. To this extent, Dr. S's statement is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Finally, the fact that the Veteran had been diagnosed with diabetes during his lifetime, a disease associated with Agent Orange exposure, without more, does not establish exposure to Agent Orange in service. Therefore, the appellant has not established an adequate factual foundation for establishing the Veteran's exposure to Agent Orange. Accordingly, the presumptive provisions of 38 U.S.C. § 1116 (for disabilities due to herbicide exposure) do not apply to the claim for service connection for accrued benefits nor the claim for service connection for the cause of the Veteran's death. However, the regulations governing presumptive service connection for herbicide exposure do not preclude the appellant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). As such, the Board will adjudicate the claims on a theory of direct entitlement to service connection. IV. Accrued Benefits A proper party is entitled to any periodic monthly benefits under laws administered by the Secretary to which the decedent was entitled at his death under existing ratings or decisions, or those benefits based on the evidence in file at the time of the deceased's death which were due and unpaid preceding the deceased's death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. A veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision in order for a surviving spouse to be entitled to accrued benefits. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). The Veteran filed a claim for service connection for lung cancer in September 2007. This matter had not been adjudicated at the time of his death in August 2008. The appellant subsequently filed claim for accrued benefits in October 2008, well within a year of the Veteran's death. Consequently, the appellant has met the threshold requirements of the claim for purposes of accrued benefits and the Board will address the claim on merits. As noted above, the Board can only consider evidence in the claims file or constructively in VA's possession at the time of death. See Ralston, 13 Vet. App. at 113. The Veteran contended that his lung cancer was due to exposure to Agent Orange in service. As an initial matter, the Board notes that the Veteran did not claim, and the evidence does not reflect, that his disability was the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for malignant tumors if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 CFR 3.303(b). With respect to the current appeal, that list includes malignant tumors. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Here, there is no evidence that the Veteran's lung cancer had its onset in service or is otherwise related to service. The service treatment records are silent for related complaints or diagnoses, and the lungs and chest were consistently found to be normal with only minor abnormality noted on chest x-ray on one occasion, with subsequent x-ray at discharge within normal limits. Lung cancer was not "noted" during service. In addition, the Veteran did not have characteristic manifestations sufficient to identify the disease entity. Rather, the more probative evidence establishes a manifestation approximately 18 months prior to death in 2008. The Veteran did not allege that he had symptoms of lung cancer in service or until many years thereafter, and the first evidence of lung cancer is in 2006. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection). See 38 C.F.R. § 3.303(b). Moreover, private treatment records do not indicate a relationship between the Veteran's lung cancer and service, to include exposure to herbicides. Thus, based upon the cumulative record, the Board concludes that lung cancer first manifested years post service and that there is no nexus to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Furthermore, the evidence of record at the time of the Veteran's death did not indicate that the Veteran advanced any specific contention as to why he believed that this disability was related to service other than exposure to herbicides and Agent Orange. This alleged exposure, as discussed above, cannot be presumed and is unable to be verified. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for lung cancer, for accrued benefits purposes. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). V. Dependency and Indemnity Compensation (DIC) DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. A veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran's death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The Veteran died in 2008 and his primary cause of death was listed as metastatic lung cancer, with an onset approximately 19 months prior to death. No other underlying or contributed caused was indicated. In this case, service connection was not in effect for any disability prior to the Veteran's death. Private treatment records indicate diagnosis and treatment of lung cancer in 2006, with recurrences in 2007 and 2008, leading to the Veteran's eventual death in August 2008. As to the cause of death listed on his death certificate, lung cancer, as discussed above, there is no probative evidence of a nexus between lung cancer and the Veteran's service. That is, service connection is not warranted for the cause of death listed on the Veteran's death certificate. Specifically, the service treatment records are silent as to any complaints, treatment, or diagnosis of lung cancer. Rather, the lungs and chest were normal at separation. Similarly, the chest x-ray was normal. Such "chronic" diseases were not "noted" during service. See 38 C.F.R. § 3.303(b). Post-service, as discussed above, there is no indication of a malignant tumor within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). See Walker, 708 F.3d at 1336-40. Moreover, there also is no probative evidence (no nexus evidence) linking the Veteran's cause of death with his active service. Holton, 557 F.3d at 1366. With regard to lay evidence, in certain instances lay evidence from the Veteran's spouse, when competent, can establish a nexus between the Veteran's death and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed. Cir. 2009). However, the appellant has not offered any specific contention as to why she believes that the Veteran's cause of death is related to service-other than his unverified exposure to Agent Orange-and thus no there is probative lay evidence on this issue in the present case. In any event, any such allegation would be clearly outweighed by the evidence of record discussed above. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Entitlement to service connection for lung cancer, to include as due to exposure to herbicides, for purposes of accrued benefits, is denied. Entitlement to service connection for the cause of the Veteran's death, to include as due to exposure to herbicides is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs