Citation Nr: 20002265 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 13-29 786 DATE: January 10, 2020 ORDER Entitlement to service connection for lung cancer is denied. Entitlement to service connection for squamous cell cancer of the lymph nodes of the neck is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to Dependence and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam or another area in which exposure to herbicide agents may be presumed, and the most probative evidence fails to show actual herbicide exposure. 2. Lung cancer was not manifested during service or within one year of service, and the preponderance of the evidence is against a finding that the Veteran’s lung cancer was related to an event, injury, or disease in service. 3. Squamous cell cancer of the lymph nodes of the neck was not manifested during service or within one year of service, and the preponderance of the evidence is against a finding that the Veteran’s squamous cell cancer of the neck was related to an event, injury, or disease in service. 4. Prostate cancer was not manifested during service or within one year of service, and the preponderance of the evidence is against a finding that the Veteran’s prostate cancer was related to an event, injury, or disease in service. 5. The Veteran died in February 2010. The cause of death was terminal lung cancer and squamous cell cancer of neck lymph nodes. 6. At the time of his death, the Veteran was service connected for a low back disability (assigned a 20 percent disability evaluation); tinnitus (assigned a 10 percent disability evaluation); popliteal cyst, right knee (assigned a noncompensable disability evaluation); and bilateral hearing loss (assigned a noncompensable disability evaluation). 7. The preponderance of the evidence is against a finding that any service-connected disability caused or contributed to the Veteran’s death. 8. The Veteran was not evaluated as totally disabled for service-connected disability at any point prior to his death, nor was he “entitled to receive” total service-connected disability compensation by way of any of the possible exceptions listed under 38 C.F.R. § 3.22 (b). CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for lung cancer have not been met. 38 U.S.C. § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for establishing entitlement to service connection for squamous cell cancer of the lymph nodes of the neck have not been met. 38 U.S.C. § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 3. The criteria for establishing entitlement to service connection for prostate cancer have not been met. 38 U.S.C. § 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 4. The criteria for establishing service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 1110, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.300, 3.303, 3.309, 3.311, 3.312 (2018). 5. The criteria for DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to June 1972 and from August 1974 to August 1990. The Veteran died in February 2010, and the appellant is his widow. The appellant was properly substituted in a February 2013 VA memorandum. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana. The appellant testified at a Board videoconference hearing in February 2015, and a copy of that transcript is of record. In June 2015, the Board remanded the issues on appeal. Thereafter, in a November 2017 decision, the Board denied the issues on appeal. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 order, the Court granted a Joint Motion for Remand (JMR) vacating that decision and remanding it to the Board. In February 2019, the Board remanded this matter for additional development. I. Service Connection The Veteran contended that lung cancer, squamous cell cancer of the lymph nodes of the neck, and prostate cancer were the result of in-service exposure to herbicides and/or other environmental toxins, such as asbestos. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Additionally, effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245 -01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. The diseases associated with herbicide exposure for purposes of the presumption include prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309 (e). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, to include malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). B. Factual Background The Veteran’s service treatment records reveal no complaints, treatment or diagnoses of lung cancer, cancer of the lymph nodes of the neck, or prostate cancer. In-service medical examinations, to include separation examinations conducted in June 1972 and July 1990, show that the Veteran’s neck, lungs and chest, anus and rectum and lymphatics were evaluated as clinically normal. Post-service medical evidence reflects diagnoses of lung cancer, cancer of the lymph nodes of the neck, and prostate cancer. A December 2004 private treatment record shows that the Veteran was diagnosed with prostate cancer. A February 2007 private treatment record shows that a needle biopsy of the neck revealed metastatic poorly differentiated non-small cell carcinoma. A May 2007 private treatment record shows that the Veteran was diagnosed with squamous cell carcinoma of the right lung with high neck metastatic disease. The Veteran’s DD214s show that during his first period of service, his military occupational specialty (MOS) was communications equipment repairman and during his second period of service his MOS was infantryman. From August 1969 to June 1972, the Veteran was assigned to the 60th Air Port Squadron at Travis Air Force Base as a ground radio maintainer. The Veteran’s personnel records show that the Veteran was stationed in Korea on TDY in March 1971. The Veteran was also stationed in Korea from August 1984 until August 1985. The Veteran’s personnel records do not show that the Veteran was stationed in Vietnam at any time during his military service. There is also no indication that the Veteran was stationed at Dugway Proving Ground. On the Veteran’s April 2009 claim for service connection, the Veteran answered “No” to the question “Did you serve in Vietnam?” The Veteran answered “Yes” to the question “Were you exposed to Agent Orange or other herbicides?” The Veteran answered “Dugway Proving Ground” to the question “Country where exposed?” The Veteran also indicated that he was “constantly exposed to loose and flaking asbestos insulation in the old WWII barracks that we lived in.” A July 2009 request for information shows that there was no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam. In a January 2010 statement, which appears to be signed by the appellant, the Veteran clarified that his claim of service connection for lung cancer was “due to Agent Orange exposure while serving in Vietnam.” In a February 2010 letter, the appellant reported that the Veteran was in Vietnam for three tours. In a February 2010 statement, the Veteran reiterated that he was claiming entitlement to service connection for lung cancer as due to Agent Orange exposure. In an October 2010 statement, the appellant reported that the Veteran was in Vietnam on TDY. She also reported that he was in Korea twice on TDY. In a November 2010 statement, the Veteran’s mother reported that the Veteran told her that his group was dropped into Vietnam to set up communications. In a May 2014 statement, the appellant asserted that while the Veteran was stationed at Lackland Air Force Base, he was sent on TDY to Vietnam. In an August 2014 statement, the appellant asserted that it was her firm belief, that, while no proof can be found in her husband’s records that he actually stepped foot in Vietnam or in the DMZ area of Korea, it would go to reason that due to the nature of his job in the Air Force, Tactical Air Combat Control, that it is at least as likely as not that his TDY did place him in Vietnam and that while in Korea he may have conducted training or operations in the area of the DMZ. At the February 2015 Board hearing, the appellant testified that the Veteran was TDY in Korea for two days as reflected in his personnel files. In a May 2015 statement, the appellant asserted that the Veteran’s DD214s were wrong in stating that the Veteran was not in Korea or Vietnam. In May 2015, the appellant submitted personnel records that have “DMZ” handwritten next to Korea under “area and country.” In March 2016, the RO made a formal finding of lack of information required to corroborate herbicide (Agent Orange) exposure. They found that the information needed to verify that the Veteran was exposed to herbicide (Agent Orange) had not been furnished and they were therefore unable to send a request for verification to the U.S. Army, Joint Services Records Research Center (JSRRC), and/or C&P Services (Agent Orange Mailbox). The RO also found that the information was insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The efforts made to obtain the relevant information were set forth. The RO noted review the Veteran’s personnel file showed the Veteran has service with Co B 1st Bn 9th Inf as a (11B10) Platoon Sergeant from February 1984 to August 1985. There is no evidence the Veteran served in any unit or other military entities that DOD has identified as operating in or near the Korean DMZ during the qualifying period of April 1, 1968 to August 31, 1971, for tactical herbicide (Agent Orange) exposure and no service in any location presumptively exposed. The RO noted that the Veteran’s personnel file is negative for unit information, performance reports, orders, or assignments showing service along the Korean DMZ. The RO noted that information on claimed herbicide exposure was insufficient for JSRRC research. The RO also noted that service treatment records and service records were reviewed for evidence of herbicide exposure and none were found. In a May 2016 statement, the appellant asserted that Veteran’s TDY orders were to Korean DMZ. The appellant also asserted that the custodians of the Veteran’s records failed to complete his records. She asserted that incomplete personnel records within her husband’s file should not be the primary reason to deny his exposure to herbicide while he served in Korea. In April 2019, the RO requested information from the appellant regarding the Veteran’s alleged exposures at Dugway Proving Ground, but she did not respond. In April 2019, the RO send a DPRIS request for information regarding the Veteran’s March 1971 TDY to Korea, to include whether he was stationed near the DMZ. In a June 2019 response, DPRIS indicated that they researched the October 1970 to June 1971 history submitted by the 60th Miliary Airlift Wing (MAW), the higher headquarters of the 60th Aerial Port Squadron (APS), stationed at Travis Air Force Base. DPRIS reported that the history does not mention or document that the Veteran or personnel assigned to the 60th APS were sent on TDY to Korea in March 1971 to install radios at the DMZ. In a July 2019 statement, the Veteran’s brother-in-law reported that the Veteran told him that he was stationed at Camp Greaves, Korea with the 2nd Infantry Division around 1968-1969 and that he had been at Da Nang Air Base in Vietnam while in the Air Force. In August 2019, the RO obtained the Veteran’s pay records from October 1971 to July 1972; however, records prior to October 1971 were not available. These records, which are largely illegible, do not appear to show any TDY or hazardous duty pay. In September 2019, the RO issued a Formal Finding of Unavailability of Agent Orange Verification. The RO noted that there was no evidence in the Veteran’s service personnel or treatment records to substantiate exposure to Agent Orange. The RO also noted that negative responses were obtained to JSRRC and DFAS research requests. The RO concluded that it was unable to verify exposure to Agent Orange. C. Analysis Based on the above, the Board finds that the most competent and credible evidence of record is against a finding that the Veteran was exposed to herbicides. The Board finds that the Veteran did not serve in the Republic of Vietnam. Personnel records do not reflect service in the Republic of Vietnam, and the Veteran signed his first DD214 for the period from June 1968 to June 1972, which includes a specific notation that he had no foreign service, to include service in Vietnam. None of the Veteran’s evaluation reports during this period reference service in Vietnam. Moreover, the Veteran denied having service in Vietnam when he filed his claim in April 2009. Significantly, the only documents alleging Vietnam service come from the appellant and the Veteran’s family. There are no documents associated with the claims file wherein the Veteran alleged service in Vietnam. Similarly, the Board finds that the Veteran did not serve in or near the Korean DMZ between April 1, 1968 and August 31, 1971. The Board acknowledges that the Veteran appears to have been on TDY in Korea in March 1971. However, there is no evidence in the Veteran’s personnel files that he was at or near the DMZ during that period. Significantly, the unit history for the Veteran’s unit in March 1971 does not document anyone, including the Veteran, being at or near the DMZ to install radios. Nor do the Veteran’s evaluation reports during this period reference service in Korea, to include at or near the DMZ. In contrast, during the Veteran’s 1984-1985 service in Korea, evaluation reports specifically note that the Veteran served along the DMZ. The Board acknowledges the lay assertions of record that the Veteran served in Vietnam and along the DMZ in Korea. The Board notes that the Veteran was competent to report where he served and that the appellant and the Veteran’s mother and brother-in-law are competent to report what the Veteran told them. However, when compared to the official records as discussed above, such records tend to refute such assertions. Moreover, the Board notes significant discrepancies in the lay statements of record. For example, the Veteran’s mother indicated that the Veteran was sent into Vietnam to fix radios with the 82nd Airborne, a unit to which the Veteran was not assigned until his second period of service with the Army beginning in 1974, which is after the period that herbicide exposure has been alleged. Additionally, the Veteran’s brother-in-law indicated that the Veteran served in the 2nd Infantry Division in Korea in 1968 or 1969. However, the 2nd Infantry division is an Army unit, whereas the Veteran was in the Air Force in 1968 and 1969, and the Veteran’s records show that he was in training continuously through August 1969, when he reported to his first Air Force unit (60th APS) at Travis Air Force Base. The Board also notes that in May 2015, the appellant submitted personnel records that have “DMZ” handwritten next to Korea under “area and country.” However, this specific personnel record was previously associated with the claims file and did not contain the handwritten notations. Therefore, the Board finds that the personnel record with the handwritten notations has been altered. The Board notes that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.” Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Thus, in light of the inconsistencies between the original and the altered document, the Board assigns the altered personnel record no probative weight in determining if the Veteran served on the DMZ in Korea during the relevant period. Accordingly, the Board finds that the Veteran’s contemporaneous personnel records have more probative weight in determining whether the Veteran’s service involved duty or visitation to the Republic of Vietnam or the Korean DMZ during the qualifying period, when compared to the recent lay recollections of the appellant and others. Moreover, as noted above, the Board finds it significant that the Veteran did not allege serve in Vietnam or along the Korean DMZ during his lifetime. Rather, these assertions come only second-hand from the Veteran’s spouse and family. Further, the Board notes the inconsistencies between the lay statements and the Veteran’s official personnel records. The Board is aware of the concept outlined by the United States Court of Appeals for Veterans Claims (Court) that “[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.” See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The Board also notes that in Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court noted in a footnote that “as a general matter, the absence of evidence is not substantive negative evidence. While the majority agrees that this is not an absolute rule, there must be ‘a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact’.” The Court also referenced Federal Rule of Evidence 803(7) and cited Buczynski for the proposition that “‘the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded.’” In this case, the Board finds that a proper foundation exists, as the Board finds that in-country Vietnam service and/or service along the DMZ during the qualifying period is a fact that would have ordinarily been record in the Veteran’s personnel records. It is reasonable to conclude that a TDY trip to a foreign country to set up communications during a period of war, as reported by the Veteran’s family, would have ordinarily been recorded in official personnel records. It is also reasonable to conclude that a unit, to include the Veteran, being assigned to the DMZ would have also been recorded in performance reports, orders, assignments, or unit histories. The silence in the personnel records as to Vietnam service has a tendency to prove the relevant fact that such reported service did not occur. Similarly, the silence in the personnel records and the unit history of service along the Korean DMZ during the relevant period has a tendency to prove the relevant fact that such reported service did not occur. As such, based on the preceding discussion, the absence of evidence of in-country Vietnam service and service along the DMZ during the qualifying period in the Veteran’s personnel records may serve as substantive negative evidence against such reported service. The Board acknowledges the appellant’s assertions that due to the nature of the Veteran’s job in the Air Force, Tactical Air Combat Control, that it is at least as likely as not that the Veteran’s TDY did place him Vietnam and that while in Korea may have conducted training or operations in the area of the DMZ. The Board also notes the appellant’s assertions that the failure of custodians to complete the Veteran’s records should not bar service connection. However, again, the absence of evidence of in-country Vietnam service and service along the DMZ during the qualifying period in the Veteran’s personnel records serves as substantive negative evidence against such reported service. The Board also finds that the Veteran was not exposed to herbicides at Dugway Proving Grounds. Initially, the Board notes that there is no evidence in the record that the Veteran was stationed at Dugway Proving Grounds. Moreover, the appellant was asked and did not provide information regarding this specific contention. The appellant’s contentions that the Veteran could have been exposed at Dugway Proving Grounds without corroborating evidence have little probative value. Although the Board finds the appellant credible, the record is negative for competent evidence as to herbicide exposure to the Veteran at Dugway Proving Grounds. The appellant is competent to provide testimony regarding factual matters of which she had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the appellant does not contend to have firsthand knowledge of herbicide exposure, nor does she provide lay statements to display firsthand knowledge that the Veteran shared with her regarding his potential exposure to herbicides at Dugway Proving Grounds. The appellant may honestly believe the Veteran was exposed to herbicides. However, the appellant’s evidentiary statements of feelings, hypothetical circumstances, and theories regarding potential herbicide exposure lack factual bases and are insufficient to shift the preponderance of the evidence in favor of finding the Veteran was exposed to herbicides. As the most probative evidence of record is against a finding that the Veteran had in-country service in the Republic of Vietnam, along the DMZ during the qualifying period, or was otherwise exposed to herbicides during the course of his military service, the presumption of herbicide exposure and presumptive service connection based on exposure to herbicides is not warranted. Notwithstanding the foregoing, the fact that the Veteran is not entitled to the presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. 38 U.S.C. § 1113 (b); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As noted above, malignant tumors are included in the list of chronic diseases under 38 C.F.R. § 3.309 (a). However, service treatment records are absent of any complaints, treatment or diagnosis of lung cancer, prostate cancer or cancer of the lymph nodes of the neck. Thus, there is no evidence that these conditions manifested during active service or within the first post-service year. Post-service treatment records confirm that the Veteran was first diagnosed with these conditions in 2004 and 2007, which was many years after service. None of the clinical records mention a history of onset in service or shortly after service. The Veteran did contend that these conditions first manifested during service or within one year of discharge from service. Additionally, the appellant does not contend, and the evidence of record does not illustrate, that the Veteran’s disabilities manifested to a compensable degree within one year of service or that the Veteran suffered from continuous symptoms since service. See 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. Based on the foregoing, the Board finds that service connection cannot be granted based on chronicity or continuity of symptomatology as the Veteran’s cancers did not manifest during service or within one year of separation from service. 38 C.F.R. § 3.309 (a). The appellant is therefore not entitled to invoke these presumptions, but the claim is still considered under traditional service connection principles. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As an initial matter, the Board notes that the Veteran was diagnosed with lung cancer, prostate cancer, and cancer of the lymph nodes of the neck. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, the Board concludes that the evidence of record is against a finding that the Veteran’s lung cancer, prostate cancer, and cancer of the lymph nodes of the neck were related to any injury, event, or illness in service. As noted, service treatment records are negative for any treatment or diagnosis of the Veteran’s cancers. The Veteran’s cancers were diagnosed in 2004 and 2007, over 10 years after his separation from service. The appellant does not assert, and the evidence does not show that the Veteran’s cancers began prior to 2004. To the extent that the appellant asserts that the Veteran’s cancers were the result of his exposure to asbestos during service, there is no probative evidence supporting that claim. The Board finds that the lay statements from the Veteran alleging exposure to asbestos at Dugway Proving Grounds are not competent or sufficient to establish actual exposure to asbestos. Identification of asbestos is not within the general knowledge of a layperson, and the statements of the Veteran did not identify any training or qualifications that he possessed that would have enabled him to identify asbestos while he was staying in old barracks in 1968, when he was 20-years-old. Moreover, as noted above, the Veteran’s personnel records do not reflect any service at Dugway Proving Grounds, and the appellant did not respond to requests for additional information that would have allowed VA to further investigate these claims. In this case, the appellant does not assert, and the record does not indicate, that the Veteran experienced symptoms of his cancers during or since his active service. Nor does the appellant contend that the Veteran’s cancers were caused by any aspect of service other than herbicide or asbestos exposure. The Veteran’s service treatment records are absent for evidence of in-service treatment for his cancers, and there is no competent evidence of record linking the Veteran’s cancers to his active service on a direct basis. The record reflects that the Veteran was diagnosed with cancer in 2004, which was almost 15 years after service separation. Therefore, the record does not show that the Veteran’s cancers had their onset during his active service or are otherwise etiologically related to his active service on a direct basis. See Combee, 34 F.3d at 1043. Thus, the Board finds that the weight of the evidence is against a finding of service connection for lung cancer, prostate cancer, or cancer of the lymph nodes of the neck. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102 (2017), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). II. Service Connection for the Cause of the Veteran’s Death The appellant seeks service connection for the cause of the Veteran’s death. To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.312 (a). The basic facts are not in dispute. The Veteran died in February 2010. The immediate cause of death was terminal lung cancer and squamous cell cancer of neck lymph nodes. See Death Certificate. At the time of his death, the Veteran was service connected for a low back disability (assigned a 20 percent disability evaluation); tinnitus (assigned a 10 percent disability evaluation); popliteal cyst, right knee (assigned a noncompensable disability evaluation); and bilateral hearing loss (assigned a noncompensable disability evaluation). Initially, the Board notes that there is no evidence or argument that any of the Veteran’s service connected disabilities (i.e., a low back disability, tinnitus, right knee cyst, or hearing loss) was a principal or contributory cause of death or that the Veteran’s lung cancer and/or squamous cell cancer of neck lymph nodes was proximately due to or the result of the Veteran’s service-connected disabilities. The appellant’s sole contention is that the Veteran’s lung cancer and squamous cell cancer of neck lymph nodes should have been service connected. However, as discussed in detail above, service connection for lung cancer and cancer of the lymph nodes of the neck is not warranted. Thus, in considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the claim for service connection for the cause of the Veteran’s death must be denied. In reaching this determination, the Board does not question the appellant’s sincere belief that the cause of the Veteran’s death is disease due to service. While the Board is cognizant of the late Veteran’s honorable service in defense of his country and is sympathetic to his widow’s situation, her personal belief that the Veteran’s death was due to service, no matter how sincere, is simply not supported by the evidence. See Voerth v. West, 13 Vet. App. 117, 119 (1999). For the above stated reasons, the preponderance of the evidence weighs against a finding that the Veteran died from a condition that was incurred or aggravated in service. The benefit-of-the-doubt doctrine is therefore not helpful to the appellant, and the claim for service connection for the cause of the Veteran’s death must be denied. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. III. DIC under 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran’s surviving spouse or children in the same manner as if the Veteran’s death is service-connected, even though the Veteran died of non-service-connected causes, if the Veteran’s death was not the result of his or her own willful misconduct AND at the time of death, the Veteran was receiving, or was “entitled to receive,” compensation for service-connected disability that (1) was continuously rated as totally disabling for the 10 years immediately preceding death, (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the Veteran was a former prisoner of war (POW) who died after September 30, 1999. 38 U.S.C. § 1318; 38 C.F.R. § 3.22 (a). The term “entitled to receive” means that, at the time of death, the Veteran had filed a claim for disability compensation during his lifetime, and the Veteran had service-connected disability rated totally disabling by VA for the requisite time period, but was not receiving compensation due to six possible circumstances: (1) VA was paying the compensation to the Veteran’s dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the Veteran; (3) the Veteran had not waived retired or retirement pay in order to receive compensation; (4) VA was withholding payments under the provisions of 10 U.S.C. § 1174 (h)(2); (5) VA was withholding payments because the Veteran’s whereabouts were unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22(b)(3). In addition, the term “entitled to receive” can mean that the Veteran filed a claim for disability compensation during his lifetime and one of the following two circumstances is met: (1) the Veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the Veteran’s lifetime concerning the issues of service connection, disability evaluation, or effective date; or (2) additional evidence submitted to VA before or after the Veteran’s death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the Veteran’s lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section. 38 C.F.R. § 3.22 (b)(1) and (2). The Federal Circuit has ruled that § 1318 DIC claims are not subject to a “hypothetical entitlement” analysis. Rodriguez v. Peake, 511 F.3d 1147, 1156 (2008); see also Tarver v. Shinseki, 557 F.3d 1371, 1377 (Fed. Cir. 2009). Therefore, the state of the law is such that claims for DIC benefits under 38 U.S.C. § 1318 must be adjudicated with specific regard given to decisions made during the Veteran’s lifetime and without consideration of hypothetical entitlement for benefits raised for the first time after a Veteran’s death. See Rodriguez v. Peake, 511 F.3d 1147 (2008). In this case, the Veteran was service-connected for the following disabilities at the following rates at the time of his death: back strain, rated as 20 percent disabling from June 10, 1972 to August 2, 1974 and from April 2, 2008; tinnitus, rated as 10 percent disabling from April 2, 2009; popliteal cyst, right knee rated as noncompensable from June 10, 1972 to August 2, 1974 and from September 1, 1990; and bilateral hearing loss rated as noncompensable from April 2, 2009. Accordingly, the Veteran was not in actual receipt of total 100 percent disability compensation due to service-connected disabilities prior to his death in February 2010 for any of the required periods of time. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). Therefore, the Board finds that entitlement to 38 U.S.C. § 1318 benefits are not met on this basis. The Board also notes that the appellant has not raised an allegation of CUE in a final rating decision, pursuant to 38 C.F.R. § 3.105 (a). See Fugo v. Brown, 6 Vet. App. 40 (1993) and Damrel v. Brown, 6 Vet. App. 242 (1994) (emphasizing the pleading requirements for raising, and burden of proof for establishing, a CUE claim). Thus, there is nothing to change the fact that the Veteran, who died 20 years after his discharge from service, had no service-connected disability or disabilities rated as totally disabling for at least 10 years prior to his death. Thus, entitlement to DIC pursuant to 38 U.S.C. § 1318 is not warranted as a matter of law. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kipper, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.