Citation Nr: 1317663 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 05-35 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active duty from February 1962 to July 1982. He died in November 2003, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The appellant's claim was remanded by the Board for further development in February 2008, in June 2011, and also in August 2012. FINDINGS OF FACT 1. The Veteran died in November 2003; the death certificate lists the immediate cause of his death as complications of metastatic esophageal cancer, 2 years. 2. At the time of the Veteran's death, service connection was not in effect for any disabilities. 3. The Veteran served in the Republic of Vietnam during the Vietnam era, and it is presumed that he was exposed to Agent Orange, herbicides while there. 5. The Veteran was not shown to have been exposed to radiation during his military service. 6. Metastatic esophageal cancer which caused the Veteran's death, is not a disease presumptively associated with herbicide exposure. 7. Metastatic esophageal cancer was not shown in service, developed many years after the Veteran's military service, and there is no competent medical evidence providing a nexus indicating that his terminal metastatic esophageal cancer was related to his military service, including presumed exposure to herbicides or claimed radiation exposure. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)), imposes obligations on the VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for service connection for the cause of the Veteran's death, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a (Dependency and Indemnity Compensation (DIC) claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Prior to the initial adjudication of the appellant's claim in February 2004, VA sent her a letter in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was notified of the evidence that was needed to substantiate her claim; what information and evidence that VA will seek to provide and what information and evidence the appellant was expected to provide, and that VA would assist her in obtaining evidence, but that it was her responsibility to provide VA with any evidence pertaining to her claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Since this was before pertinent case law, the appellant was not provided with notice of the type of evidence necessary to establish a disability rating and effective date prior to the initial rating decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, disability ratings are not applicable to Dependency and Indemnity Compensation (DIC) claims and no effective date is to be assigned in light of the Board's decision. Thus, the Board finds that any notice failure is harmless error. In the context of a DIC claim, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Here, the Veteran was not service-connected for any conditions at the time of his death, and the February 2004 RO letter provided an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The Veteran's service treatment records and private treatment records have been associated with the claims file. In Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) made clear that § 5103A(d) does not apply to DIC claims. Rather, § 5103A(a) applies. Section 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim" and only excuses VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. In this case, a VA medical opinion discussing the etiological relationship between the Veteran's metastatic esophageal cancer, service, and his death was first performed in October 2009. Then for further clarification, subsequent to a Board remand, there was another medical opinion on the matter in December 2011. Also there was an addendum medical opinion in August 2012. These medical opinions have been associated with the claims file. There has been substantial effort to address the etiology of the Veteran's metastatic esophageal cancer, as well as the appellant's contentions. In 38 C.F.R. § 3.311 (a) it is provided that where a radiogenic disease, such as esophageal cancer which caused the Veteran's death is established, first became manifest after service, and it is contended that the disease is a result of ionizing radiation, a radiation dose estimate will be made. Here though, the claims folder is absent for any information to develop a radiation dose estimate. There is no mention of dates, places, or circumstances' regarding the Veteran's claimed service radiation exposure. See, VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, 1.C.8.a. In a June 2008 response, subsequent to a Board remand, the United States Army, Army Dosimetry Center, indicated that based on information given, they were unable to locate any records of the Veteran's exposure to ionizing radiation. As a result, lacking necessary information for further development, a radiation dose estimate, and also then referral to the VA Under Secretary for Health under 38 C.F.R. § 3.311 was not obtained. The Board is confident that VA's duty to assist has been met. VA has provided the appellant with the opportunity to submit evidence and arguments in support of her claims. The appellant and her representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the appellant will not be prejudiced as a result of the Board's adjudication of her claim. Service Connection for the Cause of Death The law provides DIC for a spouse of a Veteran who dies from a service-connected disability. See 38 U.S.C.A. § 1310. A service-connected disability is one that was incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). 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. Id. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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 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. Under 38 C.F.R. § 3.303(b) , an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; 38 C.F.R. § 3.303(b). The Board notes that the provisions of 38 C.F.R. § 3.303(b) are only applicable to disorders recognized by statute and VA regulation as "chronic," and that esophageal cancer is one such disease. See 38 U.S.C.A. § 1101 (West 2002); 38 C.F.R. § 3.309 (2012). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease such as malignant tumor becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), it will be presumed that he was exposed to herbicides if he served in Vietnam between January 9, 1962 and May 7, 1975 (i.e., during the Vietnam era), unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service; chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of the tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements. First, it must be shown that the Veteran served in the Republic of Vietnam during the Vietnam War era or elsewhere outside of Vietnam where Agent Orange was used or sprayed. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e). See Brock v. Brown, 10 Vet. App. 155, 162 (1997). However, the availability of presumptive service connection for a disability or, here, death, based on claimed exposure to herbicides does not preclude a claimant from alternatively establishing entitlement to service connection with proof of direct causation linking the claimed disability or death to the Veteran's military service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see, too, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). It also noted that the Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed.Reg. 32540 (June 8, 2010). Further, service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c) ; 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge was otherwise incurred during active service, including as a result of exposure to radiation. Combee, supra. With respect to the first method, the Board notes section 3.309(d)(1) provides that the diseases listed in paragraph (d)(2) of this section shall be service-connected if they become manifest in a radiation-exposed veteran. The provisions of section 3.309(d) limit the diseases subject to presumptive service connection to those specified in section 3.309(d)(2). This list of diseases includes multiple different types of cancers, including cancer of the esophagus. Metastatic cancer of the esophagus was cause of the Veteran's death. As to the second method, the provisions of 38 C.F.R. § 3.311 set forth procedures for the development of claims based on a contention of radiation exposure during active service and post-service development of a radiogenic disease. The provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation-exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). 38 C.F.R. § 3.311 essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. The regulation provides a list of recognized radiogenic diseases in subsection 3.311(b)(2), and the regulatory time period when the diseases must become manifest. 38 C.F.R. § 3.311(b)(5). In addition, subsection 3.311(b)(4) provides that, even if the claimed disease is not one that is already recognized as radiogenic under subsection 3.311(b)(2), the claim will still be considered, or developed, pursuant to 38 C.F.R. § 3.311 if the veteran cites or submits competent scientific or medical evidence that the claimed disease is radiogenic. Factual Background The Veteran died in December 2003, and the death certificate shows that the immediate cause of his death was metastatic esophageal cancer of 2 years duration. There were no significant conditions contributing to death. At the time of his death, the Veteran was not service connected for any disabilities. The Veteran had active service beginning in 1962, and he served two tours of duty in the Republic of Vietnam during the Vietnam era. His exposure to herbicides is conceded by the RO and the Board. The Veteran was the recipient of the Purple Heart. Upon his entrance into service the Veteran reported stomach, liver, or intestinal trouble. No pertinent clinical findings were reported, and the physical examination of the mouth and throat was normal. The Veteran's service treatment records (STRs) report sore throats, and an episode of bumps on the right side of throat that hurt when swallowing (July 1969). These symptoms were all associated with upper respiratory infections (URI's), including bronchitis, and acute pharyngitis. The Veteran's extensive service personnel records show that his primary occupational specialty was as a combat engineer, and also as a unit supply specialist. The service personnel records do not report any radiation exposure associated with the Veteran's service occupational duties. A January 1975 STR shows that the Veteran complained of abdominal pain. An upper gastrointestinal series showed that the esophagus appeared normal. Accentuated mucosal folds in the duodenum suggested probable peptic inflammatory change. The diagnostic impression was questionable ulcer disease. In an October 1975, Report of Medical History, the Veteran reported frequent indigestion. It was mentioned in the medical summary that an upper gastrointestinal examination revealed no ulcer. In November 1976, during a medical assessment for the Veteran's sudden weight loss, it was reported that an upper gastrointestinal series was normal. In May 1977, the Veteran reported a persistent sore throat for 6 months. It was mentioned that he smoked 1 pack of cigarettes per day. The diagnosis was (pharangitis) probably due to voice overuse and smoking. The Veteran's entire STRs, including his discharge physical examination records, do not reveal any complaints, treatment or diagnoses referable to a chronic disorder of the esophagus or esophageal cancer. A VA Form 21-526e, Veterans Application for Compensation or Pension at Separation from Service, received in August 1982, does not list esophagus problems or esophageal cancer. Private medical records dating from July 2003, show that the Veteran received treatment for esophageal problems and difficulty swallowing when a fish bone was caught in his throat. In August 2003 GERD was diagnosed. In September 2003, the Veteran denied a history of heartburn dating back to 1991. It was reported that his father and paternal grandmother had died of esophageal cancer. An EGD (esophagogastroduodenoscopy) revealed a lesion in the lower esophagus later identified through a biopsy as poorly-differentiated adenocarcinoma. In another September 2003 private medical report, a physician stated that the Veteran's poorly-differentiated adenocarcinoma was metastatic, and it most likely arose from Barrett's esophagitis. Late September 2003 private medical records show that the Veteran was given the option of chemo and radiation therapy with tumor resection, and he opted for herbal therapy at home. He was admitted to a private hospital in October 2003 due to nausea, vomiting, and abdominal pain. Acute cholecystitis and pancreatitis were reported, and a cholecystectomy was performed. In November 2003, the Veteran was again hospitalized due to complications of metastatic esophageal cancer. During the hospitalization, his condition deteriorated and he was afforded comfort measures until his death ensued. The discharge diagnosis was metastatic esophageal cancer, with complications leading to patient's death. Dated in August 2006 is an internet article titled "What is Cancer of the Esophagus?". The article describes the esophagus and mentions that reflux or gastroesophageal reflux disease (GERD) may lead to Barrett esophagus of which there is a highly increased risk for developing cancer of the esophagus. The two main types of esophageal cancer were squamous cell and adneocarcinoma. In May 2008, subsequent to a Board remand, the RO contacted the appropriate military service organization component, and requested information verifying the Veteran's exposure to ionizing radiation; namely, a request for a DD 141, Record of Exposure to Ionizing Radiation, or equivalent record of occupational radiation exposure. In a June 2008 response, the United States Army, Army Dosimetry Center, indicated that based on information given, they were unable to locate any records of the Veteran's exposure to ionizing radiation. Following a February 2008 Board remand, a VA medical opinion was obtained. In the October 2009 medical opinion, the VA clinician's review was limited to the Veteran's service gastrointestinal treatment in 1975 and 1976 and postservice treatment for nearer to the time of his death August 2003. The examiner concluded that the Veteran's esophageal metastatic carcinoma and death was not caused by or the result of any incident in service. It was stated that his family history and questionable GERD possibly may be the only risk factors from his esophageal carcinoma. It was also stated that the examiner was unable to decipher if the Veteran was exposed to Agent Orange and that esophageal carcinoma is not considered by VA to be the result of Agent Orange. Subsequent to another remand from the Board, since the October 2009 opinion was considered incomplete, another VA medical opinion was requested. In the December 2011 medical opinion, a VA physician indicated that he had reviewed the claims folder. He affirmatively acknowledged that the claimed condition (esophageal carcinoma) was less likely than not incurred in or caused by claimed in-service injury, event, or illness. In his rationale, the physician indicated that the (Veteran's) death certificate listed "Complications of metastatic cancer of 2 1/2 years duration," and that esophageal cancer is not a long-lasting chronic disease. It was mentioned that the "Vietnam Veterans information booklet of Vol. 25, No.1, of July 2010" does not list any gastrointestinal malignancies from herbicides. The examiner also incorrectly mentioned that the Veteran died in November 2002. It was later mentioned regarding conflicting medical evidence that had been offered on the Veteran's behalf that although Admiral Zumwalt recommended that esophageal cancer be considered as a result of herbicide exposure, this had not occurred. Subsequent to another remand from the Board, and since the December 2011 VA medical opinion was also incomplete, an addendum to that prior opinion was requested. In the August 2012 medical opinion, the previous VA physician reported reviewing the Veteran's STRs revealing treatment for sore throats from 1969 to 1979, as well as upper GI's in 1975 and 1976 for abdominal pain showing a duodenal ulcer. It was mentioned that in 2003, the Veteran was diagnosed with esophageal carcinoma that caused his death, and that the illness was of 2 years duration. Also that the Veteran's father and (paternal grandfather) died of esophageal cancers. It was mentioned that the Vietnam Veterans booklet does not list esophageal malignancies as being caused by herbicides. The VA physician opined that the Veteran's death from metastatic esophageal carcinoma was not caused by herbicides during his tour of duty in Vietnam. And that the time between his service and the development of malignancy was too long. Therefore, there is no connection between his sore throats while on active duty and his death being related due to herbicide exposure. Analysis The appellant contends that the Veteran had throat complaints during his military service, indicating that the metastatic esophageal cancer that caused his death, either had its onset during service or was related to his presumed service Agent Orange exposure. In the alternative, it is argued that metastatic esophageal cancer is a rare, radiogenic disease under 38 C.F.R. § 3.311, warranting consideration that the Veteran was exposed to radiation during service. The Board will address the appellant's claim pertaining to metastatic esophageal cancer as a radiogenic disease under 38 C.F.R. § 3.309 (d), and then 38 C.F.R. § 3.311; as well as direct and presumptive service connection 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran had active duty from February 1962 to July 1982. He served in the Army as a Combat Engineer Sr. Sgt. for 16 years, and a Unit Supply Specialist for 2 years. He also earned the Air Medal and a Purple Heart for his combat service. A review of his service personnel records and STRs shows, however, that they are silent for evidence of in-service exposure to radiation or an acknowledgement that he had worked with radioactive substances or materials. None of his service duties are listed under the radiation risk activities under 38 C.F.R. § 3.309(c)(3) (onsite participation in atmospheric detonation of a nuclear device; occupation of Hiroshima or Nagasaki from August 6, 1945 to July 1, 1946; internment as a prisoner of war in Japan during World War II; was present as part of official military duties for at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or area identified as K25 at Oak Ridge, Tennessee; or service in capacity which if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384l(14))). So while cancer of the esophagus is a listed disease, the record does not establish that the Veteran participated in a radiation-risk activity during service as defined under 38 C.F.R. § 3.309(d)(3), and he is not considered a radiation-exposed veteran. As such, the presumptive provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309 do not apply. Under 38 C.F.R. § 3.311, esophageal cancer is listed as a radiogenic disease. Special development procedures are potentially warranted if the claim involves a radiogenic disease, and the disease manifested during certain specified periods. 38 C.F.R. § 3.311 (b)(2), (5). In this case, the Veteran's metastatic esophageal cancer was first shown in late 2003, so it manifested more than five (5) years after service. Although radiation exposure could not be presumed based on the record at the time, it precipitated further development. In compliance with a Board remand, the RO contacted the United States Army Dosimetry Center. In June 2008, the United States Army Dosimetry Center specified that they were unable to locate any records of the Veteran's exposure to ionizing radiation. Prior to that no information was or has been offered by the appellant or on her behalf regarding dates, places, or circumstances of the Veteran's claimed service radiation exposure. The assertion of the Veteran's exposure to radiation during his military service is not supported by any factual information at all. Here there is no sufficient evidence to establish that the Veteran was exposed to radiation requiring additional development by the RO to include obtaining a radiation dose estimate. See M21-1MR, Part IV, Subpart ii, 1.C. As a result of this void in supporting information regarding the Veteran's claimed radiation exposure, further development for a dose estimate and referral to the VA Under Secretary for Health and then the VA Under Secretary for Benefits as provided in 38 C.F.R. § 3.311 was obviated since there was not even an indication that the Veteran was exposed to ionizing radiation during his military service. It imperative to also mention at this point that there is no competent medical evidence that links the Veteran's metastatic esophageal cancer to claimed exposure to radiation in service. The Board acknowledges that the appellant believes that the Veteran potentially had in-service radiation exposure that ultimately caused his death, but there is simply no evidence, medical or otherwise to support this assertion. Service connection under the criteria of 38 C.F.R. § 3.311 is not available. Regarding service connection for the cause of the Veteran's death based on his presumed exposure to herbicides, it is noted that esophageal cancer is not a condition that is entitled to presumptive service connection based on herbicide exposure under 38 C.F.R. § 3.309(e). The VA Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for esophageal cancer. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed.Reg. 32540 (June 8, 2010). However, just because a claimant is not entitled to presumptive service connection based on exposure to herbicides does not preclude them from establishing entitlement to service connection, instead, with proof of actual direct causation. The appellant has to establish this required nexus or linkage. See Stefl, Combee,and McCartt, supra. It is noted that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board remanded this claim several times for medical nexus opinions concerning the Veteran's metastatic esophageal cancer and its relationship to his military service. In an August 2012 VA medical opinion addendum, a VA physician had the opportunity to review the Veteran's pertinent medical history, including his service throat complaints and symptoms. The Veteran's familial history of esophageal cancer was mentioned, and VA regulatory guidance not listing esophageal cancer as due to herbicides was referenced. The physician then opined that the Veteran's death from metastatic esophageal carcinoma was not caused by herbicides during his tour of duty in Vietnam. The physician remarked that the time between the Veteran's service and the development of malignancy was too long, and that there was no connection between his sore throats while on active duty and his death being related to herbicide exposure. This commenting VA physician applied valid medical analysis to the significant facts of this case in reaching his conclusion. It provides compelling evidence against the appellant's claim. It is noted that there is no competent medical evidence to the contrary. It must be concluded that there is no direct causation between the Veteran's metastatic esophageal cancer and his presumed herbicide exposure. The remaining consideration is whether service connection may be warranted on a direct basis, or on a presumptive basis for a metastatic esophageal cancer manifesting within one year after service. The Veteran's STRs show that he received treatment during service for throat complaints and symptoms, related to URI's and pharyngitis. He also reported frequent indigestion, and while gastrointestinal symptoms were reported in service, the esophagus was normal on Upper GI series that were performed. It is noted that the Veteran's STR's are absent for complaints, findings, or diagnoses of a chronic esophagus disorder or esophageal cancer. The metastatic esophageal cancer resulting in the Veteran's death, was not shown until approximately 21 years after his military service. Even though a VA clinician in October 2009 and December 2011 medical opinions did not consider the entirety of the facts, it is noted that the examiner determined that the Veteran's esophageal metastatic carcinoma and death was not caused by or the result of any in service illness. The Board determines that those opinions have some limited probative value. Further, there is no competent medical evidence here that establishes an etiological relationship between the Veteran's metastatic esophageal cancer and his military service. The Veteran's metastatic esophageal cancer is first shown many years after his military service so presumptive service connection for chronic diseases, such as tumors or cancer, is not applicable in this case. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In August 2006 in support of her claim, the appellant submitted an internet article generally describing the esophagus, and also indicating that GERD may lead to Barrett esophagus, and that there is a highly increased risk for developing cancer. This internet evidence, however, does not reference the specific facts of this particular case, and so it less probative than the VA examiner's opinion on the matter. The Board also has considered the appellant's statements and assertions regarding the Veteran's death and its relationship to his military service that have been submitted throughout the pendency of this appeal. However, this case at hand is not the type of situation discussed in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) and a number of other related cases holding that lay evidence may be sufficient to establish this required nexus (i.e., link) between the Veteran's military service and his disability and/or death. See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and Barr v. Nicholson, 21 Vet. App. 303 2007). Because this cause-of-death claim concerns fatal metastatic esophageal cancer this is not a mere "simple" condition, so not readily amenable to mere lay diagnosis or probative comment regarding its etiology, the appellant has to have supporting medical evidence, which, for the reasons and bases discussed, she simply does not. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic fever). Esophageal cancer is one the chronic diseases for which a continuity of symptoms must be considered under 38 C.F.R. § 3.303(b). Walker, supra. Here however, here there is a very lengthy time from service until the Veterans esophageal cancer is first shown, 21 years. And a VA clinician has opined essentially that that time is too long for the esophageal cancer disease process, so any continuity of symptoms asserted here is not supported by the medical evidence. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs