Citation Nr: 18156343 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-46 478 DATE: December 11, 2018 ORDER Entitlement to service connection for cause of the Veteran’s death is denied. FINDING OF FACT 1. The Veteran died on October [redacted], 2006. The death certificate lists respiratory failure, septic shock, and mycobacterium kansasii as the primary causes of death. Anoxic encephalopathy was also listed a significant condition contributing to death. 2. The Veteran’s death did not result from any disability incurred in or aggravated by, service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303. 3.307 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from October 1967 to October 1969. The Veteran is now deceased. The appellant is the Veteran’s surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant stated, in part, that “those type of C.U.E are troubling” on her Form 9 referring to the May 2015 rating decision. Final and binding VA determinations will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). CUE is a collateral attack on a prior, final decision and does not apply to a current, pending claim. See May v. Nicholson, 19 Vet. App. 310 (2005); Link v. West, 12 Vet. App. 39, 44 (1998). In this case, the May 2015 rating decision has not become final. Therefore, the Board will not refer a CUE issue to the agency of original jurisdiction. Entitlement to service connection for cause of the decedent’s death is denied. Generally, to establish entitlement to service connection for the cause of the decedent’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran passed away in October 2006. At the time of his death, he was service connected for tinea cruris, tinea pedis, retained metallic foreign body of the abdominal wall at the level of L3, lumbosacral strain, and fragment wounds scars of the right shoulder, neck, and left thigh. His death certificate reported that the primary causes of death were respiratory failure, septic shock, and mycobacterium kansasii. Anoxic encephalopathy was also listed as a significant condition contributing to his death. The appellant contends that the Veteran’s death was due to his service connected fragment wounds. She reports that she can state “for sure” that the Veteran had retained metallic objects in his neck. She also states that his herbicide exposure during Vietnam led to conditions that contributed to his death. As to the appellant’s contention that the Veteran died due to his service-connected fragment wounds, the preponderance of the evidence does not support that this service-connected disability contributed substantially or materially to the Veteran’s death. As stated above, it is not listed on the Veteran’s death certificate that this disability caused his death. Also, the submitted medical records do not provide a link to this service-connected disability and the Veteran’s death. The RO has requested medical evidence showing that the Veteran’s service connected disabilities were connected to his death. While the appellant has submitted medical records surrounding the medical treatment the Veteran incurred prior to his death, these medical records do not provide a link between the Veteran’s service connected disabilities and the Veteran’s death. The appellant also contends that the Veteran is entitled to benefits due to his herbicide exposure and that the medical records she has submitted link his exposure to his death. The medical records submitted by the Veteran report that he was diagnosed with myelodysplastic syndrome (MDS) in June 2006, but the records do not link this condition to his death. As such, the Board finds that service connection for death is not warranted due to his herbicide exposure. While the Veteran’s herbicide exposure has been conceded by the RO, his causes of death, and MDS, are not entitled to presumption service connection under § 3.307. Moreover, the evidence does not show that the Veteran’s MDS caused or contributed to his death. The Board acknowledges that an attending physician in September 2006 stated that Agent Orange is “known to be associated with MDS….” While the medical evidence submitted by the appellant shows that the Veteran may have had a disability that was caused by herbicide exposure, the medical records do not provide a link between the Veteran’s disability and his causes of death. As the submitted medical evidence does not show that his MDS or herbicide exposure caused his death, service connection for cause of death is not warranted. The Board has considered the appellant’s contentions and the submitted buddy statements associated with this claim. The appellant has contended that the Veteran would point out to her on many occasions that the retained metal object in his neck would be painful to touch, and he would suffer severe headaches when it migrated. While the Board does not question the Veteran’s competency to report the symptoms he endured as a result of his service connected disability, the record does not indicate that his combat wounds contributed to his death. There is no medical statement linking his wounds, or the symptoms he reported as a result of the wounds, to his death. Notably, his death certificate does not enumerate the disability or the symptoms as a cause of death. Therefore, the Board finds the evidence of record is more probative than the appellant’s statements that the Veteran’s combat wounds contributed to his death. The appellant has also stated that the Veteran suffered from a mental disorder during his lifetime; however, the medical evidence does not indicate a mental disorder led to the Veteran’s death. The Board has also considered the submitted buddy statements asserting that the Veteran suffered with symptoms secondary to his gun-shot wounds that he endured due to service. Moreover, they contend that the blood the Veteran received could have contributed to retained metallic bodies. While the Board does not question the Veteran was service connected for retained metallic bodies and fragment wounds, as discussed, the evidence does not show that these disabilities are related to his death. As such, even if the Veteran endured symptoms related to his service connected disabilities, the essential inquiry is whether these symptoms contributed to his death. As the evidence does not indicate that the Veteran’s death was caused by any of the issues mentioned in the buddy statements, the Board does not find the buddy statements probative to the claim. Although the Board does not doubt the sincerity of the appellant’s beliefs that the Veteran’s death was somehow caused by his service, the preponderance of the evidence is against the claim. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Wade, Associate Counsel