Citation Nr: 1311566 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-48 196 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to non-service-connected burial benefits. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1943 to April 1946, including in the European Theater of Operations during World War II. He died in October 2006. The Appellant is his adult daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Because the Appellant currently lives within the jurisdiction of the RO in Newark, New Jersey, that facility retains jurisdiction in this appeal. The matter of whether a Presidential Memorial Certificate has been issued to the Appellant based on the Veteran's active service has been raised by the record. In January 2010 correspondence included in the Veteran's Virtual VA paperless claims file, the Appellant asserted that, although she had requested a Presidential Memorial Certificate for her father, an honorably discharged Veteran of World War II, she had never received this certificate. It is not clear from a review of the Veteran's claims file or his Virtual VA paperless claims file whether a Presidential Memorial Certificate has been issued to the Appellant based on the Veteran's active service. Therefore, this matter is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Appellant if further action is required on her part. REMAND The Appellant contends that she is entitled to non-service-connected burial benefits even though her application for these benefits was received more than 2 years after the Veteran's burial. She specifically contends that she was not advised of her entitlement to non-service-connected burial benefits until more than 2 years after the Veteran's burial. See generally 38 C.F.R. § 3.1601(a) (2012) (imposing 2-year deadline from date of Veteran's burial for application for non-service-connected burial benefits). The Board finds that additional development is necessary before the underlying claim can be adjudicated on the merits. The Board notes that, although it is clear from a review of the Veteran's claims file that the Appellant's claim for non-service-connected burial benefits was filed more than 2 years after the Veteran's burial, it is not clear whether the Veteran died while properly hospitalized by VA. The Board observes in this regard that, if a Veteran dies from a non-service-connected cause while properly hospitalized by VA, an allowance may be paid for the actual cost of the Veteran's funeral and burial and an additional amount for transportation of the Veteran's body to the place of burial. See 38 C.F.R. § 3.1600(c) (2012). A review of the limited documentation submitted by the Appellant in support of her non-service-connected burial benefits claim (which was scanned in to Virtual VA but not included in the physical claims file) shows that, although the Veteran's death certificate lists his place and county of death, it is not clear whether he died at home, in a nursing care facility, or at a VA or private hospital. In other words, the Board cannot determine based on the evidence currently of record whether the Veteran was properly hospitalized by VA at the time of his death. Id. The Board observes in this regard that, although a 2-year time limit normally applies for filing non-service-connected burial benefits claims, this time limit is inapplicable to claims for the cost of transporting a Veteran's body to the place of burial under § 3.1600(c) where a Veteran is properly hospitalized by VA at the time of death. See 38 C.F.R. § 3.1601(a) (2012). Thus, on remand, the RO/AMC should contact the Appellant and request additional information or documentation concerning whether the Veteran was properly hospitalized by VA at the time of his death. The Board also observes that it is not entirely clear from a review of the Veteran's physical claims file or his Virtual VA paperless claims file which disabilities were service-connected prior to his death. The Board notes in this regard that a review of the Veteran's physical claims file shows that the most recent information regarding the Veteran's service-connected disabilities is dated in 1963, approximately 5 decades ago. There are rating decisions dated prior to 1963 included in the Veteran's claims file which indicate that service connection was in effect only for bilateral perceptive deafness (or hearing loss), evaluated as 10 percent disabling. There also is no relevant information concerning the Veteran's service-connected disabilities prior to his death in his Virtual VA paperless claims file. The Board acknowledges that service connection may not have been in effect for any additional disabilities prior to the Veteran's death. Because it appears that information contained in the Veteran's physical claims file concerning his service-connected disabilities prior to his death may be incomplete, and because this claim is being remanded for additional development, the Board finds that, on remand, the RO should obtain information from an appropriate system of records maintained by VA concerning all of the Veteran's service-connected disabilities prior to his death and include this information in his claims file. The Appellant finally is advised that the evidence being requested from her by the Board in this remand, and any other supporting evidence requested from her on remand, must be submitted to VA within 1 year from the date of any request for information sent to her by the RO. See 38 C.F.R. § 3.1600(b) (2012). Accordingly, the case is REMANDED for the following action: 1. Contact the Appellant and ask her to provide information concerning where the Veteran died (i.e., at a VA Medical Center for hospital, nursing, or domiciliary care, a non-VA facility for hospital care, or a nursing home). Advise the Appellant that she has 1 year from the date of this request to provide information concerning where the Veteran died to VA. If the Appellant notifies VA that the Veteran died while properly hospitalized by VA, then obtain all VA treatment records for the Veteran dated prior to his death which have not been obtained already, to include specifically any hospitalization records dated prior to his death. Once signed releases are received from the Appellant, obtain all private treatment records for the Veteran dated prior to his death which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Obtain relevant information from an appropriate systems of records maintained by VA concerning all of the Veteran's service-connected disabilities prior to his death. A copy of this information should be included in the Veteran's claims file (or in Virtual VA). 3. Review all evidence received since the last prior adjudication and readjudicate the Appellant's claim. If the determination remains unfavorable to the Appellant, then the RO should issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Appellant. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).