Citation Nr: 1454326 Decision Date: 12/10/14 Archive Date: 12/16/14 DOCKET NO. 12-22 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to burial benefits, to include a plot or interment allowance. ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1942 to July 1945. He died in March 2009. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran died in March 2009 due to nonservice-connected causes; he was buried that month. 2. The appellant, the Veteran's widow, paid for the Veteran's burial and filed an application for burial benefits, to include a plot or interment allowance, for the nonservice-connected death in April 2009. 3. At the time of his death, the Veteran was in receipt of VA compensation benefits. 4. The Veteran was entitled to be buried in a national cemetery, but instead was buried in a private cemetery. CONCLUSIONS OF LAW 1. The criteria for entitlement to nonservice-connected burial benefits have been met. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. § 3.1600 (2014). 2. The criteria for entitlement to a plot or interment allowance have been met. 38 U.S.C.A. § 2303 (West 2002); 38 C.F.R. § 3.1600 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Specific to claims for burial benefits, a burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C.A. § 2302; 38 C.F.R.§ 3.1600. If a veteran dies as a result of a service-connected disability or disabilities, certain amounts as authorized may be paid toward the veteran's funeral and burial expenses including the cost of transporting the body to the place of burial. 38 C.F.R.§ 3.1600(a). If a veteran's death is not a result of service-connected disability or disabilities, entitlement to payment of benefits toward the veteran's funeral and burial expenses including the cost of transporting the body to the place of burial is subject to the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or (2) the veteran had an original or reopened claim for either benefit pending at the time of the veteran's death, and (i) in the case of an original claim there is sufficient evidence of record to have supported an award of compensation or pension effective prior to the date of the veteran's death, or (ii) in the case of a reopened claim, there is sufficient prima facie evidence of record on the date of the veteran's death to indicate that the deceased would have been entitled to compensation or pension prior to the date of death; or (3) the deceased was a veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and the body of the deceased is being held by a State (or a political subdivision of a State) and the Secretary determines, (i) that there is no next of kin or other person claiming the body of the deceased veteran, and (ii) that there are not available sufficient resources in the veteran's estate to cover burial and funeral expenses; and (4) the applicable further provisions of this section and §§ 3.1601 through 3.1610. 38 C.F.R. § 3.1600(b); 38 U.S.C.A. § 2302(a). Alternatively, burial benefits may be paid if a person dies from nonservice-connected causes while properly hospitalized by VA in a VA facility (as described in 38 U.S.C.A. § 1701(3) ) for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C.A. §§ 1710 or 1711(a); or in a non-VA facility (as described in 38 U.S.C.A. § 1701(4) ) for hospital care under the authority of 38 U.S.C.A. § 1703; or in a nursing home under the authority of 38 U.S.C.A. § 1720 for nursing home care at the expense of the United States; or in a State nursing home for nursing home care with respect to which payment is authorized under the authority of 38 U.S.C.A. § 1741. See 38 C.F.R. § 3.1600(c). If a veteran dies en route while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care, burial expenses will be allowed as though death had occurred while properly hospitalized by VA. 38 C.F.R. § 3.1605(a). Claims for reimbursement or direct payment of burial and funeral expenses under 38 C.F.R. § 3.1600(b) must be received by VA within two years after the permanent burial or cremation of the body. Where the burial allowance was not payable at the death of the veteran because of the nature of his or her discharge from service, but after his or her death the discharge has been corrected by competent authority so as to reflect a discharge under conditions other than dishonorable, a claim may be filed within two years from the date of correction of the discharge. This time limit does not apply to claims for service-connected burial allowance under 38 C.F.R. § 3.1600(a) (claims for service-connected death and burial allowance) or for the cost of transporting a veteran's body to the place of burial under 38 C.F.R.§ 3.1600(c) or § 3.1600(g). 38 C.F.R. § 3.1601. In addition to the benefits provided for under 38 U.S.C.A. § 2302, in the case of a veteran who is eligible for burial in a national cemetery under 38 U.S.C.A. § 2402 and who is not buried in a national cemetery or other cemetery under the jurisdiction of the United States, VA shall pay a sum not exceeding $300 as a plot or interment allowance to such person as VA prescribes if such veteran is eligible for a burial allowance under § 2302, died while admitted to a VA facility, or was discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty. 38 U.S.C.A. § 2303(b)(2). The correlating regulation, 38 C.F.R. § 3.1600(f)(1), provides that, for claims filed on or after December 16, 2003, plot or interment allowance is payable to the person or entity who incurred the expenses if: (1) the deceased veteran is eligible for burial in a national cemetery, (2) the veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States, and (3) the applicable further provisions of 38 C.F.R. § 3.1600 and §§ 3.1601 through 3.1610 are met. For purposes of the plot and interment allowance, plot or burial plot means the final disposal site of the remains, whether it is a grave, mausoleum vault, columbarium niche, or other similar place. 38 U.S.C.A. § 3.1601(a)(3). Further, interment expenses are those costs associated with the final disposition of the remains and are not confined to the acts done within the burial grounds but may include the removal of bodies for burial or interment. Id. Here, the record shows that the appellant's application for burial benefits was date stamped in April 2009, within the time period allotted for filing a claim for burial benefits. See 38 C.F.R. § 3.1601(a). Service connection has not been established for the cause of the Veteran's death. Moreover, according to the appellant's April 2009 application for burial benefits, she is not claiming that the Veteran's cause of death was due to service or service-connected disability for the purposes of this claim. At the time of the Veteran's death, service connection was in effect for neurocirculatory asthenia with associated psychoneurosis and tachycardia, rated at 10 percent disabling. The certificate of death shows that the Veteran died in March 2009 and was buried a few days later in March 2009; the immediate cause of death was aspiration pneumonia. The death certificate indicates that the Veteran died at a private hospital and was interred at a private cemetery. In the April 2009 application, the appellant indicated that she and the Veteran paid for the funeral costs totaling $11,230.81. Given that the Veteran's death was not service-connected, but that he was in receipt of compensation at the time of death, the Board finds that basic eligibility for non-service connected burial benefits has been established. The Board notes that the RO will determine in the first instance what proportion of the appellant's contributions to the Veteran's funeral expenses are appropriate. According to information contained in the record, including documentation from the funeral home, the total cost of the Veteran's funeral was $9,632.23. The appellant avers that she and the deceased Veteran paid for the entire cost of the funeral. In a July 2012 statement by the appellant, she asserted that full payment had been made to the San Fernando Mission Cemetery. She stated that she and the Veteran have a reverse mortgage. The appellant further explained that "withdrawing and transferring funds into our personal checking account takes five to seven business days. In order to expedite payment for my husband's funeral expenses, my daughter, [redacted], used her Corporate American Express credit card to pay the amount in full. I did in fact transfer funds from our reverse mortgage into our checking [account] and made payment to her American Express account in the amount of $10,000. The amount is in [excess] of the balance due to the mortuary because my daughter also purchased food and miscellaneous other items for the reception following the funeral." The appellant submitted documents into evidence to support her contentions. The Board acknowledges that a March 13, 2009 receipt from Mission Hills Catholic Mortuary reflects that [redacted] American Express card was charged in the amount of $9,632.23. A March 14, 2009 Funeral Arrangement Agreement and Statement of Funeral Goods and Services Elected from Mission Hills Catholic Mortuary reflects a balance of $9,632.23 that was noted as unpaid. An April 24, 2009 Bank of America statement belonging to the appellant and the deceased Veteran shows that a payment was made to an American Express account in the amount of $10,000 on April 16, 2009. An American Express statement belonging to [redacted] [redacted] and her husband shows that a $10,000 payment was received on April 16, 2009. Claims for burial allowance may be made by the funeral director, if the entire bill or any balance remains unpaid, the individual whose personal funds were used to pay burial, funeral, and transportation expenses, or the executor or administrator of the estate of the veteran or the estate of the person who paid the expenses of the veteran's burial or provided such service. 38 C.F.R. § 3.1601(a)(1). In light of the above discussion, and resolving reasonable doubt in favor of the appellant, the criteria for burial benefits under 38 C.F.R. § 3.1600(b) have been met. In implementing the Board's grant, the RO should contact the funeral home to ensure that the costs have been paid prior to releasing the award to the appellant. Next, the Board will additionally consider whether the appellant is entitled to a plot or interment allowance. Since August 2006, the requirements for internment benefits have been broadened. Specifically, as is relevant here, when a Veteran dies from nonservice-connected causes, entitlement to a plot or interment allowance is warranted when the following conditions are met: the deceased Veteran is eligible for burial in a national cemetery; the Veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States; and entitlement is not precluded via the applicable further provisions of 38 C.F.R. §§ 3.1601 through 3.1610. See 38 C.F.R. § 3.1600(f) (2014). In this case, the Veteran served on active duty and thus was entitled to burial in a national cemetery. Also, as was discussed above, the evidence indicates that his remains were not buried at such a cemetery, as the place of final disposition was at a privately owned cemetery. Further, there is nothing in the record to suggest that payment of a plot allowance would be precluded under 38 C.F.R. §§ 3.1601-3.1610. Notably, the appellant filed a timely claim for burial benefits in April 2009, see 38 C.F.R. § 3.1601, and also submitted the certified death certificate, showing the place of burial. Consequently, as all of the pertinent criteria are met, VA payment of the plot allowance is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to nonservice-connected burial benefits is granted, subject to the laws and regulations governing the payment of VA benefits. Entitlement to a plot or interment allowance is granted, subject to the laws and regulations governing the payment of VA benefits. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs