Citation Nr: 1635034 Decision Date: 09/07/16 Archive Date: 09/20/16 DOCKET NO. 10-33 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a plot allowance as part of nonservice-connected burial benefits. ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served in the Commonwealth Army of the Philippines in service of the Armed Forces of the United States (USAFFE) from December 1941 to August 1942 and from March 1944 to February 1946, and was a prisoner of war from April 1942 to August 1942. He died in October 2008, and the appellant is his surviving son. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision in February 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The decision granted the appellant's claim for nonservice-connected burial benefits in the amount of $300 for the burial expenses. The decision makes it clear that the benefits were for the funeral and burial of the Veteran. It did not address whether a plot allowance was also warranted. Following notification of the decision in February 2010, the appellant asserted in April 2010 that the cause of the Veteran's death should be service-connected and he was entitled to the "full reimbursement of burial expenses." A final March 2011 rating decision denied an application to reopen a claim for service connection for the cause of the Veteran's death. A June 2011 Board decision/remand denied nonservice-connected burial benefits in an amount greater than $300 for the funeral and burial of the Veteran. The Board observed that it did not appear that the RO had adjudicated the issue of whether the appellant was entitled to a plot allowance as a part of the nonservice-connected burial benefits. The Board remanded the issue for adjudication. A September 2011 supplemental statement of the case (SSOC) denied entitlement to plot allowance as part of the nonservice-connected burial benefits in an amount greater than $300. A June 2016 deferred rating decision noted that the September 2001 SSOC had been returned to VA, and VA had resent it in July 2013 to a new address. The deferred rating decision concluded that the Veteran had received the July 2013 copy of the SSOC as there was no evidence it was returned, and other VA correspondence sent to the new address had not been returned. During the pendency of the appeal, and as discussed in detail below, VA issued new regulations governing entitlement to burial benefits, including nonservice-connected burial allowances and plot allowances. The new regulations are applicable to claims for burial benefits pending on or after July 7, 2014. They do not apply to the Veteran's past claim for nonservice-connected burial benefits in an amount greater than $300 for funeral and burial of the Veteran, which was denied by the June 2012 Board decision/remand. The new regulations do apply to the claim for a plot allowance being addressed in this decision. FINDING OF FACT The Veteran was eligible for nonservice-connected burial benefits, and is not buried in a state owned cemetery or section thereof used solely for persons eligible for burial in a national cemetery, a national cemetery, or cemetery owned by the federal government. CONCLUSION OF LAW The criteria for a plot allowance as part of nonservice-connected burial benefits, not in excess of $350, have been met. 38 U.S.C.A. §§ 101, 2302, 2303, 2402, 5107 (West 2015); 38 C.F.R. §§ 3.40 , 3.1705, 3.1707 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In his application for burial benefits received in November 2008, the appellant indicated that the place of interment of the Veteran's remains was not in a state owned cemetery or section thereof used solely for persons eligible for burial in a national cemetery. The appellant also indicated that the Veteran's burial was not in a national cemetery or cemetery owned by the federal government. The appellant claimed that he paid for the burial plot and submitted receipts to support his claim. The February 2010 administrative decision on appeal paid the appellant $300 for funeral expenses of the Veteran and the expense of preparing the body and transporting it to the place of burial. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). The RO did not indicate whether a plot allowance was also warranted. As noted above, during the pendency of the appeal and effective July 7, 2014, VA issued new regulations governing entitlement to burial benefits, including nonservice-connected burial allowances and plot allowances. Specifically, VA removed the prior regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new sections 3.1700 through 3.1713. See 79 Fed. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The new regulations, which were written and organized for clarity and ease of use, and which are intended to improve delivery of burial benefits, are applicable to claims for burial benefits pending on or after July 7, 2014. Although in this case the RO did not consider the appellant's claim under the new regulations or provide him notice thereof, no prejudice has resulted as under either version of the regulations VA is limited to paying the maximum burial and plot allowances specified in 38 U.S.C.A. §§ 2302 and 2303. Section 3.1707 in pertinent part provides that, unless VA has evidence on the date it receives notice of the Veteran's death that the expenses incurred were less, VA will pay the maximum plot or interment allowance specified in 38 U.S.C. 2303(b)(2) to a claimant who incurred plot or interment expenses relating to the purchase of a burial plot for a deceased veteran if the veteran is buried in a cemetery other than a cemetery described in paragraphs (b)(1) and (b)(3) of this section and the veteran was eligible for a burial allowance under §3.1705, burial allowance based on non-service-connected death. The Board notes that 38 U.S.C. 2303(b)(2) (2015) currently allows a sum not exceeding $700. Except at provided in 38 C.F.R. § 3.43 (providing for burial benefits at the full-dollar rate for certain Filipino veterans residing in the United States on the date of death), VA pays burial benefits for Filipino veterans based on service described in 38 C.F.R. § 3.40(c) or (d) (i.e. service with the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II) at a rate of $0.50 for each dollar authorized under the law. 38 C.F.R. § 3.40 (2015). In this case, the February 2010 decision granted the appellant's claim for nonservice-connected burial benefits in the amount of $300 for burial expenses (i.e., funeral and burial of the Veteran). The Veteran is not buried in a state owned cemetery or section thereof used solely for persons eligible for burial in a national cemetery, a national cemetery, or cemetery owned by the federal government. When the Board initially reviewed the claim in 2011, it noted that the RO decision did not include any indication of whether a plot allowance was warranted and remanded for adjudication of that issue. 16420864 In the SSOCs issued after the Board remand, the RO indicated that February 2010 decision did consider the plot allowance and the $300 awarded to the appellant, with consideration of 38 C.F.R. § 3.40, included $150 for the burial benefits and $150 for the plot allowance. The Board points out that neither the February 2010 decision nor the June 2010 statement of the case provided to the appellant included any discussion or reference to a plot allowance or the different rate at which Philippine veterans could be paid. Thus, the Board finds that the plot allowance was not considered in the February 2010 decision. Therefore, applying the relevant law, the Board finds that the appellant is entitled to a plot allowance as part of nonservice-connected burial benefits not in excess of $350. 38 U.S.C. 2303(b)(2); 38 C.F.R. §§ 3.40, 3.1707. ORDER A plot allowance as part of nonservice-connected burial benefits not in excess of $350 is granted, subject to the rules and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs