Citation Nr: 18144883 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-03 641 DATE: October 25, 2018 ORDER The claim of entitlement to nonservice-connected burial benefits is denied. REMANDED The claim of entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. The Veteran died in October 2009 and was cremated later that month. 2. The appellant’s application for burial benefits was received in September 2013. CONCLUSION OF LAW The criteria for payment of nonservice-connected burial benefits are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1600-3.1610 (as in effect prior to July 7, 2014); 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1964 to April 1967. He died in October 2009. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2014, the appellant filed a notice of disagreement (NOD). In December 2014, a statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2015. In her January 2015 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled for a date in May 2018; however, the appellant failed to appear. As she has provided neither good cause for failing to appear, nor requested a rescheduling of the hearing, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d). The appellant asserts her entitlement to burial benefits to help recoup the costs of the Veteran’s funeral and cremation expenses. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and non-service-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for burial benefits pending on or after July 7, 2014. (The appellant’s claim for burial benefits has been pending since September 2013, i.e., prior to the effective date of the rule change on July 7, 2014). Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and old provisions, with due consideration to the effective date of the changes, and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the old regulations, in effect at the time the appellant’s claim was filed in September 2013. An application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the veteran’s body. 38 U.S.C. § 2304; 38 C.F.R. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)). This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1600(f). The two-year time limit does not apply to claims for service-connected burial allowance, or for the cost of transporting a veteran’s body to the place of burial when the veteran dies while properly hospitalized by VA, or for burial in a national cemetery. 38 C.F.R. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)). Here, the claim appealed to the Board was for nonservice-connected burial benefits. [The Board notes, parenthetically, that should service connection for the cause of death be granted, service-connected burial benefits will be awarded]. See December 2014 SOC. Moreover, it is uncontroverted that the Veteran did not die while hospitalized by VA and he was not buried in a national cemetery. The Veteran was cremated in October 2009, and the appellant’s application for burial benefits was received in September 2013—more than two years thereafter. As such, the application was untimely, and the claim for nonservice-connected burial benefits must be denied. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and cremation. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. As, on these facts, there is no legal basis to award nonservice-connected burial benefits, the claim for such must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claim for service connection for the cause of the Veteran’s death, prior to appellate consideration, is warranted. The appellant contends that service connection for the cause of the Veteran’s death is warranted. At the time of his death, the Veteran was not service-connected for any disability. To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Under the governing legal authority, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran’s death certificate lists probable arteriosclerotic cardiovascular disease as the immediate cause of the Veteran’s death. Although the Veteran’s service treatment records (STRs) are silent for any heart problems during active service, the appellant argues that the Veteran’s fatal heart disability had its onset during active service or is otherwise related to service. Specifically, the appellant has stated that, prior to his death, the Veteran stated that he began experiencing heart palpitations during active service. See October 2014 NOD. She also stated that the Veteran explained that he did not seek medical treatment during service as he was in denial that anything was wrong and he did not want to be seen as weak by his fellow servicemembers. See id. Under these circumstances, the Board finds that further action to obtain an adequate VA medical opinion by an appropriate physician—based on full consideration of all pertinent evidence (to include lay assertions), and supported by complete, clearly-stated rationale—is needed to resolve the claim for service connection for cause of the Veteran’s death. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Also, while this matter is on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal, explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103. 5103A; 38 C.F.R. § 3,156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. The matter is hereby REMANDED for the following action: 1. Furnish to the appellant and her representative a letter requesting that the appellant provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that appellant furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the matters within the one-year period). 2. If the appellant responds, obtain all identified evidence following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from a physician a VA medical opinion addressing the cause of the Veteran’s death. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran’s documented history and lay assertions. Following a review of all the relevant evidence of record, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s fatal arteriosclerotic cardiovascular disease had its onset during active service or is otherwise medically-related to active service. In offering this opinion, the examiner must consider and discuss all pertinent medical evidence and lay assertions—to include specific comment on the appellant’s statement that the Veteran reported experiencing heart palpitations during active service, but did seek treatment for such. The physician is advised that the Veteran was competent to report his symptoms and history, and that the appellant is competent to report her observation of the Veteran; hence, all such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal considering all pertinent evidence (to specifically include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel