Citation Nr: 18157177
Decision Date: 12/13/18	Archive Date: 12/11/18

DOCKET NO. 14-21 708
DATE:	December 13, 2018
REMANDED
Entitlement to nonservice-connected burial benefits is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1970 to April 1972.  He died in June 2012.  The appellant is his surviving spouse.
In May 2018, the appellant testified before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.
The appellant seeks nonservice-connected burial benefits to recoup costs related to the Veteran’s funeral and burial.
Burial benefits may be paid if a veteran dies from nonservice-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care.  See 38 U.S.C. § 2303(a); 38 C.F.R. §§ 3.1600(c), 3.1605 (now 38 C.F.R. § 3.1706(b),(d)).
Here, the appellant asserts that the Veteran died while traveling to an appointment at the VA Medical Center in Newark, New Jersey.  Specifically, she alleges that the Veteran was riding in a van furnished by VA to that appointment.  It is unclear whether that van was provided at VA’s expense or whether the Veteran’s private insurance or Medicare paid for that transportation.
At the Board hearing, the appellant testified that the Veteran was transported to, and treated at, VA medical facilities on multiple occasions.  See Board Hearing Transcript (Tr.) at 7-8.  The April 2016 statement of the case reflects that the Veteran was scheduled for a VA medical appointment on the date of his death.  Regrettably, there are no VA medical records associated with the Veteran’s claims file.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  To that end, those outstanding VA treatment records may provide evidence relevant to whether the transportation to and from VA medical appointments was furnished at VA’s expense.  Accordingly, remand is necessary to obtain those outstanding VA medical records.
The matter is REMANDED for the following action:
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Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the file.
 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Michael Sanford, Counsel