Citation Nr: 1806692 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-26 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service-connected burial benefits. ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran served on active duty from February 1946 to December 1956. The Veteran died in September 2011. The appellant is the Veteran's son. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The matter was previously before the Board in May 2015, when the Board also remanded a claim for entitlement to service connection for the cause of the Veteran's death for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The claim for entitlement to service-connected burial benefits was remanded as it was found to be inextricably intertwined with the claim for service connection for the cause of the Veteran's death. The RO issued the requisite SOC in June 2015. Despite being specifically notified in the May 2015 Board remand and the June 2015 SOC that he needed to file a substantive appeal (VA Form 9 or equivalent statement) to perfect his appeal to the Board; the appellant has not filed a VA Form 9 or other substantive appeal. Governing regulations provide that an appeal consists of a timely filed notice of disagreement (NOD) in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Therefore, no further action is required with respect to that claim as an appeal was not perfected in the matter. FINDING OF FACT At the time of Veteran's death, he was rated totally disabled for service-connected schizophrenia; and on the date VA received notice of the Veteran's death, there was no evidence that the Veteran did not die of a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service-connected burial benefits have been met. 38 U.S.C. §§ 2302, 2303, 2304, 2307 (2012); 38 C.F.R. §§ 3.1704(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As the Board is granting the benefit sought on appeal, there is no further need to discuss VA's efforts to comply with the duties to notify and assist. Effective July 7, 2014, VA amended the regulations governing entitlement to monetary burial benefits, which include burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. 79 Fed. Reg. 32658-62 (June 6, 2014) (now codified at 38 C.F.R. §§ 3.1700 -3.1713). The final rulemaking is applicable to claims for burial benefits pending on or after July 7, 2014. 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. § 2302; 38 C.F.R. § 3.1700. A greater burial allowance is warranted if the veteran died from a service-connected disability. 38 U.S.C. § 2307; 38 C.F.R. § 3.1704(b). 38 C.F.R. § 3.1704(b) provides that a burial allowance is payable under this section for a Veteran who died as a result of a service-connected disability or disabilities. VA will presume, unless it has evidence to the contrary on the date it receives notice of the Veteran's death, that a Veteran died as a result of a service-connected disability or disabilities if, at the date of death, the Veteran was rated totally disabled for a service-connected disability or disabilities, excluding a total disability rating based on individual unemployability. As an initial matter, the Veteran's death certificate indicates that the Veteran died in September 2011. The immediate cause of death was listed as "T/C Drug overdose-Thorazine; Seroquel" and acute respiratory failure. The antecedent cause was status asthmaticus, and the underlying cause was listed as schizophrenia and asthma. At the time of the Veteran's death service connection was in effect for schizophrenia, rated as 100 percent disabling, left middle finger fracture, rated as 10 percent disabling, left leg scar, rated as 0 percent disabling, residuals of hemorrhoidectomy, rated as 0 percent disabling, hearing loss, rated as 0 percent disabling, and erectile dysfunction, rated as 0 percent disabling. The evidence of the record also includes a September 2011 VA Form 27-0820a, Report of First Notice of Death, which indicates that the appellant notified VA of the Veteran's death. In October 2011, the appellant filed a VA Form 21-530, Application for Burial Benefits, along with the Veteran's death certificate. In September 2012, the appellant was awarded $600.00 for burial and plot expenses and was advised that service-related burial benefits were denied because the Veteran's death was not related to service. The Board notes that in a September 2012 rating decision, the RO denied service connection for the cause of the Veteran's death, finding that the more probative evidence of record, including a January 2012 VA medical opinion, was against a finding that the Veteran's death was the result of his service-connected schizophrenia or the medications prescribed for treatment for schizophrenia, or the result of his other service-connected disabilities. However, at the time of the Veteran's death, he was rated totally disabled for his service-connected schizophrenia. VA was notified of the Veteran's death in September 2011, and received the appellant's application for burial benefits and death certificate in October 2011. As indicated above, the Veteran's death certificate lists schizophrenia as an underlying cause of death. VA had no evidence to the contrary on the date it received notice of the Veteran's death in September 2011. Therefore, under the revised regulations, which are applicable to the appellant's claim since it was pending on July 7, 2014, it may be presumed that the Veteran died as a result of his service-connected schizophrenia. 38 C.F.R. § 3.1704(b). As such, the claim for service-connected burial benefits is warranted. ORDER Entitlement to service-connected burial benefits is granted. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs