Citation Nr: 1824932 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 17-04 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to additional non-service connected burial benefits. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to June 1962 and from August 1962 to May 1968. He died in August 2015, and the appellant is claiming benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2016 rating decision and a May 2016 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in Milwaukee, Wisconsin. In the April 2016 decision, the RO denied entitlement to DIC and service connection for the cause of the Veteran's death. In the May 2016 decision, the appellant was denied additional burial allowances. In June 2017, the Board denied the issue of entitlement to dependency and indemnity compensation pursuant to 38 U.S.C. § 1318 and remanded the remaining claims for further development. That development has been completed, and the case has since been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran died in August 2015. The certificate of death lists the primary cause of death as cardiomyopathy, and the underlying causes were identified a cardiopulmonary arrest, end stage cardiomyopathy, and congestive heart failure. 2. At the time of the Veteran's death, service connection was established for depression with psychotic features. That disability was not a primary or contributory cause of his death. 3. The Veteran's cardiopulmonary arrest, end stage cardiomyopathy, and congestive heart failure did not manifest in service or for many years thereafter and are not otherwise causally or etiologically related to his military service, including exposure to herbicides. 4. At the time of his death, the Veteran was receiving VA compensation benefits. 5. The appellant was paid $300 in non-service connected burial benefits in August 2015. In May 2016, VA paid the appellant an additional $580 for transportation costs. 6. The Veteran was buried in a national cemetery. CONCLUSIONS OF LAW 1. The requirements for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311, 3.312 (2017). 2. The criteria for entitlement to additional non-service connected burial benefits, to include a plot or interment allowance, are not met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1700-1713 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the VA's duty to notify and assist has been met. The RO sent an adequate notice letter to the appellant in June 2015, and all available service treatment records and post-service medical records have been obtained. The Board notes that the appellant has reported that the Veteran was treated for chest pain shortly after he separated from service at a private hospital in St. Louis, Missouri. In a September 2016 statement, she indicated that, at that time, there were hospital records pertaining to the Veteran's psychotic break during service; however, the records were destroyed. She also stated that the private treatment records from the hospital had been destroyed. A review of the record shows that the RO attempted to obtain records from two private hospitals in St. Louis pertaining to treatment for a heart attack and heart failure in February 1979 and continuous heart failure in January 1992, in connection with a previous claim for service connection initiated by the Veteran. However, in May 2015, the records department from the private hospitals indicated that the Veteran's records had been destroyed. As such, there is no further basis to attempt to secure these records, as efforts would be futile. The appellant has not identified any additional outstanding records pertinent to the issue decided herein. In addition, an adequate VA medical opinion was also obtained in December 2016. Neither the appellant nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). I. Service Connection for the Cause of the Veteran's Death Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. It would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. In the present case, coronary artery disease is an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) would apply if this disease is noted or shown in the record. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). That is, under 38 C.F.R. § 3.303(b), with an enumerated "chronic disease" shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). Ischemic heart disease is associated with herbicide exposure for purposes of this presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). As to ischemic heart disease, effective August 31, 2010, VA amended the applicable herbicide regulation, 38 C.F.R. § 3.309(e), to add ischemic heart disease to the list of diseases associated with exposure to herbicide. Ischemic heart disease includes, but is not limited to: acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). See 38 C.F.R. § 3.309(e) (codified at 38 C.F.R. pt. 4); 75 Fed. Reg. 53,202- 53,205 (August 31, 2010). However, for purposes of presumptive service connection due to herbicide exposure, the term "ischemic heart disease" does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 2 (codified at 38 C.F.R. pt. 4); 75 Fed. Reg. 53,202-53,205 (August 31, 2010). VA has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to herbicide exposure, but must also determine whether the disability was otherwise the result of active service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for the cause of the Veteran's death. The Veteran's death certificate listed the immediate cause of death as International Classification of Diseases (ICD) code I429, which corresponds to unspecified cardiomyopathy. The underlying causes were identified as cardiopulmonary arrest, end stage cardiomyopathy, and congestive heart failure. At the time of the Veteran's death, service connection was established for depression with psychotic features. Prior to his death, the Veteran submitted a claim for service connection for heart failure in May 2015. The claim was denied in a July 2015 rating decision. Thereafter, in September 2015, the appellant filed a claim for DIC. The appellant has contended that the Veteran had posttraumatic stress disorder (PTSD) that caused his heart trouble. Alternatively, she has contended that the Veteran had ischemic heart disease caused by exposure to Agent Orange during his military service. There is no evidence of record showing that the Veteran's cardiomyopathy, cardiopulmonary arrest, end stage cardiomyopathy, or congestive heart failure manifested during service or within one year of separation from service. The Veteran's service treatment records are negative for any complaints or findings related to his heart. In fact, May 1967, November 1967, and March 1968 hospitalization reports from the Naval Hospital in Oakland, California, documented that physical examinations were within normal limits, and chest x-rays were normal. The Veteran received psychiatric treatment and was placed on limited duty at the Naval Air Station in Alameda, California, while he participated in therapy. A Medical Evaluation Board determined that he was not fit for duty due to his psychiatric disorder, and he separated from service in May 1968. In an August 1968 VA examination report, a cardiovascular examination revealed a normal sinus rhythm without murmurs, and the Veteran's heart was not enlarged. A July 1968 VA chest x-ray, associated with the August 1968 VA examination report, showed a healthy chest. Moreover, the Veteran's post-service treatment records show that he had his first myocardial infarction in February 1979, which was over 10 years after his separation from service. See April 2013 private cardiology note, including Veteran's medical history. Based on the foregoing, the Board finds that the cause of the Veteran's death, cardiomyopathy, and the underlying causes of cardiopulmonary arrest, end stage cardiomyopathy, and congestive heart failure did not manifest in service. In addition to the lack of evidence showing that cardiomyopathy, cardiopulmonary arrest, end stage cardiomyopathy, or congestive heart failure manifested during service or within close proximity thereto, the weight of the evidence of record does not otherwise link the Veteran's cause of death to service. In her September 2015 claim and a September 2016 statement, the appellant contended that the Veteran developed ischemic heart disease as a result of exposure to Agent Orange during his Vietnam service. In her June 2016 notice of disagreement, she noted that the Veteran served aboard the U.S.S. O'Brien and the U.S.S. Pictor during the Vietnam War. The Board observes that VA's Adjudication Procedure Manual includes a list of ships which operated temporarily in Vietnam's inland waterways or those which docked to the shore. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1MR (M21-1MR), pt. IV, subpt. ii, § 1.H.28.h. The list of ships operating temporarily on Vietnam's inland waterways includes "blue water" ships which operated primarily on Vietnam's offshore waters but entered Vietnam's inland waterways temporarily as part of their gunfire, interdiction, or support missions. All veterans who served aboard these vessels at the time of entry into Vietnam's inland waterways are eligible for the presumption of Agent Orange exposure. Id. The Board observes that this list includes the U.S.S. Pictor, which was noted to have entered the Cua Viet River while delivering supplies to Dong Ha during September 1967. However, the Veteran's service personnel records indicate that he served aboard the U.S.S. Pictor from June 20, 1966, to April 27, 1967. Similarly, the list of ships that docked to shore or pier in Vietnam includes large ocean-going ships of the Blue Water Navy that entered an open water harbor and docked to a pier or otherwise docked to the shore of Vietnam. As a result of this docking, VA assumes that crewmembers had the opportunity to go ashore for a work detail or for liberty leave. Therefore, any veteran aboard a ship at the time of docking will be eligible for the presumption of exposure if that veteran provides a lay statement of personally going ashore. Id. In this case, the U.S.S. Pictor is included in the list of ships docked to shore or pier in Vietnam. Specifically, the list indicates that the U.S.S. Pictor was docked to pier at Da Nang during 1969. However, as noted above, the Veteran's service personnel records indicate that he served aboard the U.S.S. Pictor from June 20, 1966, to April 27, 1967. Moreover, the Veteran separated from service in May 1968. The list of ships that operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore also included large ocean-going ships of the Blue Water Navy. As noted above, any veteran aboard a ship at the time of docking will be eligible for the presumption of exposure if that veteran provides a lay statement of personally going ashore. Id. In this case, the U.S.S. O'Brien is included in the list of ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore. Specifically, the list noted that the U.S.S. O'Brien sent a motorized whaleboat ashore while anchored in Da Nang Harbor on December 16, 1969. However, the Veteran's service personnel records indicate that he served aboard the U.S.S. O'Brien from December 11, 1963, to May 23, 1964, and from September 25, 1964, to October 25, 1964. In addition, in support of her claim, the appellant submitted a statement from a former shipmate of the Veteran. In a September 2016 statement, H. L. indicated that he served as a second class machinist mate and that he reported to the Veteran aboard the U.S.S. O'Brien. He stated that the Veteran served aboard the U.S.S. O'Brien from 1965 to 1967 while patrolling the coast of South Vietnam and the Gulf of Tonkin. However, the Veteran's service personnel records conflict with H. L.'s statement and show that the Veteran served aboard the U.S.S. O'Brien from December 1963 to May 1964 and from September 1964 to October 1964. Thereafter, he was stationed at the Naval Station in Long Beach California, from November 1965 to May 1966, and aboard the U.S.S. Pictor from June 1966 to April 1967. Regardless, VA's Adjudication Procedure Manual's list of ships which operated temporarily in Vietnam's inland waterways or those which docked to the shore indicates that the U.S.S. O'Brien sent a motorized whaleboat ashore while anchored in Da Nang Harbor on December 16, 1969. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1MR (M21-1MR), pt. IV, subpt. ii, § 1.H.28.h. H. L.'s September 2016 statement does not indicate that the Veteran served aboard the U.S.S. O'Brien at that time. Again, as noted above, the Veteran separated from service in May 1968 and was not aboard the ship at this time. Based on the foregoing, the Board finds that the Veteran did not serve aboard the U.S.S. O'Brien or the U.S.S. Pictor during the time periods that they entered Vietnam's inland waterways or were docked to a pier or to shore in Vietnam. Therefore, the Veteran is not eligible for the presumption of Agent Orange exposure. Id. Alternatively, in her June 2016 notice of disagreement and a September 2016, the appellant contended that the Veteran's PTSD affected his heart. In a December 2016 VA medical opinion, a VA examiner opined that it was less likely than not that the Veteran's service-connected major depressive disorder with psychotic features caused or substantially contributed to his death. In addition, he opined that it was less likely than not that any treatment for the Veteran's service-connected major depressive disorder caused or substantially contributed to his death. He also opined that it was less likely than not that the Veteran's service-connected major depressive disorder caused debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death or that it contributed to the lengthy hospital stay and debilitation associated with it. The December 2016 VA examiner noted that he considered the Veteran's depressive symptoms, regardless of the diagnostic nomenclature used through time or considerations for an alternative diagnosis of PTSD. He stated that, in order to opine in favor of a claim asserting that a mental illness either caused or substantially contributed to a death by clear medical causes, it must be established that the providers for the disease ultimately causing death viewed mental health as the causal agent for the condition, or that mental illness was so grossly impairing the medical condition beyond its natural progression that death was the result. The examiner related that there were no medical records referencing referrals to mental health in order to treat the Veteran's heart condition. In addition, he noted that there were no medical records reflecting that the Veteran was unable to understand, participate, or benefit from available medical care due to profound mental health impairment. Further, he indicated that the Veteran's death certificate did not list mental illness as a contributory factor in the underlying cause of death. The VA examiner further related that private treatment records included in the claims file indicated "over a dozen medical diagnoses but no diagnosis of mental illness." He concluded that the records did not suggest a presentation or concern that mental illness was causing or grossly impairing the Veteran's medical conditions beyond their natural progression such that death was being expedited. He did note that other records did indicate a diagnosis of depression, but they did not state whether mental health care was a part of the treatment plan for the Veteran's heart conditions. Finally, the December 2016 VA examiner noted that the appellant claimed that PTSD, including symptoms of anger, caused the Veteran's heart disease and conditions resulting in his death. The examiner related that it was true that mental illness and a variety of symptoms are risk factors for various medical conditions, including heart issues. However, he indicated that such risk factors are not causal statements, but rather, discuss risk based upon correlational data. He explained that, for any given condition, there can be dozens of risk factors (for example, diet, family history, exercise, smoking, drug use, mental health, etc.), but only a singular cause (i.e., without it, the event would not occur). He stated that the mere presence of risk factors is not sufficient to opine to a nexus between death and mental illness. In a November 2017 VA medical opinion, a VA examiner opined that it was less likely than not that the Veteran's service-connected major depressive disorder caused or contributed substantially to his death from ischemic cardiomyopathy. She noted that the private treatment records showed that the Veteran had a strong family history and that both of his parents and sister died due to myocardial infarction. She indicated that the Veteran had coronary artery bypass grafting (CABG) in 1979 and 1992 with a history of sick sinus syndrome and placement of a biventricular automated implantable cardioverter defibrillator (AICD). She stated that the Veteran's diagnosis of ischemic cardiomyopathy was corroborated by echocardiogram, which was a form of advanced, end stage ischemic heart disease. She opined that the Veteran clearly had hereditary ischemic heart disease. She stated that, although stress related to mental health conditions is a risk factor for heart attack, it does not cause the underlying condition of atherosclerotic heart disease. Rather, she related that one's genetic makeup is the underlying cause of atherosclerotic heart disease. Based on the foregoing, the Board finds that service connection for the Veteran's immediate cause of death and the underlying causes of death is not warranted. The December 2016 and November 2017 VA examiners found that it was less likely than not that the Veteran's service-connected major depressive disorder caused or contributed substantially to his death from ischemic cardiomyopathy. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (a medical opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone); Sklar v. Brown, 5 Vet. App. 140 (1993). As the examiners reviewed the evidence and provided a thorough rationale for their opinions, the Board finds that the opinions are highly probative. The Board has also considered the appellant's contentions that the Veteran had PTSD that caused or significantly contributed to his death. However, the appellant and her representative have not provided any evidence of nexus between the immediate and underlying causes of death and the Veteran's service-connected psychiatric disability, except for what appears to be their own speculation or conjecture. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Generally, lay persons are competent to report as to the observable symptoms and its history. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the appellant and her representative are not competent to provide etiology opinions regarding this issue, as it is a complex medical determination based upon internal medical processes and is not capable of lay observation. Neither the appellant nor her representative has contended otherwise, and the evidence does not show, that they have the medical expertise to provide such opinions. See Jandreau, 492 F.3d 1372; Layno, 6 Vet. App. 465. Nevertheless, even assuming that the appellant and her representative are competent to opine on this medical matter, the Board finds that the specific, reasoned opinion of the VA examiners are of greater probative weight than these more general lay assertions. As noted above, the examiners reviewed and considered the evidence of record, including their statements, and provided medical opinions with supporting rationale relying on medical training, knowledge, and expertise. Based on the foregoing, the Board finds that a preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. Because the preponderance of the evidence is against the appellant's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for the cause of the Veteran's death is not warranted. II. Burial Benefits A burial allowance is payable under certain circumstances to cover some of a deceased veteran's burial, funeral, and transportation expenses. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1700. If a veteran's death is not due to service-connected causes, a sum may be paid to cover the burial and funeral expenses of the deceased veteran and the expense of preparing the body and transporting it to the place of burial if one of the following conditions is met: (1) the veteran was in receipt of VA pension or compensation (or but for the receipt of military retired pay the veteran would have been in receipt of compensation) at the time of death; (2) the veteran had an original or reopened claim for either benefit pending at the time of death, and certain evidentiary criteria are met; or (3) the veteran served during a period of war, or was discharged or released from active service for a disability incurred or aggravated in the line of duty, and his or her body is being held by a State, and the body is unclaimed and there are insufficient resources in the veteran's estate to cover burial and funeral expenses. 38 U.S.C. § 2302 (a); 38 C.F.R. § 3.1705(b). Under 38 C.F.R. § 3.1705(b)(1), a burial allowance is payable for a veteran who was receiving VA pension or disability compensation on the date of death. In this case, the Veteran was in receipt of VA compensation for his service-connected major depressive disorder at the time of his death. In August 2015, VA notified the appellant that she was to be paid the $300 non-service connected burial benefit. She was paid this benefit on August 31, 2015. In May 2016, the appellant submitted an application for burial benefits. VA considered this application as a claim for additional non-service connected burial benefits, as she was previously granted $300 in non-service connected burial benefits in August 2015. Under 38 C.F.R. § 3.1709(b)(2), expense incurred to transport a veteran's remains for burial in a national cemetery will be reimbursed if the veteran was receiving service-connected disability compensation on the date of death. The submitted funeral bill showed that the appellant paid $580 in transportation costs to transport the Veteran's remains to the Jefferson Barracks National Cemetery. In May 2016, VA granted the appellant $580 for transportation costs because the Veteran was buried at a national cemetery. The May 2016 notification letter informed the appellant of the decision and also indicated that VA was unable to award plot or interment allowance because the Veteran was buried at a national cemetery. The appellant appealed the May 2016 decision. She did not state why she believed that she was due additional burial benefits. There is no evidence that the appellant paid any transportation expenses in excess of the $580 that she was reimbursed in May 2016. The law also provides for the payment of plot or interment allowance in certain circumstances. A claim for entitlement to a plot or interment allowance is subject to the following conditions: (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. §§ 3.1707(b) or (c) are met. The Veteran is considered to have been a "veteran" for VA purposes such that he was eligible to have been buried in a national cemetery (see 38 C.F.R. § 38.620(a) and 38 C.F.R. § 3.1701). However, the record reflects that the Veteran was, in fact, buried at a national cemetery. In this regard, the appellant's application for benefits clearly states that the Veteran was buried at the Jefferson Barracks National Cemetery. Consequently, the Board finds that the legal requirements for entitlement to a plot or interment allowance have not been met, as one of the threshold requirements are not satisfied. In conclusion, the evidence does not indicate that the conditions for additional non-service connected burial benefits, set forth in 38 C.F.R. §§ 3.1700-3.1713, have been met. ORDER Service connection for the cause of the Veteran's death is denied. Additional non-service connected burial benefits are denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs