Citation Nr: 18101577 Decision Date: 05/07/18 Archive Date: 05/07/18 DOCKET NO. 14-41 198A DATE: May 7, 2018 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDING OF FACT At the time of his death, the Veteran was not in receipt of or entitled to VA benefits, to include for a service-connected disability, and was not hospitalized in a VA facility; his death is not shown to be the result of a service-connected disability or otherwise the result of his service. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 1703, 2303 (2012); 38 C.F.R. §§ 3.1706(b)(2), 17.121 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to December 1953. He died in July 2014. The appellant is his daughter. The appellant requested a Board hearing but failed to show for the videoconference hearing scheduled for February 2018 before a Veterans Law Judge of the Board. The RO issued two letters of notice to the appellant regarding the scheduled hearing. See Correspondences dated December 2017 and January 2018. There is no reason indicated for her failure to appear. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Burial Benefits According to the Veteran’s death certificate, the cause of death was natural causes due to complications of chronic obstructive pulmonary disease. The appellant has not alleged, nor does the evidence otherwise suggest, that the Veteran’s death was due to a service-connected condition. In fact, on her application for burial benefits in August 2014, the appellant specifically denied that the Veteran’s death was due to his service. Thus, the Board finds that only the nonservice-connected burial benefits regulations are for potential application. In this regard, where a veteran’s death is not service-connected, entitlement to nonservice-connected burial benefits is based upon the following conditions(1) the veteran was in receipt of VA pension or compensation; or (2) the veteran had an original or reopened claim for either benefit pending at the time of his death (or in the case of a reopened claim there is sufficient prima facie evidence of record on the date of the veteran’s death to show entitlement); or (3) the deceased was a veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and the body of the deceased is being held by a State. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705. VA will also grant burial benefits if a veteran dies from nonservice-connected causes while properly hospitalized by VA, in a VA or non-VA facility. 38 C.F.R. § 3.1706. At the time of his death, the Veteran was not in receipt of VA compensation or pension benefits. In fact, the record does not show he had any disability that was service-connected. Likewise, the record does not show that the Veteran had a claim for compensation or pension pending at the time of his death. Further, service department records do not show the deceased was discharged or released from active service for a disability incurred or aggravated in the line of duty, and the evidence does not indicate that the Veteran was without any next of kin, especially as the appellant in this case is his daughter. Finally, the record does not show the Veteran died while hospitalized by VA in a VA or non-VA facility or while being transported to or from such a facility. The Board has considered the appellant’s argument that she could not send the Veteran to a VA facility because he was “trach dependent.” In her substantive appeal, the appellant also stated that she “did call VA hospital.” See VA Form 9 dated December 2014. The Board understands the appellant’s argument, and sympathizes with her position: the fact that the Veteran was not hospitalized by VA at the time of his death was due to circumstances out of his and the appellant’s control, and was a consequence of medical necessity. However, the controlling legal criteria are clear and are not met in this case; the record does not show, and the appellant has not submitted, any evidence that the Veteran died while properly hospitalized by VA in a VA or non-VA facility. Therefore, based on the forgoing circumstances, non-service connected burial benefits are not warranted.   The Board acknowledges and appreciates the Veteran’s honorable military service and is sympathetic to the loss his family has suffered. The payment of burial benefits, however, is strictly based on specific statutory and regulatory guidelines, which have not been met in this case. There being no doubt to be resolved, the claim for entitlement to nonservice-connected burial benefits is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel