Citation Nr: 19118656 Decision Date: 03/15/19 Archive Date: 03/14/19 DOCKET NO. 16-53 477A DATE: March 15, 2019 ORDER The claim of entitlement to nonservice-connected burial benefits is granted. FINDINGS OF FACT 1. On January 24, 2016, the Veteran died while under the care of Amedisys Hospice. 2. Earlier in January 2016, VA approved private home hospice care from Amedisys Hospice from January 7, 2016 through July 7, 2016, pursuant to 38 U.S.C. § 1703(a). CONCLUSION OF LAW The criteria for payment of nonservice-connected burial benefits are met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1975 to June 1979. He died in January 2016. The appellant was his companion. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2015 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania denied the appellant’s claim for nonservice-connected burial benefits, including a plot or interment allowance. In August 2016, the appellant filed a notice of disagreement (NOD). In September 2016, 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 November 2016. Entitlement to Burial Benefits The appellant asserts entitlement to burial benefits to 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 nonservice-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 March 2016 i.e., after 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 new regulations, in effect at the time the appellant’s claim was filed in March 2016. It is noted, at the outset, that claims for a burial allowance may be executed only by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses.” 38 C.F.R. § 3.1702(b)(3). Here, the Veteran died in January 2016 and the appellant filed her claim for burial benefits in March 2016. In her claim, the appellant expressly stated that she was not claiming that the Veteran’s death was related to service. Hence, the Board will consider the claim on appeal as one for nonservice-connected burial benefits. Where a veteran’s death is not service connected, a burial allowance to cover the burial and funeral expenses, as well as the expense of transporting the body to the place of burial may be payable, but only under certain circumstances. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705. Specifically, if the cause of a veteran’s death is not service connected, entitlement is based upon the following conditions: at the time of death, the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or, the veteran had an original claim for either benefit pending at the time of her death for which there was evidence available on the date of death to support the award for compensation or pension or, in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, 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 there is no next of kin and the veteran's estate funds are insufficient to cover expenses. See 38 U.S.C. § 2302(a); 38 C.F.R. §§ 3.1705(b), (e); 3.1708(b), (c). Alternatively, a burial allowance may be paid if a veteran died 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. § 3.1706(b), (d). An application for nonservice-connected burial and cremation 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. § 3.1703(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. § 3.1703(a). Here, the Board notes that the appellant’s claim for burial benefits was filed within two years of the Veteran’s cremation. Hence, for purposes of nonservice-burial benefits, the application was timely. The appellant incurred costs related to the Veteran’s funeral and cremation. The record also reflects that the Veteran died at his residence. However, as pointed out by the appellant in her substantive appeal, a January 2016 VA treatment record notes that the Veteran was approved for private home hospice care from January 7, 2016 through July 7, 2016, pursuant to 38 U.S.C. § 1703(a), which permits the VA Secretary to contract with non-VA facilities to provide care, when geographic or other limitations prevent the Veteran from doing so. The hospice care was furnished by Amedisys Hospice. A September 2016 VA treatment record notes that the Veteran died in September 2016, and, at the time of death, he remained under the care of Amedisys Hospice. Thus, the Board concludes that the Veteran died while under the care of a VA-contracted hospice organization, at VA’s expense and with VA’s prior authorization. Accordingly, the criteria for nonservice-connected burial benefits are met. See C.F.R. § 3.1706(b). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel