Citation Nr: 20005891 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 17-38 381 DATE: January 23, 2020 REMANDED Entitlement to a Department of Veterans Affairs (VA) burial allowance based on a service-connected death is remanded. Entitlement to accrued benefits is remanded. REASONS FOR REMAND 1. Entitlement to a VA burial allowance based on a service-connected death is remanded. 2. Entitlement to accrued benefits is remanded. The appellant in the present appeal is the adult daughter of the Veteran. Some procedural history is necessary to understand the context of this case. The Veteran died in May 2001. At that time, a claimant referred to as LN herein, the surviving spouse of the Veteran and mother of this appellant, sought Dependency and Indemnity Compensation (DIC), death pension and accrued benefits, as well as burial benefits based upon her husband’s active service. A burial allowance based on the Veteran’s nonservice-connected death, and transportation expenses were granted to LN. VA notification letter, August 2001. The decision as to whether the surviving spouse was entitled to a higher burial allowance based on a service-connected death was expressly stated to remain pending. Id. Shortly thereafter, a rating decision was issued granting service connection for the cause of the Veteran’s death, thus establishing entitlement to the higher amount of burial allowance based on a service-connected death. See Rating decision & notice letter, August 2001. There is no evidence however, that payment of the higher rate of burial benefits based on a service-connected death was ever made to LN. Subsequently, the surviving spouse was awarded an amended death pension based on her requirement for aid and attendance, and a finding of incompetency was proposed. Rating decision, February 2011. The claimant, LN, was notified that her benefits from the granted special monthly pension entitlement were being withheld due to the proposed incompetency finding and that retroactive payment would be made once a fiduciary was appointed to handle her financial affairs. VA notice letter, February 2011. The surviving spouse, LN, died the following month in March 2011. The record reflects that the daughter of LN then submitted a claim seeking burial and accrued benefits, with supporting documents submitted in August 2011. See, e.g., Statement of the case (SOC), May 2017; VA notice letter, February 2013. However, at the time of the Board’s present review, these documents, including this appellant’s application for benefits, funeral home receipts, a home health care journal, and bills documenting care for LN do not appear to be associated with the electronic claims file. Additional legal documents describing the appellant’s fiduciary responsibilities on behalf of LN and her estate are described in the SOC, but are also not associated with the claims file. These records are particularly pertinent to the facts of this case and must be sought. In particular, for claims such as this that were filed prior to July 7, 2014, a valid claimant for burial benefits can be the executor or administrator of the estate of the person who paid the expenses of a veteran’s burial. 38 C.F.R. § 3.1702(c)(iii) (2018). Thus, where documents reflect that LN paid this Veteran’s funeral expenses, if the present appellant is the executrix of LN’s estate, she may be eligible to receive the higher amount of burial allowance for the Veteran based on a service-connected death on behalf of LN’s estate. Id.; see also Funeral home contract, May 2001 (showing payment by LN for Veteran’s funeral service). Also, where death of a claimant surviving spouse occurred after December 1962, periodic monetary benefits, such as death pension, to which a payee was entitled at her death under existing ratings or decision or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person be paid with only so much of the accrued benefit payable as may be necessary to reimburse the person who bore the expense of the surviving spouse’s last sickness or burial. 38 U.S.C. § 5121(a)(6) (2012); 38 C.F.R. § 3.100(a)(5) (2018). Thus, the evidence received in August 2011 as referenced but not present in the claims file should be sought to establish the appellant’s potential eligibility for the benefits sought. The matters are REMANDED for the following action: (Continued on the next page)   1. Ensure that all evidence referenced in the May 2017 Statement of the Case is associated with the electronic claims file and available for appellate review. If necessary, ask the appellant to submit or re-submit documentation that she is the executrix of the estate of LN, and/or that she personally bore the expenses of LN’s last sickness or burial. Documentation of the amount of such expenses should also be sought as needed. 2. After the above development, and any additionally indicated development has been completed, readjudicate the issues on appeal, including the matter of the appellant’s substitution on behalf of LN, as appropriate. If a benefit sought is not granted to the appellant’s satisfaction, send the appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.