Citation Nr: 20021786 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-12 364 DATE: March 27, 2020 ORDER Entitlement to Department of Veterans Affairs (VA) burial benefits based on a nonservice-connected death is granted. REMANDED Entitlement to VA burial benefits based on a service-connected death is remanded. FINDINGS OF FACT 1. The Veteran died in October 2014 and was buried the following month. 2. The appellant’s application for burial benefits was received in April 2015, within one year of the Veteran’s burial. 3. The appellant personally incurred costs related to the Veteran’s funeral. 4. Subsequent to the Veteran’s death, in a June 2015 rating decision, entitlement to special monthly pension (SMP) based on the Veteran’s need for aid and attendance was granted, for accrued benefits purposes, effective as of August 29, 2014. CONCLUSION OF LAW The criteria to establish entitlement to burial benefits based on a nonservice-connected death 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 in the United States Army from February 1951 to February 1953. He died in October 2014 at the age of 84. The appellant is the Veteran’s surviving spouse. Entitlement to VA burial benefits based on a nonservice-connected death is granted. Where a Veteran’s death is not service-connected, a burial allowance to assist with the burial and funeral expenses, to include a plot or interment allowance and reimbursement of expenses for transporting bodily remains 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, where the cause of a veteran’s death is not service-connected, entitlement to a burial allowance is based upon the following conditions: (1) at the time of death, the Veteran was in receipt of compensation or pension (or but for the receipt of military retirement pay would have been in receipt of compensation); or, (2) the Veteran had an original claim for compensation or pension pending at the time of his 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 evidence of record on the date of death to show entitlement; or (3), there is no next of kin or other person claiming the remains of the deceased Veteran and the funds of the Veteran’s estate are insufficient to cover burial expenses. See 38 U.S.C. § 2302(a); 38 C.F.R. §§ 3.1705(b), (e); 3.1708(b), (c). Here, the appellant’s application for burial benefits was filed within one year of the Veteran’s burial and, as such, was a timely application for the benefits sought. Further, it is uncontroverted that the appellant personally incurred costs related to the Veteran’s burial and she has submitted receipts showing the same. Finally, the Veteran had multiple claims pending at the time of his death. Ultimately, following the filing of the present claim for burial benefits, entitlement to special monthly pension based on the regular need for the aid and attendance of another person was granted, for accrued benefits purposes, effective August 29, 2014. Rating decision, June 2015. As the Veteran was therefore entitled to pension prior to the date of his death, and the appellant personally incurred costs related to his burial, the criteria to establish entitlement to nonservice-connected burial benefits have been met. 38 C.F.R. § 3.1705(b)(3)(i). Accordingly, the appeal seeking nonservice-connected burial benefits is granted. REASONS FOR REMAND Entitlement to VA burial benefits based on a service-connected death is remanded. Regarding the claim of entitlement to burial benefits on the basis of a service-connected death, the appellant submitted a timely notice of disagreement in January 2016, expressing disagreement with the December 2015 administrative decision denying burial benefits, and explicitly raised the pending claims for service connection at the time of the Veteran’s death in the context of her burial benefits disagreement. However, the statement of the case issued in January 2017 addressed only the appeal for burial benefits on the basis of a nonservice-connected death. As such, the Board finds that a remand is required for the Agency of Original Jurisdication to issue a statement of the case addressing burial benefits sought on the basis of a service-connected death. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). To this end, the appellant requested to be substituted as claimant after the death of the Veteran in his claims seeking service connection for dementia, among other issues, that was pending at the time of his death. The evidence currently before the Board does not confirm that the Agency of Original Jurisdiction has made the initial substitution eligibility determination and notified the appellant of that decision in compliance with 38 C.F.R. § 3.1010(e). This is relevant in the present appeal before the Board in so far as a greater monetary amount of burial allowance benefits is warranted on the basis of a service-connected death as opposed to a nonservice-connected one. Furthermore, although a decision was reached in regard to service connection for dementia for accrued purposes in the January 2017 rating decision, the evidentiary standard differs in claims adjudicated on the basis of accrued benefits versus substitution. For this reason, the Board grants the appeal for burial benefits based on a non-service connected death herein, but finds that the appeal for burial benefits based upon a service-connected death is not yet ripe for appellate adjudication until the substitution determination and appropriate notification to the appellant has been provided. The matters are REMANDED for the following action: 1. Address the appellant’s pending request for substitution. (Continued on the next page)   2. Send the appellant and her representative a statement of the case that addresses the claim of entitlement to VA burial benefits based on a service-connected death. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue of burial benefits on the basis of a service-connected death should then be returned to the Board for further appellate consideration. Karen 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.