Citation Nr: 20056448 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 17-24 496 DATE: August 26, 2020 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The appellant, the Veteran’s surviving spouse, paid for the Veteran’s burial expenses and filed a timely claim for VA burial benefits in June 2016. 2. The Veteran died in March 2016 from cardiac respiratory arrest due to arterial hypertension as a consequence of diabetes mellitus from congestive heart failure at his home; the Veteran was not admitted to a VA facility or private facility with prior VA authorization and at VA expense for the purpose of examination, treatment or care. 3. At the time of his death, the Veteran was not in receipt of VA compensation or pension benefits (or retired military benefits in lieu of VA compensation or pension benefits); although he had claims for VA compensation pending at the time of his death, evidence did not result in compensation. CONCLUSION OF LAW The criteria for nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1700-1713 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1955 to October 1957. He died in February 2016. The appellant is his surviving spouse. 1. Entitlement to nonservice-connected burial benefits The appellant asserts entitlement to nonservice-connected burial benefits because the Veteran had claims pending at the time of his death. 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 June 2016, i.e., following 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 June 2016. It is noted, at the outset, that claims for a burial allowance may be advanced only by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses.” at 38 C.F.R. § 3.1702 (b)(3). The Veteran died in March 2016 from cardiac respiratory arrest due to arterial hypertension as a consequence of diabetes mellitus from congestive heart failure at his home. In her application for benefits, the appellant indicated that she is only applying for non-service-connected death benefits. Accordingly, only eligibility for benefits on a nonservice-connected basis will be considered. 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. An application for nonservice-connected burial and funeral 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). Specifically, if the cause of a veteran’s death is not service-connected, entitlement is based upon the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation (or (2) but for the receipt of military retirement pay would have been in receipt of compensation; or,) (3) the veteran had an original claim for either benefit 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, (4) in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, (5) 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 (or a political subdivision of a State), and the Secretary determines, (i) that there is no next of kin or other person claiming the body of the deceased veteran, and (ii) that there are not available sufficient resources in the veteran’s estate to cover burial and funeral 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 dies 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). The appellant’s June 2016 claim for burial benefits was timely filed within two years of the Veteran’s death in March 2016; however, the Board finds that none of the criteria for payment of nonservice-connected burial benefits under C.F.R. §§ 3.1705 and 3.1708 are met. Here, the Veteran was not receiving VA compensation or pension at the time of his death. Prior to his death, in a March 2013 rating decision, the agency of original jurisdiction (AOJ) granted service connection for residual burn scar left lateral thigh and assigned an initial noncompensable (0 percent) rating; and denied reopening a claim for service connection for asthma. The Veteran timely filed a notice of disagreement (NOD). He died in February 2016. Thus, he had an appeal pending at the time of his death. The appellant requested and was granted substitution. See August 2019 VA Memorandum. In an April 2020 statement of the case (SOC) the AOJ continued the noncompensable evaluation assigned to residual burn scar left lateral thigh, and denial of the request to reopen the previously denied claim of entitlement to service connection for asthma. Under the provisions of 38 U.S.C. § 7105, an appeal to the Board must be initiated by a NOD and completed by a substantive appeal (VA Form 9 or equivalent) after issuance of a SOC. A substantive appeal must be filed within 60 days from the date the AOJ mails the SOC to the claimant, or within the remainder, if any, of the one-year period from the date of the letter notifying the claimant of the rating decision. Here, the appellant submitted a July 2019 VA Form 9, however, this was prior to issuance of the April 2020 SOC. The appellant did not file a substantive appeal, via VA Form 9, within 60 days from the date the AOJ mailed the SOC. As such, the appeal for these claims has not been perfected. Based on the above, although the veteran had claims for benefits pending at the time of his death, evidence did not support an award for compensation. Additionally, the Veteran is not shown to have been discharged or released from active service for a disability incurred or aggravated in the line of duty nor was his body held by a State. Although the claims file confirms VA primary care treatment, the Veteran did not die at a VA facility. The certificate of death lists his place of death as his home. There is no indication that he was admitted to a VA facility, or a private facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. Based on the foregoing, the Board finds that the evidence does not indicate that the conditions for burial benefits, set forth in 38 C.F.R. § 3.1700 et seq., have been met. There is no legal entitlement to VA burial benefits in this case, and therefore, the appeal must be denied. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.