Citation Nr: 21063580 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-29 546 DATE: October 14, 2021 ORDER The claim of entitlement to nonservice-connected burial benefits is granted. FINDING OF FACT In November 2014, the Veteran passed away in his home while under the care of VA-contracted home hospice care. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected burial benefits have been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from June 1962 to June 1964. He passed away in November 2014. His partner, the appellant in the present matter, filed a claim for nonservice-connected burial benefits in January 2015. The instant matter is on appeal from a February 2015 decision. The appellant initially requested a hearing before a Veterans Law Judge; however, she did not report for the scheduled hearing in July 2021. She did not present good cause to excuse her absence. As such, the appellant's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704. 1. The claim of entitlement to nonservice-connected burial benefits 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. 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, which were in effect at the time the appellant's claim was filed in January 2015. At the outset, 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 November 2014 and the appellant filed her claim for burial benefits in January 2015. 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 death. Accordingly, her application was timely. The record also reflects that the Veteran passed away in his home while receiving hospice care, and the appellant incurred expenses related to his burial. The appellant contends that she is entitled to nonservice-connected burial benefits as that hospice care was paid for by VA, and thus constituted qualifying VA care. VA Medical Center records reflect the Veteran's discharge to hospice care at home, and the appellant provided documentation from VA showing referral to hospice, as well as billing to VA for hospice services rendered. In sum, the Veteran passed away in November 2014, and, at the time of his death, he remained under the care of the contracted home hospice service pursuant to 38 U.S.C. § 1703(a). 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. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.