Citation Nr: 21065468 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-35 939 DATE: October 26, 2021 ORDER Entitlement to a burial allowance based on a nonservice-connected death is denied. Entitlement to a burial plot or interment allowance is denied. Entitlement to reimbursement for burial transportation expenses is denied. FINDINGS OF FACT 1. The Veteran served in the American Merchant Marine in Oceangoing Service during the period of armed conflict occurring between December 7, 1941 and August 15, 1945, which is considered active military, naval, or air service for purposes of benefits administered by the Department of Veterans Affairs (VA). 2. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 3. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran's death. 4. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 5. The Veteran's body was not unclaimed, and the appellant incurred expenses related to the Veteran's burial. 6. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for the purpose of examination, treatment, or care; he died at a private hospice care facility. 7. The Veteran is not buried in a national cemetery or a State veterans cemetery; he is buried in a private cemetery. CONCLUSIONS OF LAW 1. The criteria for entitlement to nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. 2. The criteria for entitlement to a burial plot or interment allowance have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1707. 3. The criteria for reimbursement of burial transportation expenses have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1709. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS From July 1943 to June 1945, the Veteran served in the American Merchant Marine in Oceangoing Service, under the United States Coast Guard, which is considered active military, naval, or air service for this period for the purpose of administration of VA benefits. See Department of Defense (DD) Form 214; 38 C.F.R. § 3.7(x)(15). He died in March 2016. The appellant is the adult daughter of the Veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 administrative decision that denied entitlement to burial benefits. In July 2021, the appellant testified at a hearing before the undersigned. A transcript of the appellant's hearing testimony is considered as evidence in this appeal. Initially, the Board acknowledges the appellant's statement regarding non-receipt of memorial items from VA. These items may include a headstone, grave marker, niche marker, or medallion for the Veteran's gravesite, or a burial flag or Presidential Memorial Certificate. Because the record contains no evidence that any application for these memorial items has previously been denied by VA, the Board has no appellate jurisdiction over the matter. However, additional information about obtaining memorial items from VA to honor a veteran's service may be found here: https://www.va.gov/burials-memorials/memorial-items/, and may be claimed by submitting the appropriate form for the desired item(s) following the instructions available from the listed webpage. 1. Entitlement to a burial allowance based on a nonservice-connected death is denied. The appellant seeks VA burial benefits to help recoup expenses incurred for cremation of the Veteran's bodily remains and related funeral home services. Of note, for VA benefit purposes, the term "burial" means all the legal methods of disposing of the remains of a deceased person, including, but not limited to, cremation, burial at sea, and medical school donation. 38 C.F.R. § 3.1700(b). For this reason, the terms burial, interment, or cremation may be used interchangeably in this decision. Where a veteran's death is not service connected, a burial allowance to assist with the cost of burial and funeral expenses is available, but only under certain circumstances defined by law and implementing regulations. 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). In addition, the governing regulations provide that 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). Here, at the time of his death in March 2016, the Veteran had not been granted service connection for any disability. He was not receiving any VA compensation or pension benefits and did not have any claims for VA benefits pending at the time of his death. The Veteran's remains were not unclaimed. Instead, the March 2016 funeral home receipt submitted by the appellant shows that she paid expenses related to the Veteran's cremation and related funeral home services. Further, it is uncontroverted that the Veteran died at a private hospice care facility. The Board acknowledges the appellant's report that the Veteran received medical treatment by VA, including for the prostate cancer that ultimately took his life. It is also understood that the hospice program providing his terminal care offered recognition and services specifically for veterans in their care. See Appellant's statement, September 2017; Internet document from Hospice program, September 2017 (describing participation in We Honor Veterans, a program of the National Hospice and Palliative Care Organization). The Board appreciates the honor and dignity provided by such programs. However, for the payment of monetary burial benefits by VA based upon the Veteran's physical location at the time of his death, specific criteria require that the Veteran must be hospitalized by VA, which includes admission to a VA facility, transfer, or admittance to a non-VA facility at VA expense, or other limited circumstances not applicable here. 38 C.F.R. § 3.1706. In this case, the appellant concedes that although the Veteran had received some of his medical treatment from VA, the hospice facility where he received care at the time of his death was a private facility with no indication that the care was at VA expense. Instead, the appellant states the hospice facility "was not through VA." Appellant's testimony at Board hearing, January 2021. In other words, while the Veteran's active service was recognized and honored by the hospice facility providing his care, as is appropriate and appreciated by VA, the care itself does not constitute hospitalization by VA because VA did not oversee, refer, or pay for the care provided. In all, none of the legal criteria are met to establish eligibility for a burial allowance based upon a nonservice-connected death. The appeal must be denied. 38 C.F.R. § 3.1705, 3.1706. 2. Entitlement to a burial plot or interment allowance is denied. Where a veteran's death is not connected to his or her active service, a plot or interment allowance may be payable to assist with the cost of purchasing a burial plot for a deceased veteran, but also only under certain circumstances. 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1707. Specifically, entitlement to a burial plot or interment allowance is payable to an eligible claimant based upon the following conditions: (1) the veteran is buried in a cemetery other than a State veterans cemetery or a national cemetery, and (2) the veteran is eligible for a burial allowance under § 3.1705 (burial allowance based on non-service-connected death), or (3) eligible for a burial allowance under § 3.1706 (burial allowance for a veteran who died while hospitalized by VA), or (4) the veteran was discharged from active service for a disability incurred or aggravated in line of duty, or (5) the veteran, at the time of discharge from active service, had a disability, shown by official service records, which in medical judgment would have justified a discharge for disability. Id. Plot or burial plot means the final disposal site of the remains, whether it is a grave, mausoleum vault, columbarium niche, or other similar place. Plot or interment expenses are those expenses associated with the final disposition of the remains and are not confined to the acts done within the burial grounds but may include the removal of remains for burial or interment. 38 C.F.R. § 3.1707(d). In this case, as previously discussed above, the Veteran is not eligible for a burial allowance based on a nonservice-connected death, and is not eligible for a burial allowance due to death while hospitalized by VA. In addition, the evidence shows that the Veteran was discharged from active service in the merchant marine due to the end of combat hostilities, not due to disability. See DD Form 214. The evidence does not suggest, nor does the appellant contend that at the time of his discharge from active service, the Veteran had a disability shown by official service records, which would have justified a discharge for disability. As the eligibility criteria are not met, a plot or interment allowance is not available, and the appeal must be denied. 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1707. 3. Entitlement to reimbursement for burial transportation expenses is denied. Where a Veteran's death is not connected to active service, the expense of transporting the Veteran's bodily remains to the place of burial may be payable, but only under certain limited circumstances. These circumstances include where a Veteran died while hospitalized by VA as defined by 38 C.F.R. § 3.1706(b), or where other eligibility criteria are met, and a Veteran is buried in a national cemetery. 38 C.F.R. §§ 3.1705, 3.1706, 3.1709. As established above, the Veteran did not die while hospitalized by VA. He is also not buried in a national cemetery. The eligibility criteria are not met for reimbursement of burial transportation expenses, and the appeal must be denied. In closing, the Board acknowledges that the Veteran had honorable World War II service in defense of our country as a member of the Merchant Marine through the United States Coast Guard, and that the appellant incurred expenses for the Veteran's burial. However, the legal authority pertaining to VA burial benefits is prescribed by Congress and implemented by agency regulations. The Board is bound by this governing legal authority and may not grant benefits where the established eligibility criteria are not met. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). As, on these facts, there is no legal basis to award burial benefits, the appellant's claim must be denied as a matter of law because the basic eligibility criteria are not met. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). However, the denial of this appeal for monetary benefits by VA can in no way diminish the honor and sacrifice of this Veteran's service for which the Board remains deeply grateful. D. SMART Acting 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED