Citation Nr: A21016835 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 210326-147277 DATE: October 18, 2021 ORDER The claim of entitlement to nonservice-connected burial benefits is granted. FINDINGS OF FACT 1. At the time of the Appellant's application for VA burial benefits, the Veteran had a claim pending for entitlement to service connection for a back disability. 2. The evidence of record at the time of the Veteran's passing is sufficient to grant entitlement to service connection for a back disability. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected burial benefits have been met. 38 U.S.C. § 2302; 38 C.F.R. § 3.1700, 3.1705. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Marine Corps from January 1944 to August 1946, to include service in the Pacific Theatre of Operations during World War II. He passed away in January 2021, and his spouse, the Appellant in the present matter, filed a claim for nonservice-connected burial benefits in January 2021. The Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), took effect on February 19, 2019. The instant matter is on appeal from a February 2021 decision. The Appellant filed a Notice of Disagreement in March 2021 and requested Direct Review by a Veterans Law Judge. 1. The claim of entitlement to nonservice-connected burial benefits The Appellant is seeking nonservice-connected burial benefits. A burial allowance is payable under certain circumstances to cover expenses of the burial or cremation, funeral, and transportation of a deceased veteran's body to the place of burial. See 38 U.S.C. §§ 2302, 2303, 2307. If a veteran dies as a result of a service-connected disability or disabilities, certain amounts as authorized may be paid toward a veteran's funeral and burial expenses including the cost of transporting the body to the place of burial. 38 C.F.R. § 3.1704. In the present case, the Veteran was service connected for a hearing disability, and he had a pending claim of entitlement to service connection for a back disability. He passed away from natural causes, to include terminal cerebral ischemia with dementia. Thus, even upon consideration of the pending claim for a back disability, the evidence does not reflect that his passing was the result of a service-connected disability. If a veteran's death is not a result of service-connected disability or disabilities, entitlement to payment of a burial allowance is subject to the following conditions: (1) 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 (2) the veteran had an original or reopened claim for either benefit pending at the time of his death, and (i) in the case of an original claim there is sufficient evidence of record to have supported an award of compensation or pension effective prior to the date of the veteran's death. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705. In February 2021, the Appellant's claim for nonservice-connected burial benefits was denied as it was determined the Veteran was not in receipt of pension or compensation and did not have a claim pending at the time of his death. The evidence of record, however, indicates that, prior to his passing, the Veteran appealed a Rapid Appeals Modernization Program (RAMP) rating decision and requested Direct Review by a Veterans Law Judge. The appeal was not docketed, however, until recently. In this regard, 38 C.F.R. § 3.160(c) defines a "pending claim" as one that has not been finally adjudicated. Given that the appeal remained unresolved, the Board finds that the Veteran had a pending claim at the time of his death. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). Further, the evidence of record received prior to the Veteran's death was sufficient to grant the claim of entitlement to service connection for a back disability. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the disability at issue, arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted in service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In the present case, the Veteran reported injuring his back in December 1944 when a sack fell from a truck and onto his back. He stated that he blacked out and was hospitalized following the injury. He endorsed ongoing symptoms during and after service. Prior to his passing, he attempted to obtain these military hospitalization records, but was informed that such were destroyed. The service treatment records associated with the claims file are sparse, as may be expected from records from the World War II era. While a request for the Veteran's records has been associated with the claims file, the response from the National Personnel Records Center is not available. Since discharge, the Veteran reported ongoing symptoms associated with his back, including chiropractic treatment after separation. He sought treatment from a number of clinicians over the years, but the condition progressively worsened. Records reflect arthritis in a September 2001 x-ray with the condition deteriorating until his passing. Given the limited service records available through no fault of the Veteran, as well as the Veteran's multiple statements addressing his initial in-service back injury and subsequent progression of observable symptomatology, the Board finds that the Veteran satisfied a showing a continuity of symptomatology sufficient to sustain a finding of service connection for a back disability. Therefore, as the evidence of record indicates that the Veteran had a pending claim for a service-connected back disability and had submitted sufficient evidence to support an award for such, entitlement to nonservice-connected burial benefits is warranted. 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.