Citation Nr: A21017463 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 210105-180412 DATE: October 28, 2021 ORDER Entitlement to non-service-connected burial benefits is granted. FINDING OF FACTS 1. The Veteran died in November 2020. 2. The Veteran did not receive disability compensation or have a pending claim for compensation but was receiving non-service-connected pension benefits at the time of his death. 3. The Veteran was not buried in a national cemetery. CONCLUSION OF LAW The criteria for entitlement to non-service-connected burial benefits have been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1709. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1952 to September 1954. He passed away in November 2020. The Appellant is the Veteran's niece and guardian/representative. The decision on appeal was issued in November 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Appellant is seeking burial benefits following the death of the Veteran. On the Appellant's VA Form 21-530 (Application for Burial Benefits), she indicated that she was seeking a non-service-connected death burial allowance, that the Veteran passed away at an assisted living home, and that she incurred expenses for the Veteran's burial, although the exact amount was not detailed. In a November 2020 notification of decision, burial benefits were denied to the Appellant when the AOJ found that she was not an eligible claimant because burial benefits have already been paid to an eligible claimant. In reviewing the record, the evidence of record does not contain any indication that burial benefits have been paid to any claimant. VA has not received any other applications for burial benefits regarding the costs of this Veteran's funeral and burial expenses. Additionally, there is no record of an automatic payment of burial benefits to an eligible surviving spouse under 38 C.F.R. § 3.1702 (a). Under 38 C.F.R. § 3.1702 (b)(3), VA will pay burial benefits to a single representative of the categories in paragraph (b)(1) of this section. VA will not divide applicable burial benefits among claimants; it is the responsibility of the recipient to distribute benefits as may be required. The Board notes that the Appellant is listed as the informant on the Veteran's death certificate. See Death Certificate received in January 2021. She also indicated that she arranged and incurred the costs for his cremation. Moreover, she has been recognized as the Veteran's VA Appointed Fiduciary. See VA 21-555 Certificate of Legal Capacity to Receive and Disburse Benefits and Fee Authorization. As such, the Board finds that the Appellant was a person acting for the Veteran's estate and therefore meets the criteria of an eligible claimant under 38 C.F.R. § 3.1702 (b)(3). The question that remains is whether non-service-connected burial benefits is warranted. A burial allowance is payable under certain circumstances to cover some of a deceased veteran's burial, funeral, and transportation expenses. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1700. A burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. Burial allowance is also warranted for a Veteran who died while hospitalized by VA or who died while traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care. 38 C.F.R. § 3.1706. Based on the Veteran's death certificate, the Veteran died on November [REDACTED], 2020 at Woolridge Manor Assisted Living in Upper Marlboro, Maryland. He was cremated at Chesapeake Crematory on November [REDACTED], 2020. A funeral service was held at Pridgen Funeral Home in Lanham, Maryland. Overall, the record shows that the Veteran died in a non-VA facility. The record does not show, and the Appellant does not contend, that at the time of the Veteran's death, he was in receipt of VA compensation benefits. There is no indication in the record that he was receiving service-connected compensation or had a pending claim for service-connected compensation. The record does, however, show that the Veteran was in receipt of non-service-connected pension. The November 1997 rating decision shows that he was awarded non-service-connected pension and special monthly pension based on the need for aid and attendance. As the Veteran was receiving VA pension, Appellant may be awarded the maximum allowance specified in 38 U.S.C. § 2302 for burial and funeral expenses, unless the expenses incurred were less than that amount. See 38 C.F.R. § 3.1705 (a), (b). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, Associate 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.