Citation Nr: 21067269 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-24 215 DATE: November 3, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits, to include service connection for the cause of the Veteran's death, is denied. Entitlement to burial benefits, to include a burial allowance and a burial plot or interment allowance, is denied. FINDINGS OF FACT 1. The Veteran died in January 2011 and the cause of death was pancreatic cancer. 2. In February 2016, the Appellant, the Veteran's surviving spouse, filed a claim for VA death benefits and a claim for VA burial benefits. 3. Service connection was not in effect for any disability at the time of the Veteran's death. 4. The preponderance of the evidence is against a finding that the Veteran's cause of death, pancreatic cancer, began during active service or is otherwise etiologically related to an in-service event, injury, or disease. 5. 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 benefits). 6. At the time of his death, the Veteran did not have any claims for VA compensation or pension benefits pending before VA. 7. The Veteran was not discharged from active service due to a disability incurred or aggravated in the line of duty. 8. 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. 9. The Veteran's body was not unclaimed. 10. The Veteran was not buried in a national cemetery. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1310; 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to service-connected burial benefits have not been met. 38 U.S.C. § 2302, 2303, 2307; 38 C.F.R. §§ 3.1700-3.1713. 3. The criteria for entitlement to nonservice-connected burial benefits, to include a plot or interment allowance, have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1700-3.1713. 4. The criteria for reimbursement of burial transportation expenses have not been met. 38 U.S.C. §§ 2302, 2302; 38 C.F.R. § 3.1709. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1957 to September 1960. The Veteran died in January 2011. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of July 2016 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for the Veteran's cause of death and burial benefits. In March 2020, the Board issued a decision which denied the Appellant's claim for entitlement to nonservice-connected survivor pension benefits, denied her claim for accrued benefits, and remanded the claims for service connection for the cause of death and entitlement to burial benefits, with instructions to the RO to attempt to obtain the Veteran's missing service treatment and personnel records, and to provide a memo detailing the efforts to locate such records if they were unavailable. The matter has now returned to the Board for adjudication. The Board finds there has been substantial compliance with the March 2020 remand, as the RO has undertaken the search and provided the memo required by the Board's directive. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to DIC benefits, to include service connection for the cause of the Veteran's death, is denied. The Appellant seeks entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the Veteran's cause of death. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. Thus, entitlement to DIC requires a threshold finding that the Veteran's cause of death was due to a service-connected condition. Legal Criteria To establish entitlement to service connection for the cause of a veteran's death, the evidence of record must show that a disability, injury, or illness incurred in or aggravated by service either caused the veteran's death or contributed substantially or materially to it. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the veteran's death should have been service-connected. That is, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304, 3.310. Thus, in determining whether a disability that resulted in the death of a veteran was the result of active service, the laws and regulations generally applicable to compensation for service-connected disability apply. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Establishing service connection generally requires a current disability, in-service incurrence or aggravation of a disease or injury, and a causal relationship (nexus) between the current disability and an in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. § 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. In cases of service connection for the cause of the death of a veteran, the condition that caused the veteran to die is a current disability for purposes of the service-connection analysis. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). In determining whether VA compensation is warranted for a DIC claim, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; C.F.R. § 3.102. Analysis The Veteran's death certificate reflects that he died in January 2011 and the primary cause of death was pancreatic cancer. No other contributory causes of death were listed. The Veteran's complete service treatment records (STRs) are unavailable, and it has been determined they are "fire-related" (i.e., destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973). The only medical or personnel records associated with the Veteran's file are his DD-214 and a training roster listing his name for training at Lackland Air Force Base in June 1957. In cases involving fire-related loss of records, VA has a heightened duty to assist the Veteran's spouse in developing the claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). This decision has been undertaken with that in mind. The Board finds that VA has satisfied its heightened duty to assist in the circumstances of this case. In searching for the Veteran's STRs, VA submitted a Personnel Information Exchange System (PIES) request in February 2017, and received a March 2017 reply indicating the record is fire-related, and that there are no STRs, dental records, or Surgeon General's Office (SGO) records. Also in February 2017, after receiving her Notice of Disagreement, VA notified the Appellant that further information was needed to support her claims, including any evidence of in-service illness and any private medical records. VA sent her a release form to complete, to enable VA to request private medical records, as well as a VCAA Notice Response form for her to indicate whether she intended to provide more information. The Appellant did not respond or return the forms. The Appellant was scheduled for a Board hearing in October 2019 but failed to appear at the hearing without good cause. The hearing request was deemed waived (See March 2020 Board decision). In connection with the Board's remand directives, in June 2020 VA sent a development letter to the Appellant and requested she complete NA Form 13055 and NA Form 13075 to attempt to locate the late Veteran's records in other locations. The Appellant did not respond or return the forms. In August 2020, VA requested the Veteran's claims folder to attempt to review for possible STRs and personnel records. In September 2020, VA confirmed the review of the claims folder was complete and the Veteran's claims folder was negative for any STRs. The VA notified the Appellant of these findings by letter in September 2020 and asked her to provide any records in her possession. No response was received. VA also prepared a memorandum of its findings in September 2020, as required by the Board's remand directive. As the Veteran's service records are fire-related, they are unavailable for review. Thus, there is no objective evidence showing complaints or findings of pancreatic cancer during active service. The Appellant has never contended that his pancreatic cancer began during service. The Veteran's pancreatic cancer did not manifest within one year of separation from service, and his conditions and locations of service do not otherwise fall into any of the categories of presumptive service connection. 38 C.F.R. §§ 3.307, 3.309. During the Veteran's lifetime, he never filed a claim for service connection for pancreatic cancer or for any other condition. Service connection was not established for any disability during his lifetime. His 2011 death from pancreatic cancer occurred over 50 years after his separation from active duty. Neither the Veteran during his lifetime nor the Appellant in her submissions discussed or even indicated how the Veteran's diagnosis of pancreatic cancer was or may have been related to his active service. (See, e.g., Appellant's Notice of Disagreement received September 2016; Appellant's Form 9 received May 2017). Although the Board is obligated to discuss all evidence favorable to the claimant, here there is simply no competent medical or other evidence that the Veteran's pancreatic cancer is in any way attributable to his active service. The Appellant was asked for any further information that might enable VA to obtain pertinent records from alternative sources, but she did not respond. Further, although the Appellant had the opportunity to testify at a Board hearing on the matter, she failed to appear at the hearing without good cause, and consequently waived her right to provide sworn testimony that may have shed some light on the Veteran's history and symptomatology. The Veteran's representative argued that the Veteran had filed a claim for service connection during his lifetime, as the VA utilized a "claim number" rather than the Veteran's social security number. The representative argued VA had "arbitrarily" denied service connection after concluding no claim had been filed. In fact, the Veteran did file a claim during his lifetime, but for educational benefits. The Veteran's 1967 claim for educational benefits was assigned the claim number currently associated with the Veteran's case file. That claim became final. The Veteran never initiated a claim for service connection for any condition during his lifetime, nor has there ever been an award of service connection. Neither the Veteran (who never filed a claim for service connection for any condition) nor the Appellant have identified any in-service event, illness, or symptoms that may be associated with the Veteran's pancreatic cancer. Further, there is no indication that the missing service treatment records would be beneficial to the Appellant's claim. The Appellant has never claimed the Veteran received treatment during active service for any symptoms related to the later-diagnosed pancreatic cancer. Although the Veteran's service records were destroyed in a fire, no witness has identified any in-service event or symptoms allegedly related to his pancreatic cancer disease that led to his death over 50 years after his discharge from active service. The preponderance of the evidence weighs against finding that there was any in-service event or illness that may have been associated with his later-diagnosed pancreatic cancer. The Board has carefully considered the benefit of the doubt rule in recognition of its heightened duties given the loss of the records. However, again, there is simply no indication from the Veteran during the time he was alive, nor the Appellant, nor from any other witness regarding what might have happened during service that may be associated with the Veteran's pancreatic cancer. There is no competent evidence linking the Veteran's pancreatic cancer diagnosis to his active-duty service from over four decades prior to the manifestation of his cancer. The Board finds no competent evidence indicating that the cancer that caused the Veteran's death was associated with his active service on a direct or presumptive basis. The Board also notes that as service connection is not in effect for any disability, an analysis based on secondary service connection is not for consideration here. Accordingly, the Board concludes that a nexus to service is not demonstrated. As such, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In summary, the Board finds that the preponderance of the evidence is against a finding of service connection for pancreatic cancer, i.e., against a finding that the Veteran's pancreatic cancer began during active service or is otherwise etiologically related to an in-service injury, event, or disease, and thus against a finding of service connection for the Veteran's cause of death from pancreatic cancer. Consequently, as service connection for the Veteran's cause of death is not warranted, nor was the Veteran rated totally disabled due to service-connected disabilities at the time of death, the Appellant is not entitled to DIC as his surviving spouse. 2. Entitlement to burial benefits, to include a burial allowance and a burial plot or interment allowance, is denied. The appellant seeks entitlement to burial benefits. Her original application in February 2016 indicated a request for burial benefits for a nonservice-connected death. However, in light of the claim for DIC benefits, which requested service connection for the cause of death, the Board will address entitlement to both service-connected and 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. Here, the appellant's claim for burial benefits was received in February 2016; therefore, even though the Veteran died in January 2011, the new regulations are applicable based on the date of the claim. A service-connected burial allowance for a deceased veteran is payable if the veteran died of a service-connected disability. 38 U.S.C. § 2307; 38 C.F.R. § 3.1704. The Appellant contended the cause of the Veteran's death should be service-connected. However, by this decision, the appeal as to entitlement to service connection for the cause of the Veteran's death is denied. Consequently, any claim for service-connected burial benefits must be denied as a matter of law. Sabonis v. West, 6 Vet. App. 426, 430 (1994). As such, the Board will consider only whether nonservice-connected burial benefits are warranted. Where a veteran's death is not service-connected, an allowance to cover the burial and funeral expenses ("burial allowance"), as well as the expense of a burial plot or interment ("burial plot or interment allowance"), and expenses of transporting the body to the place of burial ("transportation reimbursement") may be payable, but only under certain circumstances. 38 U.S.C. § 2302(a); 38 C.F.R. §§ 3.1700(a), 3.1705-3.1709. VA differentiates burial allowance from burial plot or interment allowance. 38 C.F.R. § 3.1700(a). The nonservice-connected burial allowance is intended to cover funeral expenses. An application for the nonservice-connected burial allowance must be filed within two years after the burial or cremation of a veteran's body. 38 U.S.C. § 2304; 38 C.F.R. § 3.1703(a). Here, the Veteran died in January 2011 and was buried shortly thereafter; the Appellant's claim was not filed until February 2016, five years after his death. The Appellant's claim for nonservice-connected burial allowance is untimely and subject to dismissal on those grounds. However, as a claim for a burial plot or interment allowance is not specifically subject to the two-year time limitation, it will be addressed on the merits. See 38 C.F.R. § 3.1703(a)(1). Therefore, for the sake of clarity, and because both allowances fall under the umbrella of burial benefits, both allowances will be addressed on the merits. The Appellant's claim for nonservice-connected burial allowance, even if it had been timely, must be denied on substantive legal grounds. If the cause of a veteran's death is not service-connected, as in this case, entitlement to a burial allowance is based upon the following conditions: at the time of death, the veteran was in receipt of VA pension or compensation (or, but for the receipt of military retirement pay, would have been in receipt of VA compensation); or, the veteran had an original claim for either such benefit pending at the time of his death for which there was evidence available on the date of death to support the award for VA 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. See 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705. Alternatively, a burial allowance may be paid if the 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 examination, treatment, or care. See 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1706(b), (d). Finally, a burial allowance is payable where there is no next of kin and the veteran's estate funds are insufficient to cover burial and funeral expenses. 38 U.S.C. § 2302(a)(2); 38 C.F.R. § 3.1708(b). In addition to a nonservice-connected burial allowance, a veteran is entitled to a nonservice-connected burial plot or interment allowance in a State veterans cemetery or another cemetery, if eligibility for a burial allowance under 38 C.F.R. § 3.1705 or § 3.1706 is established, or, if the deceased veteran was discharged or released from active military, naval, or air service for a disability which was incurred or aggravated in the line of duty, or which disability, in medical judgment, would have justified such a medical discharge. See 38 C.F.R. §§ 3.1707(b), (c). In this case, at the time of his death, the Veteran was not receiving any VA compensation or pension benefits. There were no claims for service connection or for VA compensation or pension pending at the time of his death. The Veteran died at Hospice of Citrus County, a non-VA facility. See January 2011 Florida Certificate of Death. There is no evidence that the Veteran was admitted to this facility with prior VA authorization and at VA expense, nor was his body unclaimed. Therefore, the claim for burial allowance must be denied. Regarding a plot or interment allowance, as explained above, the Veteran was not eligible for a burial allowance. See 38 C.F.R. §§ 3.1705-3.1706. 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 is there any evidence he had a disability at the time of discharge that would have justified a medical discharge for such disability). In other words, a plot or interment allowance is precluded by the applicable provisions of 38 C.F.R. § 3.1707. Consequently, the Board finds that the legal requirements for entitlement to a plot or interment allowance are not met, and any claim for plot or interment allowance must likewise be denied. Finally, although the Appellant did not specifically request reimbursement of transportation expenses for transporting the Veteran's body to the place of burial, this burial benefit is only available for eligible veterans buried in a national cemetery. 38 C.F.R. § 3.1709. The Veteran was ineligible, and was buried at Saint Charles Cemetery in New York, which is not a national cemetery. Reimbursement of transportation expenses is thus precluded. In summary, the Board finds that the Appellant is not entitled to burial benefits. Although the Board is sympathetic to the Appellant's loss and recognizes the Veteran's honorable service to his country, the Board is bound by the laws and regulations governing VA benefits. Entitlement to burial benefits is based upon specific and unambiguous requirements that have not been met in the instant case. The Board may only grant entitlement to VA benefits authorized by law and does not have authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.