Citation Nr: 21067447 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-14 325 DATE: November 4, 2021 ORDER Entitlement to non-service-connected burial benefits is denied. FINDING OF FACTS 1. The Veteran died in March 2016 at a non-VA hospital and was not admitted to that facility with prior VA authorization and VA expense for the purpose of examination, treatment, or care. 2. There is sufficient evidence in the claims file before the Veteran's death to grant the Veteran's pending claim of service connection for bilateral hearing loss. 3. The evidence of record does not demonstrate that the Appellant incurred costs for the Veteran's burial expenses. 4. The Veteran was not buried in a national cemetery. CONCLUSION OF LAW The criteria for entitlement to non-service-connected burial benefits have not 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 February 1949 to February 1950. He passed away in March 2016. The Appellant is his adult child. This matter is on appeal from an August 2017 rating decision. The Board initially denied the Appellant's claim for nonservice-connected burial benefits in an August 2019 decision. The Appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court) and a Joint Motion for Remand (JMR) was submitted by both parties. The Court subsequently granted the JMR and remanded the matter for actions consistent with the JMR. In March 2021, the Board noted that the Veteran had a pending claim for service connection for bilateral hearing loss and found that the issue of substitution was not developed. It remanded the matter for AOJ to make a determination of whether the Appellant was eligible to substitute for the deceased Veteran for the purposes of continuing the claim for service connection bilateral hearing loss. In June 2021, the AOJ sent the Appellant a development letter, requesting that she complete VA Form 21P-0847, Request for Substitution of Claimant Upon Death of Claimant. However, the Appellant did not respond with the signed form and did not indicate a desire to pursue a substitution claim. The Board now finds that VA's duty to assist has been satisfied and the matter is ready for adjudication. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the Appellant's Application for Burial Benefits, she is the Veteran's daughter and requests burial benefits for a non-service-connected death. She indicated that she personally incurred expenses for his burial. She also requests benefits in the amount of $4,523.38, asserting that the private care facility which last cared for the Veteran was approved/affiliated with the VA. In an internal note dating September 19, 2017, the Appellant indicated that prior to the Veteran's death, the VAMC in Gainesville advised that she took the Veteran to Ocala Regional Medical Center and that any expenses incurred there would be taken care of. It is the Appellant's belief that VA made payments to the Ocala Regional Medical Center since she never received a bill. See September 2017 VA 21-0820 Report of General Information. The Board notes that in an updated Application for Burial Benefits, the Appellant added that she also incurred $1900.00 for the Veteran's plot, located at Glenwood Cemetery Littleton, in New Hampshire. She also indicated that she incurred another $2352.00 for transportation expenses. It is noted, at the outset, that claims for a burial allowance may be advanced only by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses." at 38 C.F.R. § 3.1702(b)(3). 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. 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. An application for nonservice-connected burial and funeral 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). Specifically, if the cause of a veteran's death is not service-connected, entitlement is based upon the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation (or (2) but for the receipt of military retirement pay would have been in receipt of compensation; or,) (3) the veteran had an original claim for either benefit 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, (4) in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, (5) 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 the body of the deceased is being held by a State (or a political subdivision of a State), and the Secretary determines, (i) that there is no next of kin or other person claiming the body of the deceased veteran, and (ii) that there are not available sufficient resources in the veteran's estate to cover burial and funeral 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 dies 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). According to his death certificate, the Veteran passed away of natural causes from hypotensive shock due to suspected intrabdominal hemorrhage from coagulopathy due to severe advanced coronary artery disease, on March 27, 2016, at the Ocala Regional Medical Center in Marion County, Florida. A funeral was held at Countryside General Home, Inc. shortly thereafter. The Appellant's June 2017 claim for burial benefits was timely filed within two years of the Veteran's death in March 2016; however, the Board finds that none of the criteria for payment of nonservice-connected burial benefits under C.F.R. §§ 3.1705, 3.1706, and 3.1708 are met. Here, 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 was his body held by a State. Additionally, the Veteran was not receiving VA compensation or pension at the time of his death. In fact, the record does not show he had any disability for which he was granted service connection for during his lifetime. However, at the time of his death, the Veteran had pending a claim for service connection claim for bilateral hearing loss. When the AOJ denied his claim in December 2015, the Veteran filed a Notice of Disagreement in February 2016. Prior to the issuance of a Statement of Case, the Veteran died in March 2016. As the Veteran had a pending claim for benefits at the time of his death, the remaining question is whether there was evidence available on the date of his death to support an award for compensation. 38 C.F.R. § 3.1705(b)(3)(i). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board finds that, resolving reasonable doubt in the Veteran's favor, evidence available on the date of his death supports an award for compensation. 38 C.F.R. § 3.1705(b)(3)(i). Here, the Veteran was examined in October 2015 and diagnosed with bilateral sensorineural hearing loss; this meets the first element of service connection. The Veteran's DD Form 214 indicated his military occupational specialty (MOS) was light weapons infantryman; therefore, the Board concedes noise exposure during his service such that the second element of service connection is met. The Veteran's claim hinged on the third element of whether there was a medical nexus between his hearing loss and service. The October 2015 examiner determined she was unable to determine if the Veteran's noise exposure during military service contributed to his current hearing loss without resorting to mere speculation because the Veteran's service treatment records were unavailable, as well "a significant history of civilian occupational noise exposure." The Board finds this opinion inadequate for decision-making purposes as it is based on the lack of treatment records and an inaccurate factual premise. The Veteran stated during the examination that although he was a truck driver, mechanic, service manager, and carpenter after service, he was "never in loud environments that much." Moreover, the Veteran stated that he was recalled to active duty only two months after separating from service in February 1950 but was found not qualified for reenlistment due to his hearing loss. The Board notes that the Veteran's service treatment records were unavailable due to a fire and through no fault of his own. There is no evidence of record to contradict the Veteran's statements about the onset of his hearing loss, and the Boards finds the Veteran was competent and credible to report the onset of his hearing loss. Resolving reasonable doubt in the Veterans favor, the Board finds that the evidence of record at the time of the Veteran's death is sufficient to grant the pending claim of service connection for bilateral hearing loss. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1705(b)(3)(i). However, the Appellant's claim for non-service connected burial benefits must still be denied as the burial and funeral expenses were not incurred by the Appellant personally. See December 2017 Funeral Bill/Expenses. The claims file does not show that the Appellant personally bore any actual expenses to cover the costs of the burial. See 38 C.F.R. § 3.1702 (c)(1), (2). The Veteran's funeral bill and expenses from Countryside Funeral Home showed V. L., the Veteran's wife, as the purchaser/payor, not the Appellant. The record shows that the Appellant only incurred the bill in the amount of $1,900.00 for the Veteran's burial plot at the Glenwood Cemetery. The Board finds that entitlement to burial allowance under 38 C.F.R. § 3.1706 is also not warranted. The Appellant also contends that the Veteran was transported to Ocala Regional Hospital under the approval of VA. However, the evidence of record is against such a finding. VA treatment records from Gainesville VAMC show that the Veteran visited that facility on March 16, 2016. However, after waiting 4 hours, he later left without being seen by any physician at the VAMC. The VA clinical Nurse Leader apologized for the long delay that occurred on March 16, 2016 and encouraged him to return if needed. At that time, the Veteran's wife indicated that after leaving the VAMC on March 16, 2016, the Veteran was admitted to Ocala Regional Hospital, where he ultimately died several days later. While the Veteran was initially evaluated at a VA facility and was later admitted to a non-VA facility for care, it has not been shown that he was transferred there by VA, or that VA had a contract with the facility for the Veteran's care. An April 2016 Gainesville VAMC treatment record noted that the Veteran was admitted to a non-VA facility (Ocala Regional Medical Center) on March 17, 2016. It also noted that the Veteran's case did not meet the 'Mill Bill criteria.' Therefore, entitlement is not permitted under 38 C.F.R. § 3.1706. Regarding a plot or interment allowance, the Veteran was not buried in a national cemetery or other cemetery controlled by the United States. The claims file shows that the Veteran was buried at Glenwood Cemetery, a private cemetery. Nevertheless, any claim for a plot allowance would still fail, as the Veteran was not eligible for a burial allowance and he did not die while admitted to a VA facility. Nor was he discharged from active military, naval, or air service for a disability incurred or aggravated in the line of duty, or for a service-connected death. In other words, a plot allowance would be precluded by other applicable provisions of 38 C.F.R. § 3.1707. Consequently, the legal requirements for entitlement to a plot allowance have not been met. As regards to transportation reimbursement under 38 C.F.R. § 3.1709, VA will reimburse the costs of transportation only if a veteran was buried in a national cemetery. Here, as stated, the Veteran was buried at a private cemetery. Because the Veteran was not buried at a national cemetery, reimbursement for transportation expenses is not available. (Continued on the next page) The Board is sympathetic to the fact that the Appellant incurred costs related to the Veteran's death and acknowledges that the Veteran had honorable service. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the AOJ nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. 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. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 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.