Citation Nr: 21069347 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-49 350 DATE: November 18, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. Entitlement to a burial allowance based upon a nonservice-connected death is denied. Entitlement to a burial transportation reimbursement benefit is denied. Entitlement to a plot or interment allowance is denied. REMANDED Entitlement to DIC benefits based upon service connection for the cause of the Veteran's death is remanded. Entitlement to a burial allowance based upon a death claimed as service-connected is remanded. FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for one disability, hearing loss, evaluated as noncompensably or zero percent disabling. He was not receiving any VA pension or disability compensation at the time of his death. 2. The Veteran was not evaluated as totally disabled due to service-connected disabilities at any time preceding his death. 3. The Veteran was not a former prisoner of war. 4. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran's death. 5. 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. 6. The Veteran was not discharged from active service for a disability incurred or aggravated in the line of duty. 7. The Veteran was not buried in a national cemetery. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to DIC benefits under 38 U.S.C. § 1318. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 2. The criteria are not met for entitlement to nonservice-connected burial benefits. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. 3. The criteria are not met for a burial plot or interment allowance. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1707. 4. The criteria are not met for reimbursement of burial transportation expenses. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1709. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1983 to April 1992. He died in March 2016. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating and administrative decisions issued in January 2017. In July 2021, the appellant testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the appellant's hearing testimony is considered as evidence in this appeal. 1. Entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. Under 38 U.S.C. § 1318, DIC benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death was service-connected, even though the veteran died of nonservice-connected causes, if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was "entitled to receive," compensation for service-connected disability that (1) was continuously rated as totally disabling for the 10 years immediately preceding death; (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty; or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the veteran was a former prisoner of war (POW) who died after September 30, 1999. 38 U.S.C. § 1318; 38 C.F.R. § 3.22(a). The total rating may be schedular or may be a total disability rating based on unemployability (TDIU). 38 C.F.R. § 3.22(c). In this case, it is undisputed that the Veteran did not have a total disability rating by VA at any time prior to his death for any duration. In addition, there was no claim for disability compensation benefits pending at the time of his death. As here, where the facts are not in dispute and the law itself is dispositive, the Board must deny the claim based on the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to a burial allowance based upon a nonservice-connected death is denied. 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. 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). At the time of his death in March 2016, service connection had been granted for the Veteran's hearing loss disability, evaluated as zero percent disabling. 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. Therefore, neither of the first two conditions for eligibility for this benefit are met. The third condition is not met because the Veteran's remains were not unclaimed. He was buried by his family. Finally, although the physical site of the Veteran's death is not listed on the official certificate of death, in her October 2016 application for VA burial benefits, the appellant explicitly declined to seek benefits based upon a death occurring at a VA medical center, nursing home under VA contract, or other VA facility. There is no indication in the record that the Veteran died at such a facility; it is instead reflected that the Veteran died while an inmate in a county jail. As, on these facts, there is no legal basis to award burial benefits based upon a nonservice-connected death, the appellant's claim must be denied as a matter of law. 3. Entitlement to a plot or interment allowance is denied. A plot allowance to cover the cost of the final site of interment of the Veteran's remains may be payable, but only under certain circumstances. 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1707. The appellant must have incurred plot or interment expenses relating to the purchase of a burial plot for a deceased veteran if the veteran is buried in a cemetery other than a State veterans cemetery or a national cemetery, and at least one of the following criteria must also be met: (1) a veteran is eligible for a burial allowance under § 3.1705, burial allowance based on non-service-connected death; (2) a veteran is eligible for a burial allowance under § 3.1706, burial allowance for a veteran who died while hospitalized by VA; (3) a veteran was discharged from active service for a disability incurred or aggravated in line of duty; (4) or the veteran, at the time of his or her discharge from active service, had a disability, shown by official service records, which in medical judgment would have justified a discharge for disability. 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). Here, the Veteran died in March 2016 and as reported by the appellant, his bodily remains were buried in a local cemetery other than a state veterans cemetery, national cemetery, or other cemetery owned by the federal government. Although a final burial location was identified, and the appellant stated that she incurred expenses for the Veteran's burial, she did not provide a receipt or any other evidence to confirm that she personally incurred expenses relating to the purchase of a burial plot for the deceased Veteran. Furthermore, as discussed above, a burial allowance based upon a nonservice-connected death is denied and the Veteran was ineligible for a burial allowance under § 3.1705, the Veteran did not die while hospitalized by VA, and he was not discharged from active service for a disability incurred or aggravated in line of duty, nor does evidence show he had a disability at the time of his discharge from active service which would have justified a discharge for disability. In sum, there is no legal basis to award a burial plot allowance and the appellant's claim must be denied. 38 C.F.R. § 3.1707(d). 4. Entitlement to burial transportation reimbursement is denied. For a transportation allowance 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, the appellant states that the Veteran's remains were buried in a local cemetery which is not a national cemetery. See Application for burial benefits, October 2016. Because the Veteran was not buried in a national cemetery, reimbursement for transportation expenses is not available. 38 C.F.R. § 3.1709. The Board must deny the claim based on the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown. REASONS FOR REMAND 1. Entitlement to DIC benefits based upon service connection for the cause of the Veteran's death is remanded. It is undisputed that the Veteran died by suicide. See Certificate of Death, May 2016. The appellant asserts that the Veteran's suicide was essentially attributable to an undiagnosed and/or untreated posttraumatic stress disorder (PTSD) incurred during the Veteran's active military service. The appellant has asserted that she has the professional qualifications necessary to competently diagnose her late husband's psychiatric condition because she is a clinical therapist who specializes in trauma. See, e.g., Board hearing transcript, July 2021; Statement in support of claim, April 2017. To render a factual finding about the appellant's competence to offer such a diagnosis, the Board requires additional detail about her professional licensure(s), education, and training. The Board also notes that evidence the appellant submitted in July 2021 to support her claim, specifically, a letter from Mr. GR, a licensed professional counselor, who reviewed documents pertinent to the Veteran and was asked by the appellant to formulate a diagnostic impression based on the information he was provided, is incomplete and missing the critical elements necessary for the Board's review. Specifically, the faxed document is missing pages 4 and 5, which in context would have been the pages to contain an actual opinion offered. Upon remand, the appellant should be given the opportunity to correct this clerical error regarding the submitted evidence. Finally, although undisclosed by the appellant, the record indicates that the Veteran's death by suicide occurred in jail while facing multiple serious federal and state criminal charges. He was indicted on federal charges in the weeks immediately preceding his death. The context surrounding the Veteran's place and manner of death is directly relevant to this appeal because the appellant seeks monetary benefits based upon a purported relationship between the cause of the Veteran's death and his prior military service. The Board cannot make a fully-informed decision on the issue of service connection for the cause of the Veteran's death because, as discussed above, the opinion from Mr. GR is not of record, and to date, no VA examiner has opined whether an acquired mental health disability subject to service connection was an immediate or underlying cause of the Veteran's death, or a contributory cause of his death. See 38 C.F.R. § 3.312. 2. Entitlement to a burial allowance based upon a claimed service-connected death is remanded. Because a decision on the remanded issue of service connection for the cause of the Veteran's death is a foundational matter upon which a burial allowance based on a service-connected death is predicated, the issues are inextricably intertwined. A remand of the claim for service-connected burial benefits is also required. The matters are REMANDED for the following action: 1. Contact the appellant to request a full description of her professional licensure(s), education, experience, and training as they relate to her competence to diagnose mental disorders and their causation or etiology for her late husband. 2. Notify the appellant that her July 2021 faxed document was incomplete (missing pages) and allow her the opportunity to re-submit a complete copy of that evidence. 3. Obtain a medical opinion from a VA psychiatrist or psychologist to determine whether by exercise of sound judgment, without recourse to speculation, and after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, his death by suicide was attributable to a mental disorder incurred or aggravated by his active service. In so doing, the examiner is asked to consider the entirety of the credible evidence in the claims file and respond to each of the following in sequential order: (a) During his lifetime, did the Veteran's symptoms meet the criteria for a diagnosis of PTSD or other mental disorder that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)? Why or why not? If sufficient information is not available to render a posthumous diagnosis as such, please explain that conclusion. (b) If PTSD is diagnosed, please address how the diagnostic criteria are met and opine whether it is at least as likely as not related to a claimed in-service stressor (occurrence of which may then be subject to verification by VA according to established procedures). (c) If a diagnosable personality disorder and PTSD were found to be present, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. (d) If any acquired psychiatric disorder(s) other than PTSD are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the documented instances in the Veteran's service treatment and personnel records regarding worry due to separating from the military, in-service referrals to an anger control group and marital counseling, and an October 1988 nonjudicial punishment proceeding for a physical altercation with his former wife. (e) If a diagnosable mental disorder is found to have existed at the time of the Veteran's death that was incurred during, aggravated by, or otherwise attributable to the Veteran's active service, then the examiner is asked to determine whether it is at least as likely as not (likelihood of 50 percent or more) that such a mental disorder was the principal or a contributory cause of the Veteran's death by suicide. As a reminder, a contributory cause of death is one inherently not related to the principal cause, but one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. To this end, the examiner should discuss the implications, if any, regarding the context of the Veteran's pending criminal charges and status as an inmate in March 2016 as one or more underlying causes of his death by suicide. The Board recognizes that the complex, posthumous, and retrospective nature of the medical questions involved here will require significant work on the part of the medical examiner. Full and thoroughly explained answers to each of the questions to the best of the examiner's ability will prevent delays in adjudication and are very much appreciated. S. C. Krembs 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.