Citation Nr: 21072382 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-15 846 DATE: December 3, 2021 ORDER Entitlement to non-service-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran died in November 2018 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. The evidence of record does not demonstrate that the appellant incurred costs for the Veteran's burial expenses. 3. 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 FINDINGS AND CONCLUSION The Veteran served on active duty from January 1953 and January 1955. He passed away in November 2018. His surviving spouse is the appellant in this matter. 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 and had incurred expenses for the Veteran's burial. 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). Based on the Veteran's death certificate, he died of natural causes from respiratory failure and intracerebral hemorrhage on November 2, 2018 at the Vanderbilt Hospital in Nashville. He was cremated at Richlawn Crematory and was buried at the Veterans' cemetery in Hopkinsville, KY (Kentucky Veterans Cemetery West Memorials) See VA 21-530 Application for Burial Benefits. The appellant has asserted that she incurred the expenses of the Veteran's burial, however, the claims file does not contain an itemize bill or expense report showing the total costs incurred by her. She is listed as the 'informant' on the cremation permit. She has not provided proof that she paid for the burial expenses. See 38 C.F.R. § 3.1702 (c)(1), (2). It is the appellant's contention that the Veteran was air lifted from Southern Tennessee Regional Health to the Vanderbilt Hospital due to bleeding in the brain. Upon arrival, he was placed on life support but ultimately died shortly after. She indicated that VA paid for the air flight and all medical expenses. Therefore, the Veteran should be considered "under VA care" at the time of his death. See March 2019 Notice of Disagreement. For burial allowance purposes, the term "hospitalized by VA" means (1) admission to a VA facility for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C. § 1710 or 1711(a); (2) admission (transfer) to a non-VA facility for hospital care under the authority of 38 U.S.C. § 1703 (pertaining to non-VA facilities which have contracted with VA to furnish hospital care or medical services); (3) admission (transfer) to a nursing home for nursing home care at the expense of the United States; or (4) admission (transfer) to a State nursing home for nursing home care with respect to which payment is authorized under 38 U.S.C. § 1741. 38 U.S.C. § 2303(a)(2); 38 C.F.R. § 3.1706 (b). In attempts to assist the Veteran with her claim, AOJ contacted the fee services department at VA Community Care to check whether the Veteran's medical expenses were paid at the time of his death at Vanderbilt Medical Center. The representative indicated that while a claim for benefits were filed, there was no evidence that the Veteran was "at VA expense as of the date of his death." See May 2019 VA 21-0820 Report of General Information. Later in August 2019, AOJ reached out to the VA Community Care again and found that the claim filed near the time of the Veteran's death was in fact, rejected. See August 2019 VA 21-0820 Report of General Information. 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. Moreover, the record shows that the Veteran was 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. It has not been shown that at the time of his death, his medical expenses were paid by VA. 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 Kentucky Veterans Cemetery West. 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 state cemetery. Because the Veteran was not buried at a national cemetery, reimbursement for transportation expenses is not available. Kelli A. Kordich 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.