Citation Nr: A21019822 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 200312-74771 DATE: December 13, 2021 ORDER Entitlement to non-service-connected burial benefits is denied. Entitlement to plot or interment allowance is denied. Entitlement to reimbursement of transportation expenses is denied. FINDINGS OF FACT 1. The appellant was the Veteran's Caregiver, who filed the application for burial benefits, which was received by VA in February 2019 and August 2019 (corrected). 2. The Veteran died in December 2018 from non-service-connected malignant neoplasm of the bladder at a home; he did not die at a VA facility or VA-funded facility or while en route to VA or VA-funded treatment or an examination. 3. The Veteran had no service-connected disabilities at the time of his death; his death has not been deemed service-connected; the Veteran was not in receipt of VA pension or compensation benefits during his lifetime; his service connection claims pending at the time of his death were not meritorious, based on evidence then of record or constructively of record; and his body was not placed in custody of the State at the time of his death. 4. The appellant submitted a Power of Attorney provided by the Veteran dated December 2014, but it does not indicate that the appellant is the current executor or administrator of the estate of the deceased Veteran and the appellant has not asserted that she is acting for such estate. 5. While the Veteran's Caretaker asserts his remains were unclaimed, there is no evidence provided that shows that there is no next of kin or other person claiming the remains of the deceased veteran; and there are sufficient resources available in the Veteran's estate to cover the burial and funeral expenses. 6. VA had not received a receipt detailing the requested burial and transportation costs pursuant to 38 C.F.R. § 3.1703(b)(2). CONCLUSIONS OF LAW 1. The criteria for entitlement to nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-1713. 2. The criteria for entitlement to plot or internment burial benefits have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-1713 3. The criteria for entitlement to reimbursement for transportation expenses have not been met. 38 U.S.C. §§ 2302, 2303, 2305; 38 C.F.R. §§ 3.1700-1713. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the Alabama Army National Guard from November 1956 to June 1965 with documented periods of active duty from June 11, 1963 to June 16, 1963 and from September 10, 1963 to September 12, 1963. Unfortunately, the Veteran died in December 2018. The appellant was the Veteran's Caregiver. The decision on appeal was issued in January 2020. In a March 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Evidence Review docket. Therefore, the Board may only consider the evidence that was of record at the time of the agency of original jurisdiction (AOJ) decision on appeal and in the 90 days subsequent to the receipt of Form 10182. See 38 C.F.R. § 20.301 (AMA regulations state that the record closes 90 days after receipt of Form 10182 under the Evidence Lane). Therefore, the Board may only consider the evidence of record 90 days after the receipt of the March 2020 Form 10182. See 38 C.F.R. § 20.301. In this case, while the Board notes that the appellant signed the form as March 27, 2020, the date of receipt on the form indicates it was received at VA's Evidence Intake Center on March 12, 2020. Therefore, the date the record closed was June 10, 2020. By way of history, the Board issued a decision in July 2020, denying the claims. The appellant appealed the July 2020 decision to the United States Court of Appeals for Veterans Claims (CAVC or "Court") in May 2021; whereas the parties filed a Joint Motion for Remand (JMR) in which they agreed that the claims should be vacated and remanded back to the Board. Specifically, to provide an adequate analysis as to the Veteran's pending claims at the time of his death; whether the appellant was acting as the current executor or administrator of the Veteran's estate; and as to whether the Veteran's remains were unclaimed. The Board also notes that the appellant's attorney has submitted two requests for a Board hearing subsequent to the 2021 CAVC decision; however, this request is invalid. As discussed above, the appellant selected the Evidence Lane in the 2020 Form 10182, and 38 C.F.R. § 20.202(c)(2) only allows switching dockets in certain scenarios, none of which have been met here. The case must stay on the Evidence submission docket. Specifically, a Board hearing can only be requested by filing a 10182 requesting one initially, or by requesting and being granted a docket switch to the Hearing Docket. Here, there was no request to switch dockets within a timely period. The appellant's attorney attempted to submit another Form 10182 in January 2021, which was within one year of notice of the January 2020 decision, but the Board had already decided the case, so that request was invalid. The case stays on the Evidence docket post-CAVC and the Board can only consider evidence of record at the time of the decision and evidence submitted within 90 days of the March 2020 receipt of VA Form 10182. Under the AMA, there is no legal right to switch dockets, request a hearing, or submit additional evidence following a CAVC appeal. Instead, the appellant may file a Supplemental Claim and submit or identify any new and relevant evidence her attorney mentioned in the letter requesting a hearing. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to non-service-connected burial benefits, to include plot and internment and transportation allowance The appellant, who served as the Veteran's Caretaker prior to his death, asserts that entitlement to burial benefits, to include a plot or interment allowance, and reimbursement of transportation expenses are warranted. The Board initially notes that the evidence indicates the Veteran did not die as a result of a service-connected disability or disabilities. The appellant filed a VA Form 21P-530 in February 2019 and noted that she was seeking burial benefits as a result of death due to service-connected conditions. However, in August 2019, the appellant submitted an updated VA Form 21P-530, indicating on her application that she wished to apply for burial benefits for death caused due to nonservice-connected conditions. See VA 21P-530 Application for Burial Benefits, February 2019; August 2019. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and non-service-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. (The appellant's claim for burial benefits has been pending since August 2019, i.e., after the effective date of the rule change on July 7, 2014). Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and old provisions, with due consideration to the effective date of the changes and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the new regulations, in effect at the time the claim was filed. Claims for a burial allowance may be executed only by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses." See 38 C.F.R. § 3.1702(b)(3). Likewise, a claim for a plot allowance may be executed by "[t]he person(s) whose personal funds were used to defray the cost of the plot or interment expenses." See 38 C.F.R. § 3.1702(c)(1). Entitlement to VA burial benefits is available under three scenarios, as outlined in 38 C.F.R. § 3.1600. (1) Service-connected burial benefits are warranted when the Veteran died as a result of a service-connected disability; (2) nonservice-connected burial benefits are warranted (a) when the Veteran was in receipt of VA pension or compensation, (b) when the Veteran had an original claim for compensation pending at the time of his death, if there is sufficient evidence of record to support an award of compensation prior to the date of his death; or (c) in certain circumstances when the Veteran's body is being held by the State; and (3) when the Veteran dies during a hospitalization at a VA facility or at a facility paid for by VA or while on route to VA or VA-funded treatment or examination. See 38 C.F.R. § 3.1705. First, the Board notes that the Veteran was not service connected for any disability during his lifetime, and the appellant has not sought service connection for the cause of the Veteran's death (and the evidence of record does not suggest that the Veteran's death was service connected). Accordingly, the laws and regulations pertinent to burial benefits for service-connected deaths are not applicable. Second, as noted above, the appellant may be awarded nonservice-connected death burial benefits if the Veteran was in receipt of VA compensation or pension at the time of his death, had a meritorious claim for benefits pending at the time of his death, or if his body was held by the State and certain other requirements are met. As the Veteran was not in receipt of VA compensation or pension benefits at the time of his death, burial benefits may not be awarded on this basis. As to whether the Veteran had a meritorious compensation claim pending at the time of his death, in November 2018, one month prior to his death, a Board decision remanded his claims for service connection for eyesight disability, hearing loss, tinnitus, asthma, COPD, heart disability, and SMC to obtain evidence constructively of record at the time of the Veteran's death (namely service treatment and personnel records) in order to determine if the Veteran's service connection claims, pending at the time of his death, were meritorious. See 38 C.F.R. § 3.1705(c); 38 C.F.R. § 3.1000 (d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993) (stating that evidence to be considered includes evidence constructively in VA's possession on or before the date of Veteran's death, including service treatment records and reports of VA treatment). Indeed, pursuant to the Board's remand directives, the RO associated the entirety of the Veteran's available service treatment and personnel records with the Veteran's claims file, as well as received a private medical opinion dated in November 2018, received in December 2018, the same date of the Veteran's death. However, a review of these records fails to suggest that the Veteran's claims seeking service connection for eyesight disability, hearing loss, tinnitus, asthma, COPD, heart disability, and SMC were indeed meritorious. The Veteran's service treatment records fail to reflect findings related to, or diagnoses of, any of the claimed conditions. Although the Board acknowledges the 2018 private medical opinion, the opinion is wholly inadequate and conclusory. The examiner stated that each of the claimed conditions are "service-related" with absolutely no rationale and no meaningful discussion of the Veteran's STRs or the circumstances of his service, or why the doctor had concluded the conditions were related to service. Rather, the opinion was more based on providing the doctor's opinion on what each condition's disability rating should be; but as noted, the Veteran was not in receipt of service connection for any disability. Again, the entirety of the nexus "opinion" was that each condition was "service related." Accordingly, the Board concludes that entitlement to nonservice-connected burial benefits based on evidence of a meritorious service connection claims pending at the time of the Veteran's death is not warranted. In addition, while the appellant did file a claim for substitution of the Veteran's aforementioned claims, she was advised that she was not an eligible claimant in April 2019, and she did not appeal that decision. Further, a claim for substitution is not included in an application for burial benefits. Shields v. Brown, 8 Vet. App. 346, 349 (1995) (holding that an application for burial benefits is not in and of itself an application for DIC benefits or accrued benefits). The Board acknowledges that the appellant asserts she was acting as the current executor or administrator of the Veteran's estate. VA will pay burial benefits upon the death of a veteran who is unclaimed to the first living person to file, to include the executor or administrator of the estate of the deceased veteran. See 38 C.F.R. § 3.1702(b). If no executor or administrator has been appointed, VA may pay burial benefits based on a claim filed by a person acting for such estate who will distribute the burial benefits to the person or persons entitled to such distribution under the laws of the veteran's last State of residence. In the case of a veteran whose remains are unclaimed, VA will pay the person or entity that provided burial services and transportation subject to the limitations prescribed in §§ 3.1708 and 3.1709. In this case, there is no evidence in the file providing such, other than the appellant checking off a box on her revised August 2019 application. Although the appellant submitted a Power of Attorney provided by the Veteran in January 2020, dated in December 2014, it does not indicate that the appellant is the current executor or administrator of the estate of the deceased Veteran and the appellant has not asserted that she is acting for such estate. See December 2014 Power of Attorney; 38 C.F.R. § 3.1702(v). Furthermore, while the appellant checked off that the Veteran's remains were unclaimed on her application, the Board notes that there is no indication the Veteran's remains were unclaimed as there is no evidence provided that shows that there is no next of kin or other person claiming the remains of the deceased veteran; and that there were not sufficient resources available in the veteran's estate to cover the burial and funeral expenses. See 38 C.F.R. § 3.1708. On the contrary, the January 2020 decision explicitly stated that "there are sufficient resources available in the Veteran's estate to cover the burial and funeral expenses." Importantly, the Veteran was buried in January 2019, and the appellant states that she bore the cost of the Veteran's funeral and cremation expenses; however, she has not submitted a receipt for reimbursement of those expenses. In order to pay burial, plot, and transportation costs, VA must receive a receipt showing who paid the costs, the name of the deceased veteran, the specific transportation expenses incurred, and the dates of the services rendered. See 38 C.F.R. § 3.1703(b)(2). Here, in her application for burial benefits, the appellant indicated she had incurred expenses for the Veteran's burial. However, she did not provide an itemized cost for the funeral or the plot, to include transportation; rather, she only marked "yes" to incurring costs associated with the burial in her application for Burial Benefits. The Board notes that no receipt was received with the application or prior to the record closing in her AMA decision. As VA did not and has not received a receipt pursuant to the requirements of 38 C.F.R. § 3.1703(b)(2), the claim as a matter of law must be denied. Moreover, as the Veteran's body was never held by the State, this basis for awarding burial benefits is also not available. The third and final basis for awarding VA burial benefits requires evidence that 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 the purpose of examination, treatment, or care. See 38 C.F.R. § 3.1706(b), (d). The appellant asserts that the Veteran was under her care at the time of his death. Further, the record reflects that the Veteran was not en route to receive treatment or undergo an examination at the time of his death, and he died at his usual residence, not a medical facility, and not under hospice care funded by VA. Accordingly, burial benefits under this provision are not available. Finally, the appellant is not eligible for a plot or interment allowance. Regulations for a plot or interment allowance state entitlement to such an allowance is predicated on entitlement to burial benefits in general. See 38 C.F.R. § 3.1707. As entitlement to burial benefits is not warranted, the additional allowance of a plot or interment allowance is similarly not warranted. Regardless of the above findings, the Veteran was not buried in a national cemetery or other cemetery controlled by the United States. His death certificate indicates that he was buried at Peterstown Cemetery, which is not a national cemetery, or a cemetery controlled by the United States. 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, as previously explained. Nor was he discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty, 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 Board finds that the legal requirements in any event for entitlement to a plot allowance have not been met. As for transportation allowance, under 38 C.F.R. § 3.1705(1), VA may reimburse for transportation expenses related to burial in a national cemetery under 38 C.F.R. § 3.1709 if eligibility is based on a pending claim for, or award of, disability compensation, or eligibility for disability compensation but for receipt of military retired pay, rather than a claim for, or award of pension. However, as previously noted, the Veteran is buried at a private cemetery and does not qualify for burial benefits under the eligibility criteria of 38 C.F.R. § 3.1709. Furthermore, again, the appellant failed to provide a receipt showing who paid the costs, the name of the deceased veteran, the specific transportation expenses incurred, and the dates of the services rendered. See 38 C.F.R. § 3.1707(b)(2). Thus, payment of transportation expenses is also not warranted. The Board sympathizes with the appellant for her loss and acknowledges that she may have incurred expenses associated with the death of the Veteran. However, under the circumstances of this case, the appellant's claim for burial benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 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. For the reasons set forth above, the Board concludes that the preponderance of the evidence is against the appellant's claim seeking burial benefits; thus, there is no reasonable doubt to resolve on the appellant's behalf, and the award of burial benefits, to include plot or internment allowance and transportation allowance is not warranted and the claims are denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.