Citation Nr: A21020486 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 210811-197458 DATE: December 23, 2021 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACTS 1. The Appellant failed to file for burial benefits within two years of the Veteran's cremation. 2. 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 or pension benefits); nor does the evidence demonstrate that he had a claim for VA compensation or pension benefits pending before VA at that time; and he was not admitted to that facility with prior VA authorization and at VA expense for the purpose of examination, treatment or care. 3. The Veteran was not buried at a national veterans' cemetery. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1971 to January 1973. He died in January 2017. The Appellant is his surviving spouse. The decision on appeal was issued in a July 2021 notification letter and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In July 2021, the Appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a February 2021 decision which denied entitlement to non-service-connected burial benefits. In July 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, denying the Appellant's claim. The decision did not explicitly address whether new and relevant evidence had been received, stating only that the claim remained denied. Although the July 2021 notification letter did not discuss it, the Board finds that there was an implicit finding that new and relevant evidence was received and the claim was readjudicated on the merits. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Appellant elected the Direct Review option. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. The Board notes that in the February 2021 decision letter, the AOJ found that the Appellant submitted evidence showing that she is an eligible claimant who may receive burial benefits and that she incurred the costs of his burial. See February 2021 Notification Letter. The Board is also bound by this favorable finding. 38 C.F.R. § 3.104(c). The Appellant is seeking burial benefits following the Veteran's death. Based on the Veteran's death certificate, he died on January [REDACTED], 2017 at his nursing home in Daytona Beach, Volusia County, Florida. He was subsequently cremated that same month. 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." 38 C.F.R. § 3.1702 (b)(3). Here, the Appellant has indicated she incurred the expenses for the Veteran's cremation and disposition and has submitted a receipt showing the same. The Appellant has also expressly stated in her Application for Burial Benefits that she was not claiming entitlement to service-connected burial benefits. As the Appellant has not claimed that burial benefits are due based on a service-connected death, nor does the record raise such a contention, the Board herein considers only whether nonservice-connected burial benefits are warranted. A burial allowance is payable under certain circumstances to cover some of a deceased veteran's burial, funeral, and transportation expenses. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1700. A burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. Burial allowance is also warranted for a Veteran who died while hospitalized by VA or who died while traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care. 38 C.F.R. § 3.1706. 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 as she was responsible for the Veteran's burial expenses. She was also responsible for the Veteran's plot and interment expenses. He was neither buried at a national or state veterans cemetery. She was, however, not responsible for any transportation expenses to his final resting place. See February 2021 VA 21-530 Application for Burial Benefits. Of note, for VA benefit purposes, the term "burial" means all the legal methods of disposing of the remains of a deceased person, including, but not limited to, cremation, burial at sea, and medical school donation. 38 C.F.R. § 3.1700 (b). For this reason, the terms burial and cremation may be used interchangeably here. However, an application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the deceased. 38 U.S.C. § 2304; 38 C.F.R. § 3.1703 (a). This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1600 (f). In applying the facts of the case, the Appellant failed to file for burial benefits within two years of the Veteran's cremation as specified under 38 C.F.R. § 3.1703 (a). The Board also finds that the Appellant's claim must be denied as the Veteran was not receiving VA compensation or pension, nor did he have any pending claims for benefits at the time of his death. 38 C.F.R. § 3.1705(b). Additionally, 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. Likewise, there is no evidence that the Veteran died at a VA facility, as the death certificate confirms the Veteran passed away at a private nursing home facility. There is no indication that he was admitted to this facility with prior authorization and at VA expense. Therefore, the Board finds that entitlement to burial benefits is not warranted. The Appellant is also 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. As regards 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 Veteran was cremated, and final resting place is not listed as a national cemetery. Moreover, the Appellant's application made clear that she was not responsible for the Veteran's transportation expenses from the place of death to the final resting place. Therefore, reimbursement for transportation expenses is not available. See 38 C.F.R. § 3.1709. The Board sympathizes with the Appellant for her loss and acknowledges that she incurred expenses associated with the death of the Veteran, who served his country honorably. However, under the circumstances of this case, the Appellant's claim for burial must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (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.