Citation Nr: A21020612 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210222-137438 DATE: December 29, 2021 ORDER Entitlement to nonservice-connected burial benefits for plot or interment allowance is granted. FINDINGS OF FACT 1. The appellant, the Veteran's son, paid for the Veteran's burial expenses, and filed a timely claim for VA burial benefits in August 2020. 2. The Veteran died in June 2020 from end stage liver disease while in the care of and at a VA facility. 3. The Veteran was eligible to be buried at a national cemetery but was not; the appellant bore the costs of the Veteran's plot. CONCLUSION OF LAW The criteria for entitlement to burial benefits of plot or interment allowance have been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active-duty service from July 1976 to July 1979. He died in June 2020. The appellant is his son. The decision on appeal was issued in October 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In a February 2021 VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant elected the Direct Review lane. As such, only evidence submitted prior to the October 2020 decision will be considered in this decision. The Boards notes that evidence was added to the claims file during a period of time when new evidence was not allowed. This includes the appellant submitting additional receipts and copies of issued checks he used to pay for the funeral expenses. However, because this evidence was added to the claims file after the decision, and because the appellant elected the direct review option, and, in accordance with the modernized review system, the Board can consider only the evidence of record at the time of the October 2020 decision, which is the subject of this appeal for direct review. Therefore, the Board may not consider that evidence. See 38 C.F.R. § 20.300. That notwithstanding, the Board finds that while the appellant added new evidence, some of this evidence was already of record and the rest simply clarified the initial receipt and bill he submitted in August 2020. 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. See 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. See 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; (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 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). Based on the foregoing, the Board finds that the criteria for payment of nonservice-connected burial benefits under C.F.R. §§ 3.1705 and 3.1708 have been met. First, the Veteran died in June 2020 from end stage liver disease while at a VA facility (See death certificate) and the appellant's August 2020 claim for burial benefits was timely filed within two years of the Veteran's death in June 2020. Next, 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). In the August 2020 application for burial benefits, the Veteran's son submitted a claim for reimbursement for funeral home expenses in the amount of $796.00, plot allowance in the amount of $796.00, and transportation expenses in the amount of $495.00. In August 2020, the appellant submitted a funeral bill which shows a bill sent to the appellant and paid by the appellant in the amount of $5,314.12.00. This included professional services in the amount of $3,960.00; transportation expenses in the amount of $545.00; and urn package expense of $641.12. The appellant included a receipt from a check written for $1,500.00 for the plot. Therefore, the appellant has demonstrated that he incurred costs related to the Veteran's burial. As such, in light of the Veteran's admission to a VA facility, the claim for entitlement to nonservice-connected burial benefits is granted. See 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1706(b), (d). As noted in the October 2020 decision, the appellant was awarded burial benefits in the amount of $796.00 and transportation allowance in the amount of $545.00. While the appellant was initially granted $796.00 for plot allowance in September 2020, the October 2020 decision denied it. This appeal is specifically for the denial of the plot allowance. The law provides for the payment of plot or interment allowance in certain circumstances. A claim for entitlement to a plot or internment allowance is subject to the following conditions: (1) the deceased veteran is eligible for burial in a national cemetery; (2) the veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States; and (3) the applicable further provisions of 38 C.F.R. § 3.1707(b) or (c) are met. Here, the Veteran was eligible for burial in a national cemetery because he had an honorable discharge from active-duty service. His certificate of death lists his place of burial as Saints Peter and Paul Cemetery, a private cemetery, and the appellant has demonstrated that he bore expenses related to the Veteran's burial plot. See August 2020 Funeral Bill/Expenses. Further, as noted above, the Veteran met the eligibility requirements for nonservice-connected burial benefits. As such, the criteria for plot or interment allowance have also been met. See 38 C.F.R. § 3.1707(c)(2). However, the requested benefit of burial plot or interment allowance was denied previously in this case because the appellant responded "NO" to the question "Did you incur expenses for the Veteran's plot or internment?" in item number 17A on the 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. See 38 C.F.R. § 3.1700(b). For this reason, the terms burial and cremation may be used interchangeably here. In all, the Board finds the appellant's statement on the benefit application form to be outweighed by the August 2020 receipt to the cemetery and funeral home that shows the charges for the Veteran's funeral services, to include the plot at the cemetery, were paid in full, listing the responsible party as the appellant. The Board affords greater evidentiary weight to the receipt for payment, than to a mere check box on an administrative form which appears to have not been marked in error here. On this basis, the Board finds that the appellant incurred expenses for the Veteran's plot in a private cemetery. Thus, and as the other criteria are met to establish entitlement to a nonservice-connected burial allowance because the Veteran is shown to have been in receipt of VA compensation at the time of his death and died while at a VA medical facility, the appeal for a nonservice-connected plot and internment allowance is granted. 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.