Citation Nr: 0508968 Decision Date: 03/24/05 Archive Date: 04/01/05 DOCKET NO. 02-08 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to non service-connected burial benefits. ATTORNEY FOR THE BOARD D. L. Wight, Counsel INTRODUCTION The veteran served on active duty from September 1956 to August 1958. He died in March 2001. The appellant is his surviving spouse. This case initially came before the Board of Veterans' Appeals (Board) on appeal of an April 2001 rating decision rendered by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2003, the Board remanded the case to the RO for further development. The requested development has been completed and the case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The veteran's active duty was from September 1956 to August 1958. 2. The veteran died in March 2001. 2. The veteran was not discharged or released from active service for a disability incurred or aggravated in the line of duty. 3. At the time of the veteran's death, service connection was not in effect for any disability, the veteran was not in receipt of pension or compensation, a claim for such benefits was not pending, and the veteran was not in a VA facility or en route thereto. CONCLUSION OF LAW The criteria for payment of non service-connected burial benefits have not been met. 38 U.S.C.A. §§ 2302, 2303 (West 2002); 38 C.F.R. §§ 3.1600, 3.1605 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations are applicable to the present appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The Act and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA is required to inform the claimant to submit any pertinent evidence in the claimant's possession. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Id. at 119. The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C.A. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id at 121. In the present case, the appellant was provided with the notice required by the VCAA and the implementing regulations by letters dated in June 2004, prior to the issuance of the November 2004 supplemental statement of the case. In that letter, the appellant was asked to provide VA with "any evidence in [her] possession that pertained to her claim." The appellant was informed of the evidence required to substantiate her claim, the information required from her to enable VA to obtain evidence on her behalf, the assistance that VA would provide to obtain evidence on her behalf, and that she should submit such evidence or provide the RO with the information necessary for the RO to obtain such evidence on her behalf. All pertinent, available evidence pertaining to the claim has been obtained. The appellant alleges that the veteran was en route to a VA medical appointment in a VA authorized ambulance when his ambulance was diverted to a private hospital where the veteran died. However, information received from the VA medical facility indicates that the veteran did not have an appointment on the date of his death. The appellant was informed of this response and asked via letter in October 2004, to provide evidence of this appointment and the ambulance service allegedly authorized by VA. The appellant did not respond to this request for information. The appellant has not identified any additional evidence that could be obtained to substantiate her claim, nor has she requested that the Board remand for further development. In sum, the Board is of the opinion that any deficiencies in the development and consideration of the claim by the RO are minor and nonprejudicial to the appellant. They do not warrant a remand and further delay of the appellate process. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria If a veteran's death is not service-connected, a certain amount may be paid toward his funeral and burial expenses including the cost of transporting the body to the place of burial, subject to the following conditions: (1) At the time of death the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or (2) The veteran had an original or reopened claim for either benefit pending at the time of his or her death, and (i) In the case of an original claim there is sufficient evidence of record on the date of the veteran's death to have supported an award of compensation or pension effective prior to the date of the veteran's death, or (ii) In the case of a reopened claim, there is sufficient prima facie evidence of record on the date of the veteran's death to indicate that the deceased would have been entitled to compensation or pension prior to date of death, or (3) 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; or (4) The applicable further provisions of this section and §§ 3.1601 through 3.1610. 38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600(b). If a person dies from non-service-connected causes while properly hospitalized by VA, there is payable an allowance not to exceed the amount specified in 38 U.S.C.A. § 2303(a) for the actual cost of the person's funeral and burial, and an additional amount for transportation of the body to the place of burial. 38 U.S.C.A. § 2303; 38 C.F.R. § 3.1600(c). When a veteran dies from nonservice-connected causes, an amount not to exceed the amount specified in 38 U.S.C.A. § 2303(b) (or if the entitlement is under 38 C.F.R. § 3.40 (c) or (d), an amount computed in accordance with the provisions of 38 C.F.R. § 3.40(c)) may be paid as a plot or interment allowance. The plot or interment allowance is payable to the person or entity who incurred the expenses, subject to the following conditions: (1) The deceased veteran is eligible for the burial allowance under paragraph(b) or (c) of this section; or (2) The veteran served during a period of war and the conditions set forth in 38 C.F.R. § 3.1604(d)(1)(ii)-(v) (relating to burial in a state veterans' cemetery) are met; or (3) The veteran was discharged from the active military, naval, or air service for a disability incurred or aggravated in line of duty (or at time of discharge has such a disability, shown by official service records, which in medical judgment would have justified a discharge for disability; the official service department record showing that the veteran was discharged or released from service for disability incurred in line of duty will be accepted for determining entitlement to the plot or interment allowance notwithstanding that VA has determined, in connection with a claim for monetary benefits, that the disability was not incurred in line of duty); and (4) The veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States; and (5) The applicable further provisions of this section and 38 C.F.R. §§ 3.1601 through 3.1610. 38 U.S.C.A. § 2303; 38 C.F.R. § 3.1600(f). When any person who had a status under any law in effect on December 31, 1957, which afforded entitlement to burial benefits dies, the burial allowance will be paid, if otherwise in order, even though such status does not meet the service requirements of 38 United States Code, Chapter 23. 38 C.F.R. § 3.954 (2001); see 38 U.S.C.A. § 2305 (West 1991). The former law provided for funeral expenses for a veteran of any war. The burial benefits provision was amended in 1981. Section 902(a) of title 38, United States Code, was amended by striking out "Where a veteran dies" and clauses (1) and (2) and inserting in lieu thereof, "When a veteran dies who was in receipt of compensation (or but for the receipt of retirement pay would have been entitled to compensation) or in receipt of pension." The amendment was made to take effect with respect to deaths occurring after September 30, 1981. Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357, 781 (Aug. 13, 1981). Analysis The veteran served after the Korean conflict and before the Vietnam era. He did not serve during a period of war. See 38 C.F.R. § 3.2 (2004). Furthermore, he was not discharged from active duty for a disability incurred or aggravated in the line of duty. During his lifetime the veteran claimed entitlement to VA nonservice-connected pension benefits for amputation of his leg. The RO denied his claim in September 1983 and he did not appeal that decision. The veteran did not otherwise claim entitlement to VA compensation or pension benefits during his lifetime, and thus had no claim pending, was not service-connected for any disability, and was not in receipt of VA pension at the time of his death. The evidence does not show that the veteran's body was being held by a State or a political subdivision thereof. The Board notes the appellant's contention that the veteran died in route to an appointment at the Ponce, Puerto Rico, VA Medical Center in an ambulance authorized by VA. She asserts that his blood sugar went down and the ambulance was sent to the nearest hospital. The veteran's death certificate indicates that he died of sepsis due to renal and cardiac failure as a consequence of his diabetes mellitus while hospitalized at the Hospital San Cristobal. Despite her contentions, information received from the Ponce VAMC indicates that the veteran did not have an appointment on the date of his death. Based on the foregoing, the Board concludes that the veteran was not properly hospitalized by VA at the time of his death, and that the veteran did not die while traveling under proper prior authorization and at VA expense to or from a specified place for the purpose of examination, treatment or care under 38 C.F.R. § 3.1605. See Osborne v. Principi, 3 Vet. App. 368 (1992). Based on the foregoing, the Board concludes that the criteria for nonservice-connected burial benefits are not met. ORDER Entitlement to non service-connected burial benefits is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs