Citation Nr: 0811202 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-10 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to nonservice-connected burial benefits. ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served on active duty from February 1964 to January 1969. The veteran died in December 2002, and the veteran's widow is the appellant. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to nonservice-connected burial benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran died in December 2002 and was buried on December [redacted], 2002. 3. The appellant's application for nonservice-connected burial benefits was received by the RO on December 29, 2004. CONCLUSION OF LAW The criteria for payment of nonservice-connected burial benefits have not been met. 38 U.S.C.A. §§ 2302, 2303 (West 2002); 38 C.F.R. §§ 3.1600, 3.1601 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Decision Burial allowances are payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. § 3.1600 (2007). If a veteran's death is not service-connected, and the claim for reimbursement or direct payment of burial and funeral expenses is made under 38 C.F.R. § 3.1600(b), the claim must be received by VA within two years after the permanent burial or cremation of the body. 38 U.S.C.A. § 2304 (West 2002); 38 C.F.R. §§ 3.1600(b); 3.1601(a) (2007). In this case, the veteran died in December 2002 and was buried on December [redacted], 2002. The death certificate listed the immediate cause of death as metastatic neuroendocrine carcinoma to the liver from an unknown primary. The Board notes that at the time of his death, the veteran was service- connected for residuals of a fractured lumbar spine; however, the appellant has not claimed that death was due to the veteran's service-connected disability. As such, entitlement to nonservice-connected burial benefits is available only if a claim is received within two years of the burial. See 38 C.F.R. § 1600(b). In this case, the RO received the appellant's Application for Burial Benefits on December 29, 2004. As her application was not received within two years of his burial, her claim must be denied. 38 U.S.C.A. § 2304 (West 2002); 38 C.F.R. § 3.1601(a) (2007). The Board notes that the appellant contends that she did in fact file her application for burial benefits within two years of the veteran's burial. In a February 2005 personal statement, she stated that she mailed her application for burial benefits on December 26, 2004. Thereafter, in a March 2006 personal statement, the appellant explained that she actually mailed her application on December [redacted], 2004, and expected that her application would be received by the RO on December 28, 2004. She stated that the application was mailed from the "Denver Metro Area" using a Denver address, and the delay was caused by the United States Postal Service. The Board has considered the appellant's contentions, but finds no legal basis for her entitlement to burial allowance under the law, regardless of whether she mailed her application on December 26, 2004, or December [redacted], 2004. Because the record shows her claim was not received by the RO until December 29, 2004, more than two years after the veteran's burial, VA is expressly precluded by regulation from paying for the veteran's burial expenses. Although the appellant asserts that her application was mailed on December [redacted], 2004 within the two year period, the controlling date is that of the receipt of the application by VA, with no exceptions provided for by regulation. See 38 U.S.C.A. § 2304; 38 C.F.R. § 3.1601(a). While sympathetic to the appellant's frustration, the Board is nevertheless bound by the law establishing specific burial benefit regulations, including strict filing timeliness guidelines, and is mandated to rule accordingly. In a case such as this one, where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the appellant's claim for nonservice-connected burial benefits is denied. II. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in her possession that pertains to the claim. The VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. The VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). VA will refrain from providing assistance in obtaining evidence where the claimant is ineligible for the benefits sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility. 38 C.F.R. § 3.159(d). When there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the appellant in substantiating his or her claim, VCAA does not apply. 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Moreover, this decision results in a denial of nonservice-connected burial benefits and any failure to provide notice as to the effective date and rating is harmless error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As previously stated, in this case, the law is dispositive, and eligibility for nonservice-connected burial benefits is precluded based upon the appellant's application not being received within two years of the veteran's burial; therefore, eligibility for nonservice-connected burial benefits must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to nonservice-connected burial benefits is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs