Citation Nr: 0812073	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  05-37 266	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to nonservice-connected burial benefits.


ATTORNEY FOR THE BOARD

David S. Ames, Associate Counsel


INTRODUCTION

The veteran served on active duty from January 1945 to 
October 1945.  He died in March 2004 and the appellant is his 
surviving spouse.

This matter comes properly before the Board of Veterans' 
Appeals (Board) on appeal from a rating decision by the 
Department of Veterans Affairs (VA) Regional Office in St. 
Louis, Missouri (RO).


FINDINGS OF FACT

1.  The veteran died in March 2004.

2.  At the time of his death, the veteran was not receiving 
VA compensation or pension benefits.

3.  There was no claim for compensation or pension pending at 
the time of the veteran's death.

4.  The veteran was not discharged from service due to a 
disability incurred in or aggravated by service and he had a 
next of kin.

5.  The veteran did not die while in a VA medical center, 
domiciliary, or nursing home, or at a facility under contract 
with VA, or while traveling under proper prior authorization 
and at VA expense to a specified place for the purpose of 
examination, treatment or care.


CONCLUSION OF LAW

The criteria for entitlement to a nonservice-connected burial 
allowance have not been met.  38 U.S.C.A. §§ 2302, 2303, 5107 
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.1600, 3.1605 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In November 2000, the Veterans Claims Assistance Act of 2000 
(VCAA) was signed into law.  See 38 U.S.C.A. §§ 5100, 5102, 
5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006).  VA 
has issued regulations implementing the VCAA.  38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326 (2007).  However, the law, 
and not the evidence, is dispositive in the claim on appeal.  
The United States Court of Appeals for Veterans Claims 
(Court) has held that when the law, and not the underlying 
facts or development of the facts are dispositive in a 
matter, the VCAA can have no effect on the appeal.  Manning 
v. Principi, 16 Vet. App. 534, 542 (2002); Smith v. Gober, 14 
Vet. App. 227 (2002) (VCAA has no effect on appeal limited to 
interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 
143 (2001) (VCAA not applicable where law, not factual 
evidence, is dispositive); see also VAOPGCPREC 5-2004.  
Therefore, the Board finds that no further action is 
necessary under the VCAA and that the case is ready for 
appellate review.

The veteran was in VA care from March 10, 2004 to March 17, 
2004.  He was then discharged to his home for home hospice 
care.  On March 22, 2004 the veteran experienced a medical 
emergency for which hospitalization was sought.  The VA 
Medical Center (VAMC) in Columbia, Missouri was contacted, 
but no beds were available to take the veteran.  He was 
subsequently transported to a private medical facility and 
died on March 23, 2004.

A burial allowance is 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; 38 C.F.R. § 3.1600.  Where, as here, the 
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 (or 
but for the receipt of military 
retirement pay would have been in receipt 
of compensation); or

(2) The veteran has an original or 
reopened claim for either benefit pending 
at the time of the veteran's death, and

(i) In the case of an original claim 
there is sufficient evidence of record 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 the 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; and

(4) The applicable further provisions of 
this section and §§ 3.1601 through 
3.1610.

38 C.F.R. § 3.1600(b); see 38 U.S.C.A. § 2302(a).

At the time of the veteran's death, he was not in receipt of 
pension or compensation nor did he have an original or 
reopened claim for pension or compensation pending.  The 
veteran was also not discharged or released from active 
service for a disability incurred or aggravated in the line 
of duty and he had a next of kin.  Accordingly, burial 
benefits are not warranted under 38 C.F.R. § 3.1600(b).  In 
addition, the veteran did not die while "en route" to a 
destination.  Accordingly, burial benefits are not warranted 
under 38 C.F.R. § 3.1605.  38 C.F.R. § 3.1605(a), (e).

As noted above, burial benefits are also available for a 
person who dies from nonservice-connected causes while 
properly hospitalized by VA in a VA facility (as described in 
38 U.S.C.A. § 1701(3)) or in a non-VA facility (as described 
in 38 U.S.C.A. § 1701(4)) for hospital care under the 
authority of 38 U.S.C.A. § 1703.  38 C.F.R. § 3.1600(c); see 
38 U.S.C.A. §§ 1701, 1703 (West 2002).  In this case, the 
veteran died in a private medical facility, not a VA 
facility.  As such, the only way benefits can be authorized 
is if the non-VA facility in question met the authorizing 
criteria of 38 U.S.C.A. § 1703.

For burial allowance purposes, the term "hospitalized by VA" 
means authorized admission to a VA facility for hospital, 
nursing home, or domiciliary care; authorized admission 
(transfer) to a non-VA facility for hospital care under the 
authority of 38 U.S.C.A. § 1703 (pertaining to non-VA 
facilities which have contracted with VA to furnish hospital 
care or medical services); authorized admission (transfer) to 
a nursing home for nursing home care at the expense of the 
United States; or authorized admission (transfer) to a State 
nursing home for nursing home care with respect to which 
payment is authorized under law.  38 U.S.C.A. § 2303(a)(2); 
38 C.F.R. § 3.1600(c).  The term "VA facility" means 
facilities over which VA has direct jurisdiction; government 
facilities for which VA contracts; and public or private 
facilities at which VA provides recreational activities for 
patients.  38 U.S.C.A. § 1701(3).

In this respect, the evidence of record does not show, and 
the appellant does not contend, that at the time of the 
veteran's death he was admitted to a VA facility for 
hospital, nursing home or domiciliary care.  See 38 U.S.C.A. 
§§ 1710, 1711 (West 2002).  Furthermore, the private medical 
facility that the veteran was admitted to was not under 
contract with VA.  See 38 U.S.C.A. § 1703.  However, the 
veteran did request admission to a VA facility prior to his 
death and was turned away due to a lack of bed space.  
Furthermore, the evidence of record shows that VA has 
reimbursed the appellant for some of the medical expenses 
incurred at the private medical facility in accordance with 
the Veterans Millennium Health and Benefits Act, Public Law 
106-177.  The question therefore is whether these actions 
constitute an authorized admission to a non-VA facility for 
the purposes of 38 C.F.R. § 3.1600(c).

In this case, the appellant called the Columbia VAMC on March 
22, 2004, and was informed by VA staff that there was 
insufficient room at the VAMC and therefore, the veteran 
should be transported to the nearest civilian hospital.  The 
United States Court of Appeals for Veterans Claims has 
determined that a physician's direction diverting care to 
another facility even though VA care has been requested does 
not constitute "authorization" as defined in 38 U.S.C.A. §§ 
1703 or 1710 for VA payment or reimbursement of private 
medical expenses.  Malone v. Gober, 10 Vet. App. 539, 542 
(1997).  Accordingly, the Columbia VAMC's direction to divert 
care to a private medical facility does not constitute 
"authorization" for the purposed of 38 U.S.C.A. § 1703.

While the appellant has been reimbursed for some of the 
medical expenses incurred at the private medical facility, 
this reimbursement was in accordance with the Veterans 
Millennium Health and Benefits Act.  That Act specifically 
allows reimbursement in situations in which "[c]are and 
services not previously authorized were rendered."  38 
C.F.R. § 17.120 (c)(2007).  Accordingly, the very fact that 
reimbursement was provided to the veteran under the Veterans 
Millennium Health and Benefits Act further demonstrates that 
the veteran's treatment at the private medical facility did 
not constitute an "authorized" admission for the purposes 
of 38 C.F.R. § 3.1600(c).  Accordingly, nonservice-connected 
burial benefits are not warranted.

The evidence of record does not satisfy the threshold legal 
eligibility requirements for the burial benefits sought in 
this appeal.  As the disposition of this claim is based on 
the law, and not on the facts of the case, the claim must be 
denied based on a lack of entitlement under the law.  Sabonis 
v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to nonservice-connected burial benefits is 
denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs