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