Citation Nr: 0814459 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-12 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to nonservice-connected burial benefits. ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The veteran had active service from February 1943 to December 1946. He died in August 2004, and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2004 determination by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in January 2007 when it was remanded for additional development. FINDINGS OF FACT 1. The veteran was not discharged or released from active service for a disability incurred in or aggravated in the line of duty. 2. At the time of the veteran's death in 2004, service connection was not in effect for any disability; he was not in receipt of pension or compensation benefits; a claim for such benefits was not pending; and he was not in a VA facility or en route thereto. CONCLUSION OF LAW The criteria for payment of nonservice-connected burial benefits are not met. 38 U.S.C.A. §§ 2302, 2303 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1600, 3.1605 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the matter being addressed. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the issue decided herein, the appellant has been advised of VA's duties to notify and assist in the development of her claim by a July 2007 letter. Although she was provided complete VCAA notice subsequent to the October 2004 decision appealed, she is not prejudiced by such notice timing defect. The July 2007 letter from the RO explained what the evidence needed to show to substantiate the claim. It also explained that VA was responsible for obtaining relevant records from any federal agency, and would make reasonable efforts to obtain records not held by a federal agency, but that it was the appellant's responsibility to make sure that VA received all requested records not in the possession of a federal department or agency. The appellant was also advised to submit any pertinent evidence in her possession. The appellant was given ample time to respond to the July 2007 letter or to supplement the record. The claim was re-adjudicated after all essential notice was given. See November 2007 supplemental statement of the case (SSOC). The appellant is not prejudiced in this decision by any technical notice timing or content defect that may have occurred along the way, nor has it been so alleged. Regarding VA's duty to assist, all appropriate development to obtain the veteran's service records, his VA claims folder (including his post-service treatment records), and his death certificate. The appellant has not identified any pertinent evidence that remains outstanding. The Board is satisfied that evidentiary development is complete. VA's duties to notify and assist are met; accordingly, the Board will address the merits of the claim. II. Laws and Regulations The term "burial benefits" means payment of money toward funeral and burial expenses. 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. See 38 U.S.C.A. § 2302 (West 2002 & Supp. 2007); 38 C.F.R. § 3.1600 (2007). If a veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid. See 38 C.F.R. § 3.1600(a). If a veteran's death is not service connected, entitlement is based upon satisfying certain conditions. Burial benefits will be granted if 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). Burial benefits will also be paid if the veteran had an original or reopened claim for either benefit pending at the time of 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 death, or (ii) in the case of a reopened claim, there is sufficient prima facie evidence of record on the date of death to indicate that the deceased would have been entitled to compensation or pension prior to date of death. In addition, burial benefits may be granted if 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 deceased veteran's body, and (ii) there are not available sufficient resources in the veteran's estate to cover burial and funeral expenses. See 38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600(b). VA will also provide for payment of burial expenses, in certain cases, when the veteran dies from nonservice- connected causes or properly hospitalized by VA. See 38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600(c). Further, VA will pay for a plot or internment allowance, in certain cases, when the veteran served during a period of war and is buried in a state veterans' cemetery or the veteran was discharged from service for disability incurred or aggravated in the line of duty. See 38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600(f). Burial expenses are also payable if the veteran died while traveling pursuant to VA authorization and at VA expense for the purpose of examination, treatment, or care. See 38 C.F.R. § 1605(a). VA law also provides that 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 U.S.C.A. Chapter 23. 38 U.S.C.A. § 2305; 38 C.F.R. § 3.954. The provisions of 38 U.S.C.A. § 2305 and 38 C.F.R. § 3.954 were drafted as "saving clauses" to preserve the eligibility of persons entitled to burial benefits, after changes to the laws governing the benefits were made in the Veterans Benefits Act of 1957. In a precedent opinion, legally binding on VA and the Board, the General Counsel of VA held that the "saving provisions" do not exempt veterans with wartime service prior to January 1, 1958, from the current eligibility requirements. VAOPGCPREC 9-03. The General Counsel held that 38 U.S.C.A. § 2305 preserves rights individuals had under laws in effect on December 31, 1957, based on their status as members of particular units or organizations that fell within the scope of the laws defining classes of individuals potentially eligible under Chapter 23 of Title 38. The General Counsel stated specifically that veterans with wartime service prior to January 1, 1958, are not exempted by Section 2305 from the amendments to eligibility criteria for nonservice-connected burial and funeral allowance currently codified in 38 U.S.C.A. § 2302(a) by the Omnibus Budget Reconciliation Act of 1981, Public Law No. 97-35, which eliminated wartime service as a basis of eligibility. III. Facts and Analysis The veteran's Certificate of Death shows that he died at a private hospital in August 2004; that he was subsequently buried; and that his place of final disposition was Bagdad Cemetery, a privately owned local cemetery. The record does not show, nor does the appellant contend, that the veteran died while admitted to a VA facility or while traveling under proper authority and at VA expense for the purpose of examination, treatment or care. It also does not show (nor does the appellant contend) that the veteran was in receipt of pension or compensation (or military retirement pay) at the time of his death, or that he had a pending claim for such benefits at the time of death. Although he was a veteran of wartime service, his body was not held by a state or a political subdivision of a state due to lack of a next of kin and insufficient resources in his estate; rather, pursuant to arrangements made by his family, the place of final disposition was a privately owned local cemetery. Further, it is not shown that the veteran was discharged or released from active service for a disability incurred or aggravated in service. Therefore, it is undisputed that the requirements for VA burial allowance under 38 C.F.R. § 3.1600 or 38 C.F.R. § 3.1605 are not met. In sum, the critical facts (outlined above) are not in dispute, and the law is dispositive in this matter. There record shows no legal basis for a grant of nonservice- connected burial benefits, and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to nonservice-connected burial benefits is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs