Citation Nr: 0814557 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-14 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to non-service connected burial benefits. WITNESSES AT HEARING ON APPEAL Appellant and R.E.C. ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from July 1954 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston- Salem, North Carolina, which denied the benefit sought on appeal. In March 2008, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. FINDINGS OF FACT 1. The veteran died in March 2004. 2. The veteran was not discharged or released from active service for a disability incurred or aggravated in the line of duty. 3. The veteran died with no service-connected disabilities. 4. At the time of his death the veteran was not in receipt of VA compensation or pension benefits and did not have an original or reopened claim for such benefits pending with sufficient evidence of record on the date of his death to have supported an award of compensation or pension effective prior to his death. 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 payment of nonservice-connected burial benefits have not been met. 38 U.S.C.A. §§ 1703, 2302, 2303, 2305 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.954, 3.1600, 3.1605 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Burial benefits 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). Alternatively, burial benefits may be paid if a person dies from non-service-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). If a veteran dies en route while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care, burial expenses will be allowed as though death had occurred while properly hospitalized by VA. 38 C.F.R. § 3.1605(a). When a veteran dies from non-service-connected causes, an amount not to exceed a certain amount may be paid as a plot or interment allowance. Entitlement to a plot or interment allowance is subject to the following conditions: (1) The deceased veteran is eligible for the burial allowance under 38 C.F.R. § 3.1600(b) or (c); 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 38 C.F.R. § 3.1600 and §§ 3.1601 through 3.1610. 38 C.F.R. § 3.1600(f). see 38 U.S.C.A. § 2303. At the time of his death, the veteran was not receiving VA compensation or pension benefits. The record shows that the veteran died at a private hospital, Alamance Regional Medical Center. At a March 2008 hearing, the appellant testified that the veteran was at home in non-VA hospice care. In March 2004, due to an emergency situation, he was sent to Alamance Regional Medical Center, but died at that hospital. The appellant testified at the hearing that the veteran was being seen by a VA doctor while in hospice care and up until his death and the plan was to stabilize the veteran and then transfer him to the VA hospital. In her March 2008 testimony, the appellant did not recall receiving a bill for the veteran's final hospitalization in March 2004 and assumed the VA took care of the bill. When VA facilities or other Government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care of services required, VA may contract with non-VA facilities for care in certain cases. When demand is only for infrequent use, individual authorizations may be used. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52. As a general matter, the admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54; see also Malone v. Gober, 10 Vet. App. 539, 541 (1997); VAOPGCPREC 1-95 (March 31, 1995) (authorization in advance is essential to any determination as to whether VA is or is not going to furnish the contract care). Under 38 U.S.C.A. § 1703(a) when Department facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing the care or services required, the Secretary, as authorized in section 1710 of this title, may contract with non-Department facilities in order to furnish any of the following: (1) Hospital care or medical services to a veteran for the treatment of (A) a service-connected disability; (B) a disability for which a veteran was discharged or released from the active military, naval, or air service; or (C) a disability of a veteran who has a total disability permanent in nature from a service-connected disability. (2) Medical services for the treatment of any disability of (A) a veteran described in section 1710(a)(2)(B) of this title; (B) a veteran who (i) has been furnished hospital care, nursing home care, domiciliary care, or medical services, and (ii) requires medical services to complete treatment incident to such care or services; or (C) a veteran described in section 1710(a)(2)(E) of this title, or a veteran who is in receipt of increased pension, or additional compensation or allowances based on the need of regular aid and attendance or by reason of being permanently housebound (or who, but for the receipt of retired pay, would be in receipt of such pension, compensation, or allowance), if the Secretary has determined, based on an examination by a physician employed by the Department (or, in areas where no such physician is available, by a physician carrying out such function under a contract or fee arrangement), that the medical condition of such veteran precludes appropriate treatment in Department facilities. (3) Hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility or nursing home care under section 1720 of this title until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility. (4) Hospital care for women veterans. (5) Hospital care, or medical services that will obviate the need for hospital admission, for veterans in a State (other than the Commonwealth of Puerto Rico) not contiguous to the contiguous States, except that the annually determined hospital patient load and incidence of the furnishing of medical services to veterans hospitalized or treated at the expense of the Department in Government and non-Department facilities in each such noncontiguous State shall be consistent with the patient load or incidence of the furnishing of medical services for veterans hospitalized or treated by the Department within the 48 contiguous States and the Commonwealth of Puerto Rico. (6) Diagnostic services necessary for determination of eligibility for, or of the appropriate course of treatment in connection with, furnishing medical services at independent Department out-patient clinics to obviate the need for hospital admission. (7) Outpatient dental service and treatment, and related dental appliances, for a veteran described in section 1712(a)(1)(F) of this title. (8) Diagnostic services (on an inpatient or outpatient basis) for observation or examination of a person to determine eligibility for a benefit or service under laws administered by the Secretary. The veteran was receiving VA treatment; however, such treatment may be given under several statutory provisions. The Board has carefully considered the circumstances of the veteran's death to determine whether he had been hospitalized at Alamance Regional Medical Center pursuant to 38 U.S.C.A. § 1703(a) and concludes that he was not. He did not meet the requirements set forth in 38 U.S.C.A. § 1703(a). In the instant case the record contains no evidence that the veteran was being treated under VA authority or contract or that he was hospitalized through VA authority or contract. 38 C.F.R. §§ 3.1600(c), 3.1605. Moreover, the record does not suggest that he was, in fact, hospitalized at Alamance Regional Medical Center under 38 U.S.C.A. § 1703(a). No claim for pension or compensation was pending at the time of the veteran's death. 38 C.F.R. § 3.1600(b)(2). He did not have any service-connected disability. Moreover, it is neither contended nor shown that he was hospitalized for observation or examination to determine eligibility for a VA benefit; for dental treatment; or for diagnostic services concerning eligibility or course of treatment in connection with receiving medical services at an outpatient clinic to obviate the need for hospitalization. The veteran also is not a woman, did not reside in a non-contiguous State, and was not receiving medical services in a VA facility or a nursing home under Section 1720. Additionally, there is no indication in the record that the veteran's body was held by a State, or political subdivision of a State, that no next of kin or other person claimed the body, and that there were insufficient available resources to cover burial and funeral expenses. The death certificate reflects he was taken to the McClure Funeral Service and buried at Graceland Memorial Park. The appellant has not indicated that the veteran was buried in a cemetery owned by a state or the Federal government. In light of the foregoing, a burial allowance is not warranted under 38 C.F.R. § 3.1600(b)(1)(2) or (3). The record shows, for reasons similar to those set out above, that the appellant is not entitled to a plot or interment allowance. The requirements for eligibility for a burial allowance have not been met, and the veteran was not buried in a state or national cemetery. As noted above, the appellant did not indicate in her application for burial benefits that the veteran was buried at a state owned- cemetery. See 38 C.F.R. §§ 3.1600(f)(1), (2), 3.1604(d)(1)(ii)-(iv). Rather, the certificate of death reflects a private funeral home and cemetery. Finally, the record shows that the veteran was not separated from service for a disability incurred or aggravated in line of duty. In fact, the veteran's separation document (Form DD-214) notes that the veteran was separated honorably due to expiration of his enlistment. The Board recognizes the appellant's sincere belief that the burial benefit should be paid. Nonetheless, the law and regulations concerning burial benefits establish very specific eligibility requirements for such benefits, and the Board has no authority to act outside the constraints of the regulatory criteria that bind it in this case. See 38 U.S.C.A. § 7104(c) (West 2002 & Supp. 2007). The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). 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 evidence 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in September 2005 correspondence fulfills the provisions of 38 U.S.C.A. § 5103(a). The Board acknowledges that under 38 U.S.C.A. § 5103(a) notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the provisions of 38 U.S.C.A. § 5103(a) were not provided to the appellant until after the May 2004 decision. Since then, however, the content of the notices provided to the appellant fully complied with the requirements of that statute. The appellant has been afforded a meaningful opportunity to participate in the adjudication of her claim, to include the opportunity to present pertinent evidence. Thus any error in the timing was harmless, the appellant was not prejudiced. Simply put, there is no evidence any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). The Board acknowledges that the appellant was not provided the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim). This appeal does not involve a claim for service connection. Moreover, the failure to provide the specific notice required by Dingess is harmless in this instance because the appellant's claim for non-service-connected burial benefits is denied, and there is no question as to the disability rating or the effective date to be assigned. The appellant testified at a Travel Board hearing in March 2008. In addition, VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER Entitlement to non-service-connected burial benefits is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs