Citation Nr: 0814563 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-08 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to non-service-connected burial benefits. ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran served on active duty for approximately seven years, ending January 1951. The veteran died in June 2004. The appellant is his sister. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2005 determination of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (the RO). Procedural history As was noted above, the veteran died in June 2004. Subsequently, the RO granted burial benefits in the amount of $600 ($300 for non-service-connected burial and $300 for plot/interment) and separately burial benefits in the amount of $315 for transportation costs. These burial benefits were paid directly to the funeral home that provided those services. In the April 2005 determination which forms the basis for this appeal, the RO denied the appellant's claim for burial benefits on the grounds that the funeral director was the proper claimant because the appellant had not paid any of the veteran's burial expenses. In her February 2006 VA Form 9, the appellant requested a hearing in Washington, DC before a Veterans Law Judge. In April 2006, the appellant was scheduled for a Central Office hearing to be held in June 2006. In May 2006, the appellant withdrew her hearing request. See 38 C.F.R. § 20.702(e) (2007). FINDINGS OF FACT 1. The evidence does not show that the appellant has used personal funds to pay for burial, funeral, and transportation expenses of the veteran, or that the appellant is the executor or administrator of the veteran's estate. 2. The maximum amount of burial and plot allowance for a non-service-connected death is $600, which was paid directly to the funeral director who handled the veteran's funeral. 3. The transportation costs for transporting the veteran's remains to the funeral home and for use of the hearse was $315, which was paid directly to the funeral director who handled the veteran's funeral. CONCLUSIONS OF LAW 1. The appellant does not have standing to be recognized as a claimant to receive VA burial benefits. 38 C.F.R. § 3.1601 (2007). 2. The appellant's legal entitlement to burial and plot allowance and transportation costs is not established. 38 C.F.R. § 3.1601(2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking non-service-connected burial benefits. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the provisions of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The VCAA is accordingly generally applicable to this case. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. As will be explained below, the facts in this case are not in dispute. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. The Board finds that such is the case as to the issue here on appeal. Application of pertinent provisions of the law and regulations will determine the outcome. In this case the outcome hinges on the application of the law to evidence which is already in the file. No amount of additional evidentiary development would change the outcome of this case; therefore no VCAA notice is necessary. See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) and Mason v. Principi, 16 Vet. App. 129, 132 (2002) [VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"]. In addition, general due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2007). The appellant has been accorded ample opportunity to present evidence and argument in connection with this matter. In particular, in the notice of the April 2005 determination denying burial benefits, the RO informed the appellant that if she had paid the veteran's burial expenses, she should complete a VA Form 21-530 (application for burial benefits) and submit a receipted funeral bill stating whether she paid the bill in full or the amount of the remaining balance. Also, the VA Form 21-530 submitted by the appellant on April 25, 2004 reflects that the appellant was informed that if the estate of the veteran paid the burial expenses, she should submit proof of that occurrence. As was noted in the Introduction section of this decision, the appellant withdrew her request for a Board hearing. In short, the Board believes that this issue was properly developed for appellate purposes. Further development would be a useless exercise. Accordingly, the Board will proceed to a decision on the merits. Relevant law 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. 38 U.S.C.A. § 2302 (West 2002); 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 pursuant to 38 C.F.R. § 3.1600(a). Cases involving a non-service-connected death burial allowance are covered under 38 C.F.R. § 3.1600(b). Under 38 C.F.R. § 3.1601(a)(1), a claim for burial allowance may be executed by: (1) the funeral director, if the entire bill or any balance is unpaid; (2) the individual whose personal funds were used to pay burial, funeral, and transportation expenses; or (3) the executor or administrator of the estate of the veteran or the estate of the person who paid the expenses of the veteran's burial or provided such service. If no executor or administrator has been appointed, then by some person acting for such estate who will make distribution of the burial allowance to the person or persons entitled under the laws governing the distribution of interstate estates in the State of the decedent's personal domicile. Similarly, under 38 C.F.R. § 3.1601(a)(2), claims for the plot or interment allowance may be executed by (1) the funeral director, if he or she provided the plot or interment services, or advanced funds to pay for them, and if the entire bill for such or any balance thereof is unpaid; (2) the person(s) whose personal funds were used to defray the cost of the plot or interment allowance; (3) the person or entity from whom the plot was purchased or who provided interment service if the bill for such is unpaid in full or in part; or (4) the executor or administrator of the estate of the veteran or the estate of the person who bore the expense of the plot or interment expenses. In the case of a deceased veteran who at the time of death was in receipt of compensation (or but for the receipt of retirement pay would have been entitled to compensation), the Secretary, in the Secretary's discretion, having due regard to the circumstances in each case, may pay a sum not exceeding $300 for funeral expenses of the deceased veteran and the expense of preparing the body and transporting it to the place of burial. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). In addition, if the eligible veteran was not buried in a national cemetery, an additional $300.00 is payable (for deaths after December 1, 2001, as in this case) for a plot allowance. 38 U.S.C.A. § 2303(b). 38 U.S.C.A. § 2303 (West 2002 and Supp. 2007), "Death in Department facility; plot allowance", provides that "[w]hen a veteran dies in a [VA] facility [] the Secretary shall (A) pay the actual cost (not to exceed $300) of the burial and funeral ... and (B) when such death occurs in a State, transport the body to the place of burial in the same or any other State" and that when such veteran is buried in a cemetery, or a section of the cemetery, other than described in 38 U.S.C.A. § 5303(b)(1), "the Secretary shall pay a sum not exceeding $300 as a plot or interment allowance." The enabling regulation, 38 C.F.R. § 3.1600(c) (2007) provides that "[i]f a person dies from nonservice-connected causes while properly hospitalized by VA, there is payable an allowance not to exceed the amount specified in 38 U.S.C. § 2303(a) for the actual cost of the person's funeral and burial, and an additional amount for transportation of the body to the place of burial." The costs of transportation of the body to the burial in addition to the burial and plot will be provided by VA where the death incurs within a state while the veteran is hospitalized by VA and the body is buried within a state. 38 C.F.R. § 1.1605(b). The transportation costs may include the following costs of transporting by hearse: (1) charge for pickup of remains from place hospitalized, or place of death; and (2) charge for one later removal by hearse to place of burial. These charges will not exceed those made to the general public for the same services. Payment of hearse charges for transporting the remains over long distances are limited to the prevailing common carrier rates when common carrier service is available and can be easily and effectively utilized. 38 C.F.R. § 3.1606(b) (2007). Additional burial benefits are paid only in the event that a veteran dies as a result of a service-connected disability. 38 U.S.C.A. § 2307 (West 2002). Analysis The RO granted burial benefits in the amount of $600 ($300 for non-service-connected burial and $300 for plot/interment) and separately burial benefits in the amount of $315 for transportation costs. In conformity with the regulations, these burial benefits were paid directly to the funeral home that provided those services. See 38 C.F.R. § 3.1601. The funeral home billed the appellant a total of $3,662.10, which was the remainder of the burial expenses after reimbursement from a county auditor and VA. The appellant seeks reimbursement from VA for those expenses, in essence contending that VA should pay all of the funeral expenses. She has pointed to no law or regulation which supports her position. The appellant has not shown that she has paid any money out of her personal funds for the outstanding balance of $3,662.10. In fact, her June 2005 statement reflects that she had not made any payment on the balance. In short, there is no indication whatsoever that her own funds were used to pay for burial expenses. Moreover, the record does not reflect that the appellant is the executor or administrator of the veteran's estate or that if no executor or administrator has been appointed, she is acting on the estate's behalf. Consequently, the appellant does not fall into any of the classes of individuals under 38 C.F.R. § 3.1601 who may execute a claim for burial benefits. In short, she lacks legal standing to pursue a claim for reimbursement for burial benefits. The claim of entitlement to non-service-connected burial benefits must be dismissed, as the appellant is not a proper claimant. For the sake of completeness, the Board will assume for the sake of argument that that the appellant has standing to execute a claim for burial benefits. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide a claim in the alternative]. Her claim would still fail. There is no evidence that the veteran died of service- connected disease or injury, nor has the appellant asserted otherwise. Service connection was not in effect for any disability at the time of his death. In the two VA Form 21- 530s submitted by the appellant in April 2004, she stated that she was not claiming that the cause of the veteran's death was due to service. The maximum burial and plot allowance and transportation costs allowable under the law have been authorized and duly disbursed to the funeral home. See 38 C.F.R. § 3.1601. The "authorized amount" of $915 was awarded - entitlement to $300 for non-service-connected burial allowance, entitlement to $300 for non-service- connected plot and internment allowance, and $315 in transportation costs ($140 for transfer of the remains to the funeral home and $175 for use of the hearse). There is no evidence that the transportation costs exceeded $315. The amount of $915 is the maximum allowed with respect to this non-service-connected death. See 38 U.S.C.A. §§ 2302(a), 2303(b). In short, the maximum amount of burial benefits allowable has already been disbursed to the proper payee, the funeral home. Even if the appellant had standing to pursue a claim, as a practical matter there are no benefits to be awarded. To some degree, the appellant appears to be raising an argument couched in equity in that she contends that VA should pay for the veteran's burial expenses because of his service to his country, her financial situation, and the fact that the United States Government provides financial aid to other countries. The Board appreciates the appellant's concerns; however, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As explained above, the Board has decided this case based on the law and regulations. The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. In summary, the appellant lacks standing to pursue this claim, and in any event as a matter of law the maximum amount of burial benefits has already been properly paid to the funeral director. The Board has considered whether the more proper remedy in this case is denial or dismissal of the claim. In essence, the claim fails because of the absence of legal merit or lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board believes, given the circumstances of this case, that dismissal is more appropriate than denial. ORDER The claim of entitlement to non-service-connected burial benefits is dismissed. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs