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