Citation Nr: 1120956 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 10-03 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to additional non-service-connected burial benefits. ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The Veteran served on active duty from October 1953 to October 1955. He died on November [redacted], 2008. The appellant is his daughter. This appeal arises from a February 2009 administrative determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. The Veteran was in receipt of VA non-service connected pension benefits at the time of his death. 2. The evidence does not show the appellant has used her 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. 3. The maximum amount of burial and plot allowance for a non-service-connected death is $600, which was paid directly to the appellant. 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 (2010). 2. The appellant's legal entitlement to additional burial and plot allowance and transportation costs is not established. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. § 3.1601(2010). 3. Entitlement to additional non-service connected burial benefits is not established. 38 U.S.C.A. §§ 2302, 2303 (West 2002); 38 C.F.R. §§ 3.1600, 3.1601, 3.1605 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must first address VA's duty to notify and assist claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). December 2008 and October 2009 letters notified the appellant of the evidence required to support her claim and the applicable laws and regulations. She was subsequently issued a statement of the case in December 2009. As explained below, however, the law, and not the evidence, is dispositive in this case; hence, VA's duties to notify and assist claimants pursuant to the above-noted legal authority are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ADDITIONAL PAYMENT FOR BURIAL EXPENSES Relevant Laws and Regulations. If a veteran's death is not service-connected, an amount not to exceed the amount specified in 38 U.S.C. 2302 may be paid toward the veteran's funeral and burial expenses including the cost of transporting the body to the place of burial. 38 C.F.R. § 3.1600 (b)(2010). Specifically, a sum not to exceed $300 may be paid to cover burial and funeral expenses. If Veteran is eligible for burial allowance under 38 U.S.C.A. § 2302 a sum not exceeding $300 may be paid as a plot or internment allowance. 38 U.S.C.A. §§ 2302, 2303 (West 2002). Claims for burial allowance may be executed by: (i) The funeral director, if entire bill or any balance is unpaid (if unpaid bill or the unpaid balance is less than the applicable statutory burial allowance, only the unpaid amount may be claimed by the funeral director); or (ii) The individual whose personal funds were used to pay burial, funeral, and transportation expenses; or (iii) 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 services. 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. 38 C.F.R. § 3.1601(a)(1)(2010). Claims for the plot or interment allowance (except for claims filed by a State or an agency or political subdivision thereof, under § 3.1604(d)) may be executed by: (i) 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 (if the unpaid bill or the unpaid balance is less than the statutory plot or interment allowance, only the unpaid amount may be claimed by the funeral director); or (ii) The person(s) whose personal funds were used to defray the cost of the plot or interment expenses; or (iii) The person or entity from whom the plot was purchased or who provided interment services if the bill for such is unpaid in whole or in part. An unpaid bill for a plot will take precedence in payment of the plot or interment allowance over an unpaid bill for other interment expenses or a claim for reimbursement for such expenses. Any remaining balance of the plot or interment allowance may then be applied to interment expenses; or (iv) 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. If no executor or administrator has been appointed, claim for the plot or interment allowance may be filed as provided in paragraph (a)(1)(iii) of this section for the burial allowance. 38 C.F.R. § 3.1601(a)(2)(2010). Evidence required to complete a claim for the burial allowance and the plot or interment allowance, when payable, (including a reopened claim filed within the 2-year period) must be submitted within 1 year from date of the Department of Veterans Affairs request for such evidence. In addition to the proper claim form the claimant is required to submit: (1) Statement of account. Preferably on funeral director's or cemetery owner's billhead showing name of the deceased veteran, the plot or interment costs, and the nature and cost of services rendered, and unpaid balance. (2) Receipted bills. Must show by whom payment was made and show receipt by a person acting for the funeral director or cemetery owner. 38 C.F.R. § 3.1605(b)(1) and (2)(2010). Factual Background and Analysis. An October 1964 rating decision found the Veteran permanently and totally disabled and awarded non-service connected pension benefits to the Veteran. On the date of the Veteran's death service connection was not in effect for any disability and there were no pending claims for VA benefits. The Veteran died on November [redacted], 2008. At the time of his death he was an inpatient at Beacham Memorial Hospital. He was buried at Mt. Canaan Cemetery. In December 2008 the appellant submitted an Application for Burial Benefits. She indicated she was not claiming the cause of the Veteran's death was due to service. The Veteran's total burial expenses were listed as being $3584.00. The appellant indicated she had paid the burial expenses of the Veteran. In support of her claim the appellant submitted a copy of a form titled Funeral Instructions from Ginn Funeral Home. It listed the Veteran's wishes to be followed for his funeral and an estimate as to the cost. It had been signed by the Veteran in November 1997 and witnessed by the appellant. The estimate of costs was signed by the funeral director. A notation was added in October 2002 "paid in full." Underneath that was added to the copy in ink "by (the appellant's name) (dtr)." The funeral director's signature does not appear below the notation paid in full. A January 2009 letter from Ginn Funeral Home listed expenses for the Veteran for flowers, the obituary and burial plot fee. There was no indication those expenses had been paid, or if payment had been received, who paid. According to a VA Form 21-8947, the appellant was paid $300 for non-service connected burial and $300 for plot/internment by VA in February 2009. The appellant submitted a notice of disagreement with that determination in March 2009 explaining that a higher amount should have been reimbursed. Prior to the Veteran's death VA Field Examinations were ordered to obtain current income, estate and medical expense information about the Veteran and his spouse. A December 2001 Narrative reveals that an inventory of the Veteran's assets found he had a prepaid burial with Ginn Funeral Home for $2800. The VA Field Examiner in January 2002 discovered the Veteran and his spouse were residing in nursing homes paid by Medicaid. The Veteran's only expenses were for clothing. The Veteran's VA check was being mailed to the address and residence of the appellant. The appellant admitted she was receiving and depositing the checks to an account with the Veteran's and her names on it. She admitted she was spending the Veteran's money for her own personal use. She felt she was entitled to his money because she was his child and he was not of sound mind. In January 2002 VA designated the Administrator of the Nursing Home where the Veteran resided his legal custodian and designated payee. The appellant has not shown that she has paid any money out of her personal funds for the Veteran's burial expenses. The form she submitted was not a bill but an estimate of funeral expenses. As early as December 2001 VA had listed among the Veteran's assets a prepaid funeral with Ginn Funeral Home. Even a cursory review of the Funeral Instructions form shows the notation of paid in full and the appellant's name were not written at the same time, the appellant's name was added to a Xerox copy in ink. The handwriting is different. The letter from Ginn Funeral Home listing other expenses does not include any statement that payment of any of those expenses was received from the appellant. No bill signed by the Funeral director indicating the appellant personally paid the Veteran's burial expenses has been submitted. She also has not submitted any evidence indicating she was the executor of the Veteran's estate. In addition, the appellant admitted in January 2002 that she was using the Veteran's VA funds and had a joint checking account with him. His VA check was addressed to her home. Even if the appellant prepaid his funeral expenses, it is doubtful she used her personal funds and not those of the Veteran. The Board finds the appellant's assertion she paid for the Veteran's burial expenses is not credible. The investigations of the VA Field Examiner clearly demonstrate the appellant deliberately received and spent for her own personal use the Veteran's funds when he was a Medicaid patient in a nursing home. Claims for reimbursement may only be executed by either a funeral director, the individual whose personal funds paid the burial, funeral and transportation expenses or the executor or administrator of the estate. The appellant has not shown she is the funeral director, paid the burial, funeral or transportation expenses from her own personal funds, or that she is the executor or administrator of the estate. 38 C.F.R. § 3.1605(b)(1) and (2)(2010). 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 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 basis for payment of any additional reimbursement. There is no evidence 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. On her application for Burial Benefits she specifically indicated she was not claiming that the cause of the Veteran's death was due to service. The maximum burial and plot allowance under the law have been authorized and disbursed to the appellant. See 38 C.F.R. § 3.1601 (2010). There is no evidence listing what any costs of transporting the Veteran's body to his place of burial may have been. See 38 U.S.C.A. §§ 2302(a) (West 2002). The evidence in the claims folder does not establish that any additional reimbursement is due the appellant. 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 additional non-service-connected burial benefits is dismissed. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs