Citation Nr: 1121998 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 10-00 337A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to burial benefits, to include a plot or interment allowance. ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to February 1969. He died on November [redacted], 2007. The appellant is the Veteran's brother. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran died in November 2007. The cause of the Veteran's death was listed on his certificate of death as lobar pneumonia, with chronic obstructive pulmonary disease and tobacco use listed as contributing causes. 2. The Veteran was not discharged from service due to a disability incurred in or aggravated by service. 3. At the time of the Veteran's death, service connection was in effect for a skin disorder, evaluated as noncompensably disabling and a skeletal disorder, evaluated as noncompensably disabling. 4. At the time of the Veteran's death, he was not in receipt of, or entitled to receive, VA compensation or pension. 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. 6. The Veteran was buried in a state veteran's cemetery and no plot or interment expenses were charged by the cemetery. CONCLUSION OF LAW The criteria for the award of VA burial benefits, to include a plot or interment allowance, have not been met. 38 U.S.C.A. §§ 2302-2304, 2307 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1600-3.1610 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION If a veteran dies during active military service or as a result of a service-connected disability or disabilities, an amount may be paid toward the veteran's funeral and burial expenses. 38 U.S.C.A. § 2307 (West 2002 & Supp. 2010); 38 C.F.R. § 3.1600(a) (2010). In this case, although the Veteran was, during his lifetime, service connected for a skin condition and a condition of the skeletal system, those disabilities were not the principle or contributory causes of his death. As noted above, the Veteran's cause of death was listed on his certificate of death as lobar pneumonia, with chronic obstructive pulmonary disease and tobacco use listed as contributing causes. If a veteran's death is not service connected, an amount may still be paid toward funeral and burial expenses. 38 U.S.C.A. § 2302 (West 2002); 38 C.F.R. § 3.1600(b) (2010). Entitlement to payment of burial expenses may be established if: at the time of death the veteran was in receipt of pension or compensation; or the veteran had an original or reopened compensation or pension claim pending at the time of death and there is sufficient evidence of record on the date of the veteran's death to have supported an award of compensation or pension effective prior to the date of the veteran's death; or the deceased was a veteran of any war or was discharged or released from active 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 that there is no next of kin or other person claiming the body of the deceased veteran and there are not available sufficient resources in the veteran's estate to cover burial and funeral expenses. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). In addition, a nonservice-connected burial allowance is payable if the Veteran died from nonservice-connected causes while properly hospitalized by VA. For burial allowance purposes, the term "hospitalized by VA" means admission to a VA facility (as described in 38 U.S.C. 1701(3)) for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C. 1710 or 1711(a); admission (transfer) to a non-VA facility (as described in 38 U.S.C. 1701(4)) for hospital care under the authority of 38 U.S.C. 1703; admission (transfer) to a nursing home under the authority of 38 U.S.C. 1720 for nursing home care at the expense of the United States; or admission (transfer) to a State nursing home for nursing home care with respect to which payment is authorized under the authority of 38 U.S.C. 1741. 38 U.S.C. § 2303(a)(2); 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). Applications for payments of burial and funeral expenses under 38 U.S.C.A. § 2302 must be filed within two years after the burial of the Veteran. 38 U.S.C.A. § 2304; 38 C.F.R. § 3.1601(a). Here, the appellant filed the application for payment of burial benefits within two years of the Veteran's burial. Applying the legal criteria set forth above to the facts in this case, the Board must conclude that the legal requirements for a VA burial allowance have not been met. At the time of his death, the Veteran was not in receipt of VA pension or compensation benefits. Although the Veteran was service connected for a skin condition and a condition of the skeletal system, those disabilities were evaluated as noncompensable. Thus, he was not in receipt of compensation for his service-connected disabilities. Further, as reflected on VA Form 21-8947 (Compensation and Pension Award), the Veteran was not in receipt of VA pension benefits at the time of death. There is also no indication that the Veteran had pending at the time of his death an original or reopened compensation or pension claim. Moreover, there is no evidence on file which reflects, nor does the appellant allege, that the Veteran was discharged or released from active service for a disability incurred or aggravated in service. 38 C.F.R. § 3.1600(b)(3). Nor does that evidence reflect that the Veteran's body was held by a State. Moreover, the Veteran did not die while hospitalized by VA. His certificate of death lists his place of death as a recreational vehicle (RV). Accordingly, entitlement to burial benefits is not warranted. Finally, the record on appeal does not show that the Veteran died 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. It was specified that the Veteran died in an RV. There is also no indication from the record that the Veteran was at the time of his death traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care. In light of the foregoing, the Board finds that a burial allowance is not warranted as a matter of law. In addition to a VA burial allowance, a plot or interment allowance is payable by VA to an individual who incurred such expenses if certain requirements are met. 38 C.F.R. § 3.1600(f) (2010). For claims filed on or after December 16, 2003, when a veteran dies from nonservice-connected causes, entitlement to a plot or interment allowance is subject to the following conditions: (1) the deceased Veteran is eligible for burial in a national cemetery; (2) the Veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States; and (3) the applicable further provisions of 38 C.F.R. § 3.1600 and §§ 3.1601 through 3.1610. See 38 C.F.R. § 3.1600(f). Of record is a VA Form 21-530a (State Application for Interment Allowance under 38 U.S.C. Chapter 23), wherein it is certified that the Veteran was buried in a State-owned veterans cemetery without charge. Specifically, the Veteran is noted to have been buried in the Southern Wisconsin Veterans Memorial Cemetery in Union Grove, Wisconsin. In view of the foregoing, the Board finds that the appellant is not entitled to a plot or interment allowance as he incurred no expense for the plot and interment in the State-owned cemetery. See 38 C.F.R. § 3.1600(f) (stating that a plot or interment allows is payable to the person or entity who incurred the expenses). The Board has no authority to act outside the constraints of the statutory and regulatory criteria that bind it in this case. See 38 U.S.C.A. § 7104(c) (West 2002). Thus, while the Board recognizes the honorable service of the Veteran, the law and regulations governing the payment of burial benefits establish very specific eligibility requirements for such benefits. Under the circumstances of this case, there is no legal basis upon which to award a VA burial or plot or interment allowance and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2010)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Because it is clear from the record in this case that the law, and not the underlying facts or development of the facts, is dispositive of the matter, the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) do not apply in this case. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004; see also Mason v. Principi, 16 Vet. App. 129 (2002) (the veteran did not serve on active duty during a period of war and was not eligible for nonservice-connected pension benefits; because the law as mandated by statute, and not the evidence, is dispositive of the claim, the VCAA is not applicable); Livesay v. Principi, 15 Vet. App. 165 (2001) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). ORDER Entitlement to VA burial benefits is denied. ____________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs