Citation Nr: 1306704 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-40 528A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Center in St. Paul, Minnesota THE ISSUE Entitlement to non-service connected burial benefits. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from March 1946 to April 1947 and from January 1948 to December 1951. He died April [redacted], 2010. The appellant is the Veteran's daughter who has standing in this case as the person who paid the Veteran's burial expenses. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the documents on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died in a private nursing home on April [redacted], 2010 as a result of conditions which have not been alleged to have been related to his honorable military service. 2. At the time of the Veteran's death, he was not in receipt of either VA compensation or pension benefits. 3. The appellant's timely claim for burial benefits was received in April 2010. 4. At the time of the Veteran's death, he did not have pending an original or reopened claim for compensation or pension; a claim for pension was received by the RO on April 22, 2010, eleven days after the Veteran passed away. 5. The Veteran was not released from active duty as the result of a disability incurred in or aggravated by service. 6. The Veteran's body was never held by a State, State agency, or other political subdivision. 7. At the time of the Veteran's death, he was not hospitalized by VA nor traveling under proper authority and at VA expense for the purpose of examination, treatment, or care. CONCLUSION OF LAW The criteria for burial benefits are not met. 38 U.S.C.A. §§ 2302, 2303, 2305, 2307 (West 2002); 38 C.F.R. §§ 3.954, 3.1600, 3.1601, 3.1605 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board observes that 38 U.S.C.A. §§ 5103(a) and 5103A and 38 C.F.R. § 3.159 impose obligations on VA in terms of its duty to notify and assist claimants. 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. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, even if the Board was to presume, for the sake of argument, that there is some deficiency insofar as preliminary VA notice and development, such would be inconsequential and, therefore, at most harmless error. As such, there is no prejudice to the appellant in the Board proceeding to adjudication of this claim. II. Analysis Specific to claims for 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. If a veteran dies as a result of a service-connected disability or disabilities, certain amounts as authorized may be paid toward the veteran's funeral and burial expenses. 38 C.F.R. § 3.1600(a). If a veteran's death is not a result of service-connected disability or disabilities, entitlement to payment of benefits toward his funeral and burial expenses including the cost of transporting the body to the place of burial is subject to 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); (2) the veteran had an original or reopened claim for either benefit pending at the time of his death and (i) in the case of an original claim, 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 his 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 show entitlement 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. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). Alternatively, burial benefits may be paid if a person dies from nonservice-connected causes while "properly hospitalized" by VA (in a VA or non-VA facility). 38 C.F.R. § 3.1600(c). "Properly hospitalized" by VA means admission to a VA facility for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C.A. § 1710 or § 1711(a); admission (transfer) to a non-VA facility for hospital care under the authority of 38 U.S.C.A. § 1703; admission (transfer) to a nursing home under the authority of 38 U.S.C.A. § 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.A. § 1741. If a veteran dies enroute 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). Claims for reimbursement or direct payment of burial and funeral expenses under 38 C.F.R. § 3.1600(b) must be received by VA within two years of the permanent burial or cremation of the body. Where the burial allowance was not payable at the death of the veteran because of the nature of his or her discharge from service, but after his or her death the discharge has been corrected by competent authority so as to reflect a discharge under conditions other than dishonorable, a claim may be filed within two years from the date of correction of the discharge. This time limit does not apply to claims for service-connected burial allowance under 38 C.F.R. § 3.1600(a) (claims for service-connected death and burial allowance) or for the cost of transporting a veteran's body to the place of burial under 38 C.F.R. § 3.1600(c) or §3.1600(g). 38 C.F.R. § 3.1601. In the instant case, the record discloses that the Veteran died in a private nursing home on April [redacted], 2010. The appellant's application for burial benefits was received by VA that same month. At the time of his death, the Veteran was not service-connected for any disability and the cause of his death was not service-connected in any way. The appellant has not questioned such a conclusion or argued to the contrary. Thus, at the time of his death, the Veteran was not in receipt of VA service-connected compensation benefits. In addition, the record indicates that he was not in receipt of nonservice-connected pension. Moreover, he did not have an original or reopened claim for either benefit pending at the time of his death. On this point, the appellant has argued that the Veteran did in fact have a claim pending at the time of his death. Specifically, in her notice of disagreement, the appellant stated that the Veteran had moved into assisted living in February 2010, and that they had submitted paperwork to VA in March. She indicated that she had been assured that the paperwork was filled out properly. However, a review of the Veteran's claims file shows that while he signed the application for pension on March 21, 2010, the application was not actually received by VA until April 22, 2010 (per the earliest date stamp that was on the document). That is, per the date stamps that are of record, the application was clearly received by VA after the Veteran had passed away. Similarly, the Veteran signed an authorization form for his private doctor and dated the document March 21, 2010, but the document itself was not received by VA until April 28, 2010 per the date stamp. Unfortunately, a claim is not considered to have been filed until it is received by VA. While the appellant has asserted that the claim was filed in March 2010, she has not provided any reason to actually doubt the date stamp that was on the pension claim, and the date stamp is presumed to be accurate in absence of evidence to the contrary. See Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) ("There is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties."). The Board has scoured the claims file for any indication of an earlier document which might constitute an informal claim for pension, but unfortunately the relevant documents were all stamped with a date after the Veteran's death. As such, the Board does not find that a pension claim on the Veteran's behalf was pending before VA at the time of his death. Additionally, the Veteran's body was not being held by a State, as the death certificate demonstrates that the Veteran's body was released to the People's Memorial Funeral Coop and was later cremated. In light of the above discussion, it is clear that the criteria for burial benefits under 38 C.F.R. § 3.1600(a) or (b) are simply not met. Moreover, the Veteran did not die while properly hospitalized by VA, as the death certificate demonstrates that he died at a private nursing home. Thus, he was not in a VA facility for hospital, nursing home, or domiciliary care. There is no indication in the record that such involved admission to the non-VA nursing home with respect to which payment was authorized under 38 U.S.C.A. § 1720 for nursing home care at the expense of the United States. Furthermore, the record does not demonstrate that he had been admitted to a State nursing home for nursing home care with respect to which payment was authorized under 38 U.S.C.A. § 1741. Moreover, he did not die enroute while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care. Accordingly, the criteria for entitlement under 38 C.F.R. §§ 3.1600(c) and 3.1605(a) are not met. Based on the foregoing, therefore, the Board concludes that the legal requirements for burial benefits, either service-connected or nonservice-connected, have not been met. The Board is sympathetic toward the appellant's claim and greatly appreciates the Veteran's honorable service to his country during two wars. Unfortunately, the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). 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." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Consequently, the appellant's claim for burial benefits must be denied. ORDER The claim for VA burial benefits is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs