Citation Nr: 1310303	
Decision Date: 03/27/13    Archive Date: 04/09/13

DOCKET NO.  10-18 504A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to nonservice-connected burial benefits.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. Connolly, Counsel

INTRODUCTION

The Veteran served on active duty from February 1953 to January 1957.  He died in May 2009.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefits sought on appeal.  In August 2012, the appellant testified before the undersigned via video conference from the RO.


FINDINGS OF FACT

1.  The Veteran was not discharged or released from active service for a disability incurred in or aggravated in the line of duty.

2.  On the day of the Veteran's death, in May 2009, service connection was not in effect for any disability; the Veteran was not in receipt of, or entitled to receive, compensation or pension benefits; and he was not in a VA facility or en route thereto.

3.  At the time of the Veteran's death, he did not have a pending claim for benefits.

4.  The body of the Veteran is not being held by a State or a political subdivision of a State.


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 not discharged from service due to a disability incurred in or aggravated by service. 

7.  The Veteran is buried in a national cemetery.


CONCLUSION OF LAW

The criteria for entitlement to the payment of nonservice-connected burial benefits have not been met.  38 U.S.C.A. §§ 2302, 2303, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1600, 3.1601, 3.1605 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with providing certain notice and assistance to claimants as outlined in the VCAA and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).  The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure compliance with provisions of the VCAA when applicable.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In this case, the VCAA is inapplicable because, as explained below, the facts are not in dispute and the outcome turns on the application of law to those facts.  Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that when the law, and not the underlying facts or development of the facts, are dispositive in a matter, the VCAA has no effect on the appeal); Smith v. Gober, 14 Vet. App. 227, 231-232 (2000) (holding that the VCAA is not applicable to matters involving pure statutory interpretation).

Burial Benefits

An application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the veteran's body.  38 U.S.C.A. § 2304; 38 C.F.R. § 3.1601(a).  This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1600(f).  The two-year time limit does not apply to claims for service-connected burial allowance, or for the cost of transporting a veteran's body to the place of burial when the veteran dies while properly hospitalized by VA, or for burial in a national cemetery.  38 C.F.R. § 3.1601(a).  In this case, the Veteran died in May 2009, and the appellant filed her claim in November 2009.

A burial allowance is payable under certain circumstances to cover some of a deceased veteran's burial, funeral, and transportation expenses.  38 U.S.C.A. §§ 2302, 2303; 38 C.F.R. § 3.1600.  If a veteran dies as a result of a service-connected disability or disabilities, a burial allowance may be paid.  38 C.F.R. § 3.1600(a).  The Veteran in this case was not service-connected for any disability at the time of his death. 

A burial allowance can also be payable if a veteran dies of a nonservice-connected disorder while properly hospitalized by the VA or while at another facility at VA expense for the purpose of examination, treatment, or care.  38 U.S.C.A. § 2303(a); 38 C.F.R. § 3.1600(c).  In this case, the evidence shows that the Veteran had a heart attack while in his home.  Private emergency treatment respondents arrived and began to try to revive the Veteran.  Although the appellant requested that the Veteran be transported to a VA facility, the crew who responded to the Veteran's emergency situation transported the Veteran to Good Samaritan Hospital which was purportedly better equipped to deal with this life threatening situation.  See June 11, 2009 letter of First Aid & Safety Patrol.  Unfortunately, the Veteran died.  He was not ever hospitalized at VA during this period nor was he at another facility at VA expense.  It is the unfortunate circumstance that the Veteran's situation transpired quickly and there was no time for VA authorization to be provided or treatment by a VA facility to be provided.

If a veteran's death is not service-connected, payment of a burial allowance may also be made, provided that one of the following four conditions is met: (1) the deceased veteran served during a period of war and was discharged or released from active service for a disability, no next of kin or other person is claiming the body, and there are insufficient resources in the veteran's estate to cover burial and funeral expenses; (2) at the time of death, the veteran was in receipt of compensation (or but for the receipt of military retired pay the veteran would have been in receipt of VA compensation); (3) at the time of death, the veteran was in receipt of pension; or (4) the veteran had an original or reopened claim pending for either pension or compensation at the time of death, and there was on the date of death sufficient evidence in the claims file to have supported an award. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b)(1), (2), (3).

First, the Veteran's body was not unclaimed. 38 U.S.C.A. §2302(a)(2); 38 C.F.R. § 3.1600(b)(3). 

Second, the Veteran was not service-connected for any disability and he was not in receipt of compensation; further the record does not indicate that he would not have been receiving military retired pay in lieu of compensation.  38 U.S.C.A. § 2302(a)(1); 38 C.F.R. § 3.1600(b)(1).

Third, the Veteran was not in receipt of pension at the time of his death.  38 U.S.C.A. § 2302(a)(1); 38 C.F.R. § 3.1600(b)(1).

Fourth, at the time of the Veteran's death, he did not have an original or reopened claim pending for either pension or compensation, nor was there sufficient evidence in the claims file at the time of death to have supported an award.  38 U.S.C.A. § 2302(a)(1); 38 C.F.R. § 3.1600(b)(1).

Since none of the conditions for a nonservice-connected burial allowance have been met, the appellant's claim cannot be granted. 

Further, in the case of a veteran who is eligible for a burial allowance under 38 U.S.C.A. § 2302, if such veteran is buried in a cemetery, or a section of a cemetery, VA shall pay a sum not exceeding $300 as a plot or interment allowance to such person as VA prescribes.  38 U.S.C.A. § 2303(b)(2). For claims filed on or after December 16, 2003, plot or interment allowance is payable to the person or entity who incurred the expenses if: (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 are met.  38 C.F.R. § 3.1600(f)(1).  For purposes of the plot and interment allowance, plot or burial plot means the final disposal site of the remains, whether it is a grave, mausoleum vault, columbarium niche, or other similar place.  38 U.S.C.A. § 3.1601(a)(3).  Further, interment expenses are those costs associated with the final disposition of the remains and are not confined to the acts done within the burial grounds but may include the removal of bodies for burial or interment. 

In this case, the Veteran was buried in a national cemetery, by the appellant's own admission on her application form, and as noted by the RO.  

The Board acknowledges the Veteran's service to his country; however, the Board is bound by VA laws and regulations which do not support the appellant's claim in this case.  


ORDER

Entitlement to nonservice-connected burial benefits is denied.



______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs