Citation Nr: 1310635 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-48 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to VA burial benefits. WITNESSES AT HEARING ON APPEAL The Appellant and T.O. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had military service from June 1954 to June 1957. He died in September 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In February 2011, the appellant and T.O. testified at a hearing before a Decision Review Officer. A transcript of the hearing has been associated with the claims file. Since the supplemental statement of the case (SSOC) in April 2011, statements from the appellant were received at the RO in August 2011 and January 2012. Although pertinent to the issue, they are merely cumulative or duplicative of information already in the claims file. Consequently, a remand to accord the RO an opportunity to readjudicate the appellant's appeal with consideration of these statements is not necessary. See 38 C.F.R. § 19.37(b) (2012). FINDINGS OF FACT 1. At the time of his death, the Veteran was not receiving VA service-connected compensation or nonservice-connected pension benefits. 2. The Veteran died at a private hospital in September 2009 from coronary artery disease, a disability for which service connection had not been established or claimed. 3. The appellant's timely claim for burial allowance was received in October 2009. 4. 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. 5. The Veteran was buried (without charge) in a state owned cemetery, or section thereof, used solely for person s eligible for burial in a national cemetery and the appellant did not incur expenses for the burial plot. CONCLUSION OF LAW The criteria for payment of VA burial benefits have not been met. 38 U.S.C.A. §§ 2302, 2303, 2305 (West 2002); 38 C.F.R. §§ 3.954, 3.1600, 3.1601, 3.1605 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, it does not appear that the VCAA is applicable to claims such as the one decided herein. Cf. Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Claims for burial benefits are found in Title 38, United States Code, Chapter 23, and not Chapter 51. Accordingly, the Board finds that no further action is necessary, inasmuch as the VCAA is not for application in this case. At any rate, the appellant was provided with notice of the regulations used to decide this case in the December 2010 statement of the case, where the VA adjudicator laid out in detail why her claim for burial benefits did not meet the requirements. Furthermore, a specific VCAA notice letter was provided to the appellant in July 2011, to which the appellant responded reiterating her earlier arguments considered in the December 2010 statement of the case as well as an April 2011 supplemental statement of the case. II. Analysis The appellant contends that as she is entitled to burial benefits since the Veteran received treatment from VA. See September 2010 notice of disagreement (NOD). 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 (West 2002); 38 C.F.R. § 3.1600 (2012). If a Veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid. 38 C.F.R. § 3.1600(a). If a Veteran's death is not service-connected, entitlement is based upon the following conditions: (1) at the time of death, the Veteran was in receipt of pension or compensation; or, (2) the Veteran had an original or reopened claim for either benefit pending at the time of the Veteran's death and 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; 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 after 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, 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. Based on a review of the evidence, the Board concludes that entitlement to VA burial benefits is not warranted. The Veteran's September 2009 certificate of death shows that he died at a private hospital. The Veteran was not service connected for any disability at the time of his death and his death is not service connected. The Veteran was not, at the time of his death, in receipt of VA service-connected compensation or nonservice-connected pension benefits. Indeed, the appellant has not contended that the Veteran was service connected for any disability; that his death is service connected; or that he was receiving service-connected compensation or nonservice-connected pension benefits at the time of his death. Therefore, it is clear that the criteria for burial benefits under 38 C.F.R. § 3.1600(a) or (b) are not met. Moreover, the Veteran did not die while properly hospitalized by VA. He was not in a VA facility for hospital, nursing home, or domiciliary care; had not been admitted (transferred) to a non-VA facility for hospital care under 38 U.S.C.A. § 1703, admitted (transferred) to a nursing home under 38 U.S.C.A. § 1720 for nursing home care at the expense of the United States, and he had not been admitted (transferred) to a State nursing home for nursing home care with respect to which payment is authorized under 38 U.S.C.A. § 1741. The appellant contends that when she called ambulance services in September 2009, the Veteran's condition was too severe that he had to be taken to the nearest hospital, which was a private facility. See September 2010 NOD; February 2011 Hearing Transcript (T.) at 6. In her NOD, she contends that she wanted the Veteran to be transferred to the nearest VA facility once he stabilized, but he never stabilized and died. The appellant reported that VA told her that in case of an emergency, the Veteran should be transported to the nearest facility and he would still be considered under VA care. See September 2010 NOD. However, the evidence does not show that the Veteran's admittance to the private hospital where he passed was under 38 U.S.C.A. § 1703. 38 U.S.C.A. § 1703 pertains to contracts for hospital care and medical services in non-Department facilities. Pursuant to that statute, when VA facilities are not capable of furnishing the care or services required, VA may contract with non-Department facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a Veteran receiving medical services in a Department facility until such time following the furnishing of care in the non-Department facility as the Veteran can be safely transferred to a Department facility. 38 U.S.C.A § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52(a)(3) (2012). The admission of a Veteran to a non-VA hospital at the expense of VA and under the provisions of 38 U.S.C.A § 1703 must be authorized in advance. 38 C.F.R. § 17.54 (2012); Malone v. Gober, 10 Vet. App. 539 (1997). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. In this case, the evidence does not show that VA facilities were not capable of furnishing the care or services required or that the Veteran's particular care at the time of his death in September 2009 was authorized in advanced by VA or that an application was made to VA within 72 hours. Although the appellant has reported being told that she could bring the Veteran to a private facility in the case of an emergency, the pertinent evidence of record fails to show that the particular treatment in September 2009 was authorized by VA. Indeed, the appellant has not contended specifically contacting VA in September 2009 to obtain authorization. As such, the Board concludes that the Veteran's hospitalization at the time of his death was not under 38 U.S.C.A. § 1703 such that burial benefits under 38 C.F.R. § 3.1600(c) are warranted. 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. § 3.1605(a) are not met. Finally, in addition to the benefits provided for under 38 U.S.C.A. § 2302, in the case of a veteran who is eligible for burial in a national cemetery under 38 U.S.C.A. § 2402 and who is not buried in a national cemetery or other cemetery under the jurisdiction of the United States, VA shall pay a sum not exceeding $300 as a plot or interment allowance to such person as VA prescribes if such veteran is eligible for a burial allowance under § 2302, died while admitted to a VA facility, or was discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty. 38 U.S.C.A. § 2303(b)(2). The correlating regulation, 38 C.F.R. § 3.1600(f)(1), provides that, 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: (i) the deceased veteran is eligible for burial in a national cemetery, (ii) the veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States, and (iii) the applicable further provisions of 38 C.F.R. § 3.1600 and §§ 3.1601 through 3.1610 are met. 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. Id. In the present case, the appellant's October 2009 claim shows that the Veteran was buried (without charge) in a state owned cemetery, or section thereof, used solely for purposes eligible for burial in a national cemetery. The appellant indicated that no costs were incurred for the burial plot, mausoleum vault, columbarium niche, etc. Accordingly, as there is no evidence that the appellant incurred any plot or interment expenses in connection with the Veteran's burial, an interment or plot allowance is not warranted. The Board sympathizes with the appellant for her loss and acknowledges that she has incurred expenses associated with the death of her husband, the Veteran, who served his country honorably. However, under the circumstances of this case, the appellant's claim for burial benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Entitlement to VA burial benefits is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs