Citation Nr: 1314340 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-48 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to nonservice-connected burial benefits. ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from March 1952 to November 1953. The Veteran died in May 2010. The appellant is the Veteran's sister. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 administrative decision by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. Jurisdiction over the case was subsequently returned to the VA Regional Office in Oakland, California. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. In her December 2010 substantive appeal, the appellant requested a hearing before a member of the Board. However, in an August 2011 statement, the appellant withdrew that request. Therefore, the hearing request is deemed to have been properly withdrawn. FINDINGS OF FACT 1. The Veteran died at a private hospital in May 2010. 2. At the time of his death, the Veteran was not in receipt of service-connected compensation benefits. 3. At that time of his death, the Veteran was not in receipt of nonservice-connected pension benefits as he had been found to be ineligible due to excessive income in December 2004. 4. The Veteran did not have a claim for compensation or pension benefits pending at the time of his death that would have resulted in an award of service-connected compensation or nonservice-connected pension benefits. 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 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, and upon his death, his body was not being held by a state or a political subdivision of a state due to lack of a next of kin and insufficient resources in his estate. CONCLUSION OF LAW The criteria for payment of VA burial benefits are not 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 As an initial matter, the Board observes that 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012) impose obligations on VA in terms of a duty to notify and assist claimants. However, the law, and not the evidence, is dispositive in this case. Therefore, 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 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, even if there were some deficiency of preliminary VA notice and development, that would be inconsequential and, therefore, at most harmless error. The Board finds that there is no prejudice to the appellant in the Board proceeding with a final decision at this time. 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) (2012). 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) (West 2002); 38 C.F.R. § 3.1600(b) (2012). 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) (2012). 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 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) (2012). 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 discharge from service, but after death the discharge has been corrected by competent authority so as to show 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) 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 (2012). A review of the record shows that the Veteran died at Marin General Hospital in May 2010 and was later cremated. The Veteran was not service-connected for any disability at the time of his death. Further, while the Veteran had received nonservice-connected pension benefits during his lifetime, he was not in receipt of nonservice-connected pension benefits at the time of his death as payment of nonservice-connected pension had been disallowed in December 2004 as a result of excessive income. Moreover, the Veteran did not have an original or reopened claim for either service-connected compensation benefits or nonservice-connected pension benefits pending at the time of his death. Additionally, the Veteran's body is not being held by a state. The evidence does not show that he was released from active service due to any disability. The appellant has argued that the Veteran should have been service-connected for a psychiatric disability at the time of his death as a result of his service in the Korean War. However, the Board notes that the law is clear that at the time of the Veteran's death, he must be in receipt of service-connected compensation or nonservice-connected pension benefits, and he was not. Additionally, the Veteran did not even have a claim for either benefit pending at the time of his death, or any pending claim that would have resulted in an award of service-connected compensation or nonservice-connected pension benefits. The Veteran was noted on his death certificate to have died of sepsis caused by aspiration pneumonia. There is no indication from the record that a psychiatric disability caused or contributed to the Veteran's death. Therefore, it is clear that the criteria for burial benefits are not met under 38 C.F.R. § 3.1600(a) or 38 C.F.R. § 3.1600(b). Additionally, the record 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. 38 C.F.R. §§ 3.1600(c), 3.1605 (2012). Rather, the death certificate shows that the Veteran died at Marin General Hospital, private non-VA facility and that he was not properly hospitalized there under any VA authority. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In this case, the Board finds that the appellant is not entitled to VA burial benefits as a matter of law. ORDER Entitlement to nonservice-connected burial benefits is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs