Citation Nr: 1315445 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-29 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to 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 May 1953 to September 1955. He died in January 2007. The appellant is the Veteran's nephew. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the benefits sought on appeal. In July 2011, the Veteran testified at a Board hearing before the undersigned via video conference from the RO. FINDINGS OF FACT 1. The appellant's claim was received within two years of the Veteran's death. 2. The Veteran was not discharged or released from active service for a disability incurred in or aggravated in the line of duty. 3. On the day of the Veteran's death, service connection was not in effect for any disability. 4. When the Veteran died, he had a claim pending for compensation under 38 U.S.C.A. § 1151, but there was no entitlement to those benefits. 5. The Veteran did not die while properly hospitalized by VA. 6. The Veteran was not buried in a national cemetery. 7. When the Veteran died, he had a claim pending for pension benefits and there was entitlement to those benefits. 8. The appellant paid a portion of the Veteran's funeral/burial expenses. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected burial benefits are met. 38 U.S.C.A. §§ 2302 -2308 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.1600-3.1610 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A VCAA letter was sent in March 2010 which indicated the type of evidence and information needed to substantiate the claim and apprised the appellant of his responsibilities in obtaining this supporting evidence. The appellant has also been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the appellant met the criteria for burial benefits. The appellant also volunteered the pertinent information. Accordingly, the appellant is not shown to be prejudiced on this basis. Finally, the appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the appellant). Burial Benefits According to information contained in the record, including documentation from the funeral home, the total cost of the Veteran's funeral was $6,191.25. The appellant testified that he paid the costs of the funeral, using (by his own admission) an insurance policy of the Veteran, various donations, as well as $2,000 to $3,000 of his own funds. The documentation from the funeral home confirms that the appellant had paid for the funeral. 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). 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). 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). 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 January 2007, and the appellant filed his claim in December 2008. Thus, the claim was received within the two-year time limit for nonservice-connected burial benefits. Initially, 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). This Veteran was not service-connected for any disability at the time of his death. However, although the Veteran was not service-connected during his lifetime, he applied for compensation benefits under 38 U.S.C.A. § 1151 for perforation of the large bowel during a colonoscopy and for depression. His claims were denied, but he had initiated an appeal prior to his death as to the claim for perforation of the large bowel during a colonoscopy. In considering his claim, the Board notes that compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. In addition, the proximate cause of the disability or death must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. 38 C.F.R. § 3.361(b) states that to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(c) states that claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims based on additional disability or death due to training and rehabilitation services or compensated work therapy program must meet the causation requirements of paragraph (d)(3) of this section. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused a veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, a veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. To establish that the provision of training and rehabilitation services or a CWT program proximately caused a veteran's additional disability or death, it must be shown that the veteran's participation in an essential activity or function of the training, services, or CWT program provided or authorized by VA proximately caused the disability or death. The veteran must have been participating in such training, services, or CWT program provided or authorized by VA as part of an approved rehabilitation program under 38 U.S.C. chapter 31 or as part of a CWT program under 38 U.S.C.§ 1718. It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized. 38 C.F.R. § 3.361(e) provides for Department employees and facilities. A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e) explains activities that are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility. The following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a): (1) hospital care or medical services furnished under a contract made under 38 U.S.C. 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction 38 C.F.R. § 3.361(g) provides for benefits which are payable under 38 U.S.C. § 1151 for a veteran's death. In this case, the Veteran was not entitled to compensation under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361 for the bowel perforation. In January 2006, the Veteran was admitted to the Jewish Hospital, presenting with a right frontal brain mass. The veteran underwent a craniotomy and resection. A biopsy revealed a metastatic poorly differentiated adenocarcinoma. The primary site was consistent with the gastrointestinal system. The Veteran was discharged for follow-up with VA. In February 2006, the Veteran was admitted by VA for urosepsis and urinary retention. He was treated and responded well. He also underwent a colonoscopy to delineate an etiology for his metastatic brain tumor. He sustained a perforation during the scope. He underwent exploratory laparotomy with suture repair of the colon perforation. He recovered from the surgery on the colon with residual persisting nausea and diarrhea which was felt to be an ileus. Thereafter, the Veteran stayed in the intensive care unit and the diarrhea continued. He was placed on medication. The Veteran additionally underwent radiation therapy for the brain tumor. In September 2006, the Veteran was afforded a VA examination. His history was reviewed. The examiner confirmed that the Veteran's colon was perforated during his c-scope in February 2006 with resultant bowel and nausea issues. The examiner reviewed VA's records pertinent to the Veteran's hospitalization and colon surgery. The examiner indicated that it was well documented in the medical records that the colonoscopy was complicated by a sigmoid perforation; however, a sigmoid perforation is a well known potential complication of a colonoscopy. Further, there was no evidence to suggest that the perforation and any residuals of it were caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar finding of fault on the part of VA. Also, the examiner stated that the perforation of the colon does not represent an event that is "not reasonably foreseeable" given that the possibility of a bowel perforation is disclosed in the standard informed consent for a colonoscopy. Perforation of the bowel from a colonoscopy, although rare, is a well known occasionally seen complication form that procedure. VA law and regulation require that the evidence must show that the additional disability is the result of VA hospital care, medical or surgical treatment and that the proximate cause of the additional disability must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. It is not contended nor shown that the Veteran was furnished hospital or medical treatment without his consent. In fact, the VA examiner specified that the standard informed consent form for a colonoscopy informs patients, such as the Veteran, of the potential complication of a bowel perforation. The Veteran had additional disability as a result of VA medical treatment administered in February 2006 as he sustained a bowel perforation which caused gastrointestinal symptoms such as nausea and diarrhea, but the proximate cause of the disability was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination. Also, the additional disability was not due to an event not reasonably foreseeable. This occurrence was not due to negligence or carelessness, but rather was an unfortunate, but foreseeable consequence. In order to establish eligibility under 38 U.S.C.A. § 1151, the Veteran's surgery/medical care by VA must have been a factor and the other listed criteria must be met. That is not the case here. The Board finds the VA medical opinion to be the most probative evidence of record because it was provided by a medical professional and based on a comprehensive review of the record as well as examination of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the probative competent medical evidence establishes that VA was not careless or negligent, that VA lacked proper skill or made an error in judgment, or that there was similar instance of fault on the part of VA; or that the Veteran's bowel perforation was an event not reasonably foreseeable. Accordingly, the criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a bowel perforation have not been met. Thus, even assuming the bowel perforation played an etiological role in causing or contributing to cause the Veteran's death, the Veteran was not entitled to compensation under 38 U.S.C.A. § 1151 for the bowel perforation and its residuals. Accordingly, there were no service-connected disabilities when the Veteran died, nor was the Veteran compensated under 38 U.S.C.A. § 1151 or entitled to such compensation. Alternatively, a burial allowance can also be payable if a Veteran dies of a nonservice-connected disorder while properly hospitalized by 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). Here, the evidence shows that the Veteran was not hospitalized by the VA when he died. Therefore, a burial allowance under these provisions is not warranted. 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). The first condition is not met on this record because the Veteran's body was not unclaimed. 38 U.S.C.A. §2302(a)(2); 38 C.F.R. § 3.1600(b)(3). The second condition is not met because, as noted above, 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. 8 U.S.C.A. § 2302(a)(1); 38 C.F.R. § 3.1600(b)(1). As for the third condition, 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). With respect to the fourth condition for burial allowance, the record shows that there was a claim pending for compensation. However, as noted above, there was not sufficient evidence in the record to support that award. However, there was also a claim for pension pending. A VA Form 21-4138 was apparently submitted prior to the Veteran's death, and was signed by the Veteran in January 2006, establishing that it was executed prior to his death. The Board recognizes that there is no date stamp to definitively establish receipt, but it was also furnished with a medical record, documenting that the Veteran was being treated for the colon perforation. The Board notes further that the file also contains a VA Form 21-527 (Income-Net Worth and Employment Statement (In Support of Claim for Total Disability Benefits) signed by the Veteran and dated the same day in January 2006 as the VA Form 21-4138 referenced herein. Notes attached to the VA Form 21-527 indicates that the Veteran's only income at the time was Social Security Administration (SSA) benefits in the amount of $900 per month; that the Veteran was ill with a tumor on the brain; and that VA in Louisville had all of the records. It appears that these documents, while not date-stamped, were in the Veteran's claims folder prior to his death. In affording all reasonable doubt, the Board finds that these documents were received prior to the Veteran's death; thus a claim for pension/aid and attendance (special monthly pension) was pending, but unadjudicated prior to the Veteran's death. Nonservice-connected pension benefits are payable to a veteran who served for 90 days or more during a period of war, which is not in dispute here, and who is permanently and totally disabled due to disabilities that are not the result of his or her own willful misconduct. 3 8 U.S.C.A. § 1521; see also Dilles v. Brown, 5 Vet. App. 88, 89-90 (1993). If a veteran's combined disability is less than 100 percent, he or she must be unemployable by reason of disability. 38 C.F.R. §§ 3.321, 3.340, 3.342, Part 4; see also Brown (Clem) v. Derwinski, 2 Vet. App. 444, 446 (1992). Disability evaluations are determined by the application of the VA schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a), Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To be eligible for nonservice-connected pension, the evidence of record must demonstrate that the Veteran is permanently and totally disabled from disabilities that are not the result of willful misconduct. For the purposes of pension benefits, a person shall be considered to be permanently and totally disabled if such person is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or has, (1) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or (2) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons with them are permanently and totally disabled. 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 3.340(b), 4.15. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the "average person" test. See 38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the Veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. Alternatively, all veterans who are basically eligible for pension benefits and who are unable to secure and follow a substantially gainful occupation by reason of disabilities, which are likely to be permanent, shall be rated as permanently and totally disabled. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the Veteran's disabilities render him or her unemployable. See 38 C.F.R. § 4.17. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16. Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule, but is found to be unemployable by reason of his disabilities, age, occupational background and other related factors, a permanent and total disability rating for pension purposes may be assigned on an extraschedular basis. See 38 C.F.R. § 3.321(b) (2), 4.17(b). With regard to the question as to whether there was sufficient evidence in the claims file to have supported an award of pension, the Board finds that there was in fact sufficient evidence in the claims file to have supported an award. The Veteran had a metastatic brain tumor which eventually resulted in his death. As noted, he also had a colon perforation. The VA examination conducted in September 2006 indicated that his overall medical condition was poor. The brain tumor alone could be assigned a 100 percent rating. See 38 C.F.R. § 4.124(a), Part 4, Diagnostic Code 8002 (2012). This disability was permanent and total as evidenced by the fact that it resulted in death. In sum, the Veteran was permanently and totally disabled from nonservice-connected disability not due to his own willful misconduct. Thus, the Veteran, whose death is not service-connected, had an original claim pending for pension 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). In light of the foregoing, the Board finds that the appellant is entitled to VA burial benefits. See 38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600(b). ORDER The claim for nonservice-connected burial benefits is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs