Citation Nr: 1316408	
Decision Date: 05/20/13    Archive Date: 05/29/13

DOCKET NO.  10-22 646	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to nonservice-connected burial benefits.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1969 to April 1971. The Veteran died in April 2006.  The appellant claims as a surviving spouse.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  The Veteran died in April 2006 from nonservice-connected causes; he was buried on May [redacted], 2006.

2.  At the time of the Veteran's death, service connection was in effect for chronic schizophrenia, rated at 100 percent disabling from April 1971.

3.  In a June 2007 rating decision, the RO denied Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318, and service connection for the cause of the Veteran's death.

4.  In April 2008, the appellant was awarded DIC benefits under 38 U.S.C.A. § 1318.

5.  The appellant paid for the Veteran's burial and filed an application for nonservice-connected burial benefits on May 14, 2008, more than two years after the permanent burial of the Veteran's body.

6.  The circumstances of the Veteran's death do not meet any of the enumerated exclusions from the two-year filing deadline provided by regulation for the benefit sought.


CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected burial benefits have not been met.  38 U.S.C.A. §§ 2302, 2303, 2304; 38 C.F.R. §§ 3.1600, 3.1601(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (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, 3.326(a) (2012).

In some cases, however, the VCAA notification and assistance provisions are inapplicable because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established).  This is such a case.  As discussed below, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA burial benefits.  The VCAA is therefore inapplicable and need not be considered in this case.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (June 23, 2004).

Legal Principles and Analysis

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 burial benefits may be paid.  38 C.F.R. § 3.1600(a).

If the Veteran's death is not service-connected, entitlement 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 such); or (2) the Veteran had an original or reopened claim for pension or compensation pending at the time death for which there was evidence of record on the date of death to have supported an award for such benefit; 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 his or her body is being held by a State, and there is no next of kin or other person claiming the body and there are insufficient resources in the Veteran's estate to cover burial and funeral expenses; and application of the further provisions of 38 C.F.R. §§ 3.1601 through 3.1610.  38 C.F.R. § 3.1600(b).
Expenses are also payable if a Veteran dies from nonservice-connected causes while properly hospitalized by VA in a VA or non-VA facility or while under certain VA-authorized travel for examination, treatment, or care.  38 C.F.R. §§ 3.1600(c); 3.1605(a).

When a Veteran dies from nonservice-connected causes, entitlement to a plot or interment allowance is warranted when the following conditions are met: (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) application of the further provisions of 38 C.F.R. §§ 3.1601 through 3.1610.  38 U.S.C.A. § 2303; 38 C.F.R. § 3.1600(f).

An application for nonservice-connected burial and funeral expenses and plot or interment allowance must be filed within two years after the Veteran's burial or cremation.  This 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 at a VA facility, or for burial in a national cemetery.  38 U.S.C.A. § 2304; 38 C.F.R. § 3.1601(a).

As an initial matter, service connection has not been established for the cause of the Veteran's death.  Moreover, according to the appellant's May 2008 application for burial benefits, she is not claiming that the Veteran's cause of death was due to service for the purposes of this claim.  Historically, at the time of the Veteran's death, service connection was in effect for one disability, chronic schizophrenia, rated at 100 percent disabling from April 1971.  In a June 2007 rating decision, the RO denied the claims of DIC benefits under the provisions of 38 U.S.C.A. § 1318 and service connection for the cause of the Veteran's death, finding that the Veteran's death was result of willful misconduct.  Upon submission of additional information, the appellant was awarded DIC benefits under 38 U.S.C.A. § 1318 in an April 2008 DRO decision.

Nonetheless, as the Veteran was in receipt of VA compensation at the time of his death, the appellant meets this element for consideration of entitlement to nonservice-connected burial benefits.  In addition, as discussed in greater detail below, as the record reflects that the Veteran's death was not a result of a service-connected disability, he did not pass away while properly hospitalized at a VA facility, and was not buried in a national cemetary, the appellant's application for her claimed benefits must have been received within two years of the Veteran's permanent burial.  38 C.F.R. § 3.1601(b).

The certificate of death shows that the Veteran died in April 2006 and was buried several days later on May [redacted], 2006; the immediate cause of death was intoxication with cocaine.  According to a police incident report from that same day, the Veteran died at a private residence; following an autopsy several days later, the Veteran's death was ruled an accident.

In the May 2008 application for burial benefits, the appellant indicated that the Veteran's burial was at a civil cemetary in Mayaguez.  She indicated that the burial, funeral, and transportation costs totaled $2,000, for which her funds were used; she incurred no expense for a burial plot.  She listed the date of burial as May 30, 2006.  Receipts and invoices submitted from the funeral home and cemetary show the expenses and the appellant's payment for the burial and funeral costs; it appears the funeral home was paid in October 2007 and May 2008, and the cemetary was paid in June 2008.

At this juncture, the Board notes that to the extent that the appellant alleges that the Veteran was buried on May 30, 2006, this is inconsistent with the death certificate and the statement from the cemetary, which record the Veteran's burial as May [redacted], 2006.  The May 2010 statement of the case also alerted the appellant to this burial date as considered for the purposes of the claim.  In sum, the appellant was on notice of the official recorded date of burial and has not provided additional evidence to support a finding to the contrary.  As such, for the purposes of reaching a decision in this case, May [redacted], 2006 is the Veteran's burial date.

The appellant's application for burial benefits was received by VA on May 14, 2008, more than two years after the Veteran's burial.  The appellant acknowledges that she did not submit a claim within two years after the Veteran's burial.  In several written submissions, she essentially asserts that she was unaware of a filing deadline for her application for burial benefits, but was waiting to file the claim until she paid the balance of the expenses on the advice of a VA employee, which took time due to her financial situation.  She first indicated that she was told there was no limit to the date to file the claim, then later stated that she was not informed of a filing deadline.  See October 2008 written statement; May 2010 substantive appeal (VA Form 9), respectively.

Although the appellant may have been unaware of the requirement that an application for nonservice-connected burial benefits must be submitted within two years of the Veteran's burial, the absence of such knowledge cannot serve as the basis for an award of benefits.  Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (persons dealing with the Government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge of the content of the regulation or hardship resulting from innocent ignorance) (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947)); Velez v. West, 11 Vet. App. 148, 156-57 (1998) (citing Morris).

In any event, while the Board acknowledges the late Veteran's wartime service and the appellant's assertions, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis, to include creating exceptions or disregarding this very specific limitation on the award of such burial benefits.  See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).
In addition, nonservice-connected burial benefits in the form of an allowance for internment expenses, to the extent the appellant claims such an expense, must similarly be denied as a matter of law based on the date of filing outside of the prescribed two-year period.  38 C.F.R. § 3.1601(a).

For the foregoing reasons, the Board concludes that the claim for nonservice-connected burial benefits must be denied, as the requirements under the statue and implementing regulations are not met.  See Sabonis v. Principi, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law).


ORDER

Entitlement to nonservice-connected burial benefits is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs