Citation Nr: 1317099 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-40 530A ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to additional burial benefits. 2. Entitlement to accrued benefits, to include the timeliness of the claim. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active service from March 1951 to March 1954. Upon his discharge from the US Army, the Veteran served in the US Army Reserves. He died on August [redacted], 2008. The appellant is the Veteran's adult daughter. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal of actions of the Pension Management Center in St. Paul, Minnesota, of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for the cause of the Veteran's death along with entitlement to dependent and indemnity compensation (DIC) benefits have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issues, and they are referred to the AOJ for appropriate action. FINDINGS OF FACTS 1. The Veteran died on August [redacted], 2008. 2. On September 23, 2008, a letter decision was issued by the RO concerning burial benefits. In that letter, the appellant was informed that burial benefits, including funeral expenses and a cemetery plot allowance, were awarded at the rate allowed by law for a veteran who died because of a nonservice-connected disorder. 3. The appellant filed a claim for additional burial benefits and accrued benefits that was received on January 22, 2010. 4. The Veteran's death was not due to a service connected disease or disability. CONCLUSIONS OF LAW 1. The criteria for payment of service-connected burial benefits have not been met. 38 U.S.C.A. §§ 2302, 2303, 2304, 2307, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.312, 3.1600, 3.1601 (2012). 2. The criteria for entitlement to payment of accrued benefits have not been met. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). The RO provided a June 2011 letter in which it provided notice of the evidence needed to substantiate entitlement to additional burial benefits on the basis that the Veteran's death was caused by a service connected disease or disability. It outlined what evidence VA would obtain and what evidence she was responsible for obtaining. The letter contained information on the remaining Dingess elements. The timing deficiency with regard to the notice was cured by readjudication of the claim in a supplemental statement of the case issued in July 2011. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) The June 2011 letter also provided notice with regard to the accrued benefits claim. As set forth in more detail below; however, the facts in this case are not in dispute and the appeal must be denied as a matter of law. Thus, any deficiency in VA's VCAA notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). With regard to the burial benefits claim, the Veteran's service treatment records and relevant VA records are contained in the claims folder. The appellant has not reported any evidence that would support the claim; nor is there any indication that the conditions that caused the Veteran's death were service connected. The Veteran's death certificate indicates that he died as an inpatient at the Matagorda General Hospital. The appellant has not authorized VA to obtain these records; although the June 2011 letter provided her with authorization forms and advised her to either complete and return them so that VA could obtain relevant records; or to submit relevant records herself. There suggestion in the record that there is additional evidence that would be reasonably likely to substantiate the claim. Absent some indication as to how the causes of the Veteran's death might be related to service, there is no need for a medical opinion. Further assistance is therefore not required. 38 C.F.R. § 3.159(d) (2012). Background The Veteran served in the United States Army and after he finished his basic training, he was transferred and assigned to the Aberdeen Proving Ground in Maryland. A review of the Veteran's DD 214, Report of Separation from the Armed Forces of the United States, indicates that he did not have any foreign service. His rank when his enlistment was completed was that of a private first class. Service connection was not established for any disease or disability during the Veteran's lifetime. In June 1991, the Houston, Texas RO denied the Veteran's claim for service connection for hearing loss. The decision was not appealed and no pertinent evidence was received within one year of the notice of the decision. In November 1997, the Veteran was granted a nonservice-connected pension. Pension could not be paid to the Veteran because his yearly income exceeded the base income allowed by law. In October 2003, the appellant, on behalf of her father, submitted a claim for VA compensation benefits. Included with the application was a statement in which the appellant averred that the Veteran was exposed to radiation, Agent Orange, mustard gas, and asbestos and he fought in World War I, World War II, and Vietnam. The Veteran's claim was subsequently denied via a rating action issued in April 2004. Similar claims were denied in September 2006 and again in May 2007. In May 2008, special monthly pension was awarded on account of the need for aid and attendance, effective January 24, 2008. In July 2008, the RO received an application for compensation and pension benefits. Before any action could be taken on that application, the Houston RO received a VA Form 21-530, Application for Burial Benefits. The form was received on September 3, 2008. On that form, it was noted that the Veteran had passed away on August [redacted], 2008; and that he had been buried at a private cemetery and not a national or state cemetery. The form listed the total funeral expenses along with the cost of the land where the Veteran was interred. The appellant indicated that she was not claiming that his death was the result of a service connected disease or disability. Subsequent to the appellant's request for burial benefits, the Houston RO sent a letter to the appellant informing her that it would be making a payment to the funeral home used by her family for the burial of the Veteran. The letter was dated September 23, 2008. It was written in the letter that a total of $600.00 (US dollars) would be paid to the funeral home - $300.00 (US dollars) for funeral expenses and $300.00 (US dollars) for cemetery/plot costs. The appellant was told that the amount paid was the amount that is allowed for a veteran whose death was not related to military service. The appellant was further told: The appellant contacted the RO. When the appellant contacted the RO, she submitted a request for reimbursement of funeral expenses. She also asked to be paid any financial benefits that were due to her father at the time of his death. In other words, she submitted a claim for accrued benefits. Another form claiming burial benefits was received by VA on January 22, 2010. On this form the appellant indicated that she did not know if the Veteran's death was the result of a service connected disease or disability. In a report of contact dated later in January 2010, it was noted that the appellant was claiming that her father's death was due to a service connected disease or disability. I. Burial Benefits Burial benefits and allowances will be paid at differing rates when certain conditions are met. Specifically, if a Veteran's death is the result of a service-connected disability, burial benefits may be paid in an amount not to exceed the greater of $2,000.00 (US dollars), or the amount authorized to be paid under section 8134(a) of title 5 in the case of a Federal employee whose death occurs as the result of an injury sustained in the performance of duty. 38 U.S.C.A. § 2307 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1600(a) (2012). If a Veteran's death is not the result of a service-connected disability, benefits currently in an amount not to exceed $300.00 (US dollars) may be granted if, at the time of his death, the Veteran was in receipt of pension or compensation. 38 U.S.C.A. § 2302(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1600(b) (2012). In addition, if the eligible veteran was not buried in a national cemetery, an additional $300.00 (US dollars) is payable for a plot or internment allowance. 38 U.S.C.A. § 2303(b) (West 2002 & Supp. 2012). Nevertheless, as stated, additional burial benefits or benefits paid at a higher level may only occur in the event that a veteran dies as a result of service-connected disability. 38 U.S.C.A. § 2307; 38 C.F.R. § 3.1600(a) (2012). In this case, the evidence has not shown that the appellant's father died as a result of a service-connected disability. His death certificate indicates that the immediate cause of death was sepsis due to or as a consequence of end stage congestive heart failure, due to or as a consequence of hypoxemia, due to or as a consequence of dementia. Old age and a do not resuscitate order were listed as conditions that significantly contributed to death but did not cause death. The appellant has not provided any evidence or specific statements indicating how the conditions that caused the Veteran's death might be related to service, and there is no other such evidence in the claims file. The service treatment records contain no reports of the conditions that caused the Veteran's death. As such the weight of the evidence is against a finding that the cause of death was related to a service connected disease or disability. Absent a showing that a service connected disease or disability caused the Veteran's death, there is no other basis for payment of additional burial benefits. 38 U.S.C.A. § 2307; 38 C.F.R. § 3.1600(a). II. Accrued Benefits Upon the death of a veteran, periodic monetary benefits to which he was entitled, on the basis of evidence in the file at the date of death (accrued benefits) and due and unpaid for a period of not more than two years prior to death, may be paid to certain parties, including those who bore the expenses of a veteran's final illness up to the extent of such payments. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2012). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c) (West 2002). As outlined above, the Veteran, with the assistance of the appellant, submitted a claim for VA compensation one month prior to his death. That claim was pending at the time of his death. Following his death, the appellant submitted a claim for burial benefits. While the application for burial benefits was received on September 3, 2008, there is no indication in that application, that she was claiming accrued benefits. There is no legal or regulatory provision providing that a claim for burial benefits will be recognized as a claim for accrued benefits. Cf. 38 C.F.R. § 3.152 (2012). The appellant did not submit a claim, or any kind of statement that could be considered a claim, for accrued benefits until January 22, 2010. This was one year, five months, ten days after the death of the Veteran on August [redacted], 2008. Under the facts and controlling law, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, at 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). Here, the application for accrued benefits was not submitted until one year, five months after the death of the Veteran. The appellant has not argued that a timely claim for accrued benefits was filed - she merely claims that she is entitled to any monies owed to the Veteran at the time of his death. As the claim for accrued benefits was not filed within one year after the Veteran's death, the appellant's claim must be denied. See 38 U.S.C.A. § 5121(c) (West 2002). ORDER 1. Entitlement to service-connection burial benefits is denied. 2. The claim for accrued benefits is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs