Citation Nr: 1319100 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 12-00 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to nonservice-connected burial benefits. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from September 1948 to December 1952. He died on June [redacted], 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died on June [redacted], 2009, and the appellant's application for nonservice-connected burial benefits was received in May 2010. 2. Service connection was not in effect for any disability during the Veteran's lifetime. 3. At the time of death, the Veteran was not in receipt of VA compensation or pension benefits, nor was a claim for such benefits pending. 4. The Veteran served from September 1948 to December 1952, which included service during the Korean conflict. 5. The evidence does not show that the Veteran was discharged from service due to a disability incurred or aggravated in the line of duty. 6. The Veteran's body was not unclaimed, and the appellant paid all funeral expenses in full. 7. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for the purpose of examination, treatment, or care. 8. The Veteran is not buried in a cemetery, or a section thereof, that is owned by a State or Federal government, and he is not eligible for burial in a national cemetery. CONCLUSION OF LAW The criteria for establishing entitlement to burial benefits are not met. 38 U.S.C.A. §§ 2302, 2303, 2307, 5107 (West 2002); 38 C.F.R. § 3.1600 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). However, given that the law as mandated by statute, and not the underlying facts or development of the facts, is dispositive of the appellant's claim, these provisions are not applicable to the instant appeal. See Kane v. Principi, 17 Vet. App. 97, 103 (2003); Mason v. Principi, 16 Vet. App. 129, 132 (2002). In any event, she was advised of the requirements for burial benefits in a May 2010 letter. Nonservice-Connected 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; 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 a veteran's death is not service-connected, payment may be made toward the veteran's funeral and burial expenses, including transportation, 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 retired pay would have been in receipt of such); or (2) 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; or (3) the veteran served during a period of war, or was discharged or released from active service for a disability incurred or aggravated in the line of duty, and his or her body is being held by a State, and there is no next of kin claiming the body and there are insufficient resources in the veteran's estate to cover burial and funeral expenses. 38 C.F.R. § 3.1600(b) (2012). Expenses are also payable if a veteran dies from nonservice-connected causes while hospitalized by VA, which requires either hospitalization at a VA facility or at a non-VA facility pursuant to VA directive for acute medical care. 38 C.F.R. § 3.1600(c) (2012). Hospitalization also includes residence at a domiciliary or nursing home under VA authority. Expenses are also payable if the veteran died while traveling pursuant to VA authorization and at VA expense for the purpose of examination, treatment, or care. 38 C.F.R. § 3.1605(a) (2012). 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 the instant case, service connection has not been established for the cause of the Veteran's death, and according to the appellant's application for burial benefits in May 2010, she is not claiming that the Veteran's cause of death was related to service. Therefore the provisions relating to service-connected burial allowance are inapplicable. The appellant's claim for reimbursement of nonservice-connected burial benefits was timely filed, within one year after the Veteran's death in June 2009. The Veteran was not in receipt of either VA compensation or pension at the time of his death, nor does a review of the Veteran's claims file indicate that a claim for either benefit had been pending on the date of his death. Additionally, the Veteran was not in receipt of military retired pay "in lieu of" compensation or pension when he died. Further, the Veteran was not discharged or released from active service for a disability incurred or aggravated in the line of duty. Although the Veteran served from September 1948 to December 1952, which included time during the Korean conflict, his body was not held by a State. Moreover, the appellant claimed the Veteran's body, and the appellant paid all funeral expenses in full. In addition, the death certificate shows that the Veteran died at his residence. Accordingly he did not die at a VA hospital, at a non-VA medical facility where he was receiving treatment pursuant to VA directive, at a nursing home or domiciliary under VA authority, or during transport to a medical facility. The Board acknowledges the appellant's contentions that she should be entitled to burial benefits because the Veteran served his country honorably. While the Board is sympathetic to the appellant's argument, it must nevertheless be pointed out that the law sets out specific criteria that must be satisfied before VA burial benefits can be awarded, and does not allow the Board any discretion in this manner. As noted above, service connection for the cause of death has not been established, nor are the other criteria met. Thus, the law in this case is dispositive. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (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). The appellant's claim for non-service connected burial benefits, accordingly, fails. The Board notes that the law also provides for the payment of plot or interment allowance in certain circumstances. Entitlement to a plot or interment allowance for a claim filed on or after December 16, 2003 is subject to the following conditions: (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) The applicable further provisions of 38 C.F.R. § 3.1600 and §§ 3.1601 through 3.1610. 38 C.F.R. § 3.1600(f)(1) (2012). In the present case, the Board acknowledges that the Veteran was considered a "veteran" for VA purposes such that he was considered eligible to have been buried in a national cemetery, see 38 C.F.R. § 38.620(a), but he is not buried in a national cemetery or other cemetery controlled by the United States. The appellant's claim for plot or interment allowance fails, however, as the Veteran was not eligible for a burial allowance under 38 U.S.C.A. § 2302, did not die while admitted to a VA facility, nor was he discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty. Consequently, the Board finds that the legal requirements for entitlement to a plot or interment allowance have not been met, and the appellant's claim must be denied. Accordingly, a claim for payment of plot or interment allowance must fail. While the Board greatly appreciates the Veteran's service to this country, there is unfortunately no basis upon which the claim for burial benefits can be granted. The Board has considered the applicability of the benefit of the doubt doctrine, but finds that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to nonservice-connected burial benefits is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs