Citation Nr: 1322138	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  09-20 163	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to VA burial benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel




INTRODUCTION

The Veteran had active service from June 1961 to August 1973, including service in the Republic of Vietnam from August 4, 1970, to August 2, 1971.  The Veteran died in April 2006 and the appellant is his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 administrative decision of the Atlanta, Georgia, Regional Office (RO), denying entitlement to payment of VA burial benefits.  

A January 2007 RO decision denied the appellant's service connection claim for the cause of the Veteran's death; however, the record contains no statement or submission that can reasonably be construed to expresses disagreement with the determination.  That matter is not before the Board.


FINDINGS OF FACT

1.  At the time of his death, the Veteran was not receiving VA service-connected compensation or nonservice-connected pension benefits.

2.  The Veteran died at his residence under hospice care in April 2006 from esophageal cancer, a disability for which service connection had not been established or claimed.

3.  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 proper prior authorization and at VA expense to a specified place for the purpose of examination, treatment, or care.

4.  The Veteran's burial/final expenses were paid by an insurance company and not the appellant.  


CONCLUSION OF LAW


The criteria for payment of VA burial benefits have not been 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

Pursuant to the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA is not applicable to this claim because claims for burial benefits are found in Title 38, United States Code, Chapter 23, and not the Chapter changed by the VCAA.  Cf. Barger v. Principi, 16 Vet. App. 132 (2002) (noting that duties imposed on VA by the VCAA are limited to claims found in Title 38, United States Code, Chapter 51).  

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.

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); 38 C.F.R. § 3.1600(b).

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).  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, 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 enroute 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).

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 his or her discharge from service, but after his or her death the discharge has been corrected by competent authority so as to reflect a discharge under conditions other than dishonorable, 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) (claims for service-connected death and burial allowance) or for the cost of transporting a Veteran's body to the place of burial under 38 C.F.R. §§ 3.1600(c) or (g).  38 C.F.R. § 3.1601. 

Background and Analysis

The Veteran's death certificate shows that he died as a result of esophageal cancer under hospice care at his residence. 

Because his residence was not under VA jurisdiction, a facility at which VA provided recreational activities, or a licensed institution, the Veteran was not properly "hospitalized" for VA purposes at the time of his death and his residence did not qualify as a "nursing home."  See Melson v. Derwinski, 1 Vet. App. 334 (1991); see also 38 U.S.C.A. §§ 1703, 1720, 1741; 38 C.F.R. § 3.1600(c).  

The Veteran was eligible for burial in a national cemetery.  See 38 C.F.R. § 38.620(a).  

The May 2006 itemized bill from the funeral home, consistent with the appellant's initial June 2006 claim, reflect that insurance benefits satisfied the Veteran's final burial expenses totaling $5,787.65.  See 38 U.S.C.A. §§ 2302, 2303(b)(2); 38 C.F.R. § 3.1600(f)(1).  Therefore, contrary to her July 2006 VA Application for Burial Benefits, the most probative evidence of record indicates the appellant did not incur personal burial expenses in connection with the Veteran's death.  

There is no contention or evidence that the Veteran (A) died traveling, at properly preauthorized VA expense, for the purpose of examination; (B) established service connection for any disability during his lifetime, including esophageal cancer; (C) was in receipt of VA service-connected or nonservice-connected compensation pension benefits at the time of his death; or (D) died as a result of a disability that is service connected or for which service connection is warranted.  See 38 C.F.R. §§ 3.1600(a), (b), 3.1605(a).

The Board is sympathetic with the appellant's loss and acknowledges the Veteran's many year of honorable service to our country; however, as a matter of law, entitlement to VA burial benefits is not warranted.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  


ORDER

Entitlement to VA burial benefits is denied.  



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs