Citation Nr: 1323369 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-06 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to non-service connected burial benefits. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from March 1956 to March 1959. He died in November 2008. The appellant is the Veteran's wife who has standing in this case as the person who paid the Veteran's burial expenses. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2009 rating decision. The appellant was scheduled for a hearing before the Board in April 2013 however she failed to appear. No written request for a new hearing was submitted and therefore appellate review will continue as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d). The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the documents on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died in a private hospital in November 2008 as a result of conditions which have not been alleged to have been related to his honorable military service. 2. At the time of the Veteran's death, he was not in receipt of either VA compensation or pension benefits. 3. At the time of the Veteran's death, he did not have pending an original or reopened claim for compensation or pension. 4. The Veteran was not a veteran of any period of war. 5. At the time of the Veteran's death, he was neither hospitalized by VA nor traveling under proper authority and at VA expense for the purpose of examination, treatment, or care. CONCLUSION OF LAW The criteria for burial benefits are not met. 38 U.S.C.A. §§ 2302, 2303, 2305, 2307 (West 2002); 38 C.F.R. §§ 3.954, 3.1600, 3.1601, 3.1605 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case the appellant is seeking burial benefits for her father, the Veteran. Specific to claims for 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 amounts as authorized may be paid toward the veteran's funeral and burial expenses. 38 C.F.R. § 3.1600(a). However, in this case the record does not establish, and the appellant does not allege, the Veteran's death was due to service-connected disabilities. Therefore entitlement to burial benefits under section 3.1600(a) is not established. If a veteran's death is not a result of service-connected disability or disabilities, entitlement to payment of benefits toward his funeral and burial expenses including the cost of transporting the body to the place of burial 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 compensation); (2) the veteran had an original or reopened claim for either benefit pending at the time of his death and (i) in the case of an original claim, there is sufficient evidence of record on the date of the veteran's death to have supported an award of compensation or pension effective prior to the date of his death; or (ii) 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 prior to the date of death; 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). However, the Board finds none of the conditions under section 3.1600(b) are met in this case. The record does not establish, and the appellant has not alleged, that the Veteran was in receipt of pension at his time of death or the Veteran had a claim for benefits pending at his time of death. Additionally the Veteran served only during peacetime and was not a veteran of any war. Therefore entitlement to benefits under 38 C.F.R. § 3.1600(b) is not established. Finally, 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 or § 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). In this case the record reflects the Veteran was not hospitalized at a VA facility at his time of death, but rather was hospitalized at St. Mary's Hospital. In her April 2009 written notice of disagreement the appellant stated that the Veteran went to the VA hospital in August 2008 and was diagnosed with pneumonia. The Veteran was not able to see his treating physician at that time, but another physician saw the Veteran, prescribed medication, and sent him home. The appellant asserted the Veteran's condition continued to worsen, however, and on August 17, 2008 they had no choice but to call the rescue squad. The appellant stated she requested the Veteran be brought to the VA hospital but the squad determined the he needed to go to the nearest medical facility, St. Mary's Hospital. The appellant stated the Veteran was admitted into ICU and placed on a ventilator, where he remained for the next four weeks until he passed away. The appellant asserted that the Veteran should not have been sent home by the VA physician in August 2008, but instead should have been admitted at that time due to his poor condition. The Board is sympathetic to the appellant's claim; however the evidence of record simply does not establish the Veteran passed away while properly hospitalized by the VA. The appellant herself has consistently stated the Veteran was hospitalized at St. Mary's Hospital at his time of death. The record includes a report of phone contact dated June 2009 in which the VA hospital reported the Veteran was treated in August 2008, evaluated, and released. He did not pass away until November 2008. The VA facility specifically stated the Veteran was not under the VA's care at his time of death. Thus, the Board finds the Veteran did not die while properly hospitalized by VA, but instead was hospitalized by a private hospital at his time of death. There is no indication in the record that such involved admission to a non-VA facility for hospital care under 38 U.S.C.A. § 1703. Furthermore, he did not die enroute while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care. Accordingly, the criteria for entitlement under 38 C.F.R. §§ 3.1600(c) and 3.1605(a) are simply not met. Based on the foregoing, therefore, the Board concludes that the legal requirements for burial benefits, either service-connected or nonservice-connected, have not been met. The Board is sympathetic toward the appellant's claim and greatly appreciates the Veteran's honorable service to his country. Unfortunately, the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Consequently, the appellant's claim for burial benefits must be denied. Duties to Notify and Assist The Board observes that 38 U.S.C.A. §§ 5103(a) and 5103A and 38 C.F.R. § 3.159 impose obligations on VA in terms of its duty to notify and assist claimants. As explained above, however, the law, and not the evidence, is dispositive in this case. Hence, VA's duties to notify and assist claimants pursuant to the above-noted legal authority are not applicable. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, even if the Board was to presume, for the sake of argument, that there is some deficiency insofar as preliminary VA notice and development, such would be inconsequential and, therefore, at most harmless error. As such, there is no prejudice to the appellant in the Board proceeding to adjudication of this claim. ORDER The claim for VA burial benefits is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs