Citation Nr: 1324288 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-10 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to nonservice-connected burial benefits. ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from July 1944 to February 1946. He died in February 2007. The appellant is his son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A review of the Virtual VA electronic record associated with the appellant's claim reveals no additional pertinent evidence as the documents are duplicative of records already in the paper claims file. FINDINGS OF FACT 1. The Veteran died in February [redacted], 2007, from nonservice-connected causes and was permanently buried on February [redacted], 2007. 2. The appellant's claim for nonservice-connected VA burial benefits was received by VA on March 5, 2009, more than two years after the permanent burial of the Veteran's body. 3. 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 (West 2002); 38 C.F.R. §§ 3.1600, 3.1601(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's 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). In the instant 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). Analysis The appellant is seeking 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, 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 his 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, and the Secretary determines i) that there is no next of kin or other person claiming the body of the deceased veteran, and ii) that there are not available sufficient resources in the veteran's estate to cover burial and funeral expenses; and the applicable further provisions of 38 C.F.R. § 3.1600 and 38 C.F.R. §§ 3.1601 through 3.1610. 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). When a veteran dies from nonservice-connected causes, an amount not to exceed a certain amount may be paid as a plot or interment allowance. Entitlement to a plot or interment allowance is subject to the following conditions: (i) the deceased veteran is eligible for burial in a national cemetery; (ii) the veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States; (iii) the applicable further provisions of 38 C.F.R. § 3.1600 and 38 C.F.R. §§ 3.1601 through 3.1610. 38 C.F.R. § 3.1600(f). See 38 U.S.C.A. § 2303. Applications for payments of burial and funeral expenses, to include plot or interment allowance under 38 U.S.C.A. § 2302, must be filed within two years after the burial of the veteran. 38 U.S.C.A. § 2304; 38 C.F.R. § 3.1601(a). This 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 at a VA facility pursuant to 38 C.F.R. § 3.1600(c), or for burial in a national cemetery pursuant to 38 C.F.R. § 3.1600(g). 38 C.F.R. § 3.1601(a). The Certificate of Death shows that the Veteran died on February [redacted], 2007 at Pleasant Lake Villa, which was classified as a nursing home/long term care facility. The evidence of record shows that the Veteran was permanently buried in a private cemetary on February [redacted], 2007. At the time of his death, the Veteran was not service-connected for any disabilities. Thus, as the Veteran did not die of a service-connected disability, did not die in a VA facility, and was not buried in a national cemetery or cemetery owned by the federal government, a burial allowance is available only if an application for burial benefits was received within two years of his permanent burial. 38 C.F.R. § 1601. The appellant's application for burial benefits was received by VA on March 5, 2009, more than two years after the Veteran's February [redacted], 2007 burial. The appellant acknowledges that he did not submit a claim within two years of the Veteran's burial. He has essentially asserted, however, that his failure to do so was because he was unaware of any entitlement to the benefit. Although the appellant may have been unaware of the requirement that a claim for burial benefits 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 (1991), Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); Velez v. West, 11 Vet. App. 148 (1998). Persons dealing with the government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App at 265. The legal criteria in this case are clear and the pertinent facts are not in dispute. The appellant did not submit his claim for burial benefits within two years of the Veteran's permanent burial. While the Board sympathizes with the appellant, acknowledges the Veteran's wartime service, and fully understands the appellant's contentions, unfortunately, the Board is nonetheless bound by the law and is unable to grant benefits on an equitable basis because it has no authority to create exceptions, or to overturn or to disregard this very specific limitation on the award of burial benefits. 38 U.S.C.A. § 7104(a); see Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). In Harvey, the Court pointed out that it is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. Id. at 424, citing OPM v. Richmond, 496 U.S. 414, 430, 110 S.Ct. 2465, 2474 (1990). 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. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs