Citation Nr: 1325691 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-12 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to nonservice-connected burial benefits. WITNESSES AT HEARING ON APPEAL Appellant and P.A. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1942 to December 1947. The Veteran died in 2009. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appellant had a Travel Board hearing before the undersigned Veterans Law Judge on July 10, 2012. The Board has reviewed the Veteran's physical claims file as well as the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was buried in a private cemetery. The appellant's application for nonservice-connected burial benefits was received in July 2009. 2. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 3. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran's death. 4. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 5. The Veteran's body was not unclaimed, and the appellant paid all funeral expenses. 6. 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. CONCLUSION OF LAW The criteria for payment of nonservice connected-burial benefits have not been met. 38 U.S.C.A. §§ 2302-2308 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1600-3 .1610 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The appellant had a hearing at the RO in July 2012 before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain the outstanding issues relevant to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. During the hearing, the presiding VLJ reminded the appellant of the pertinent issue on appeal - her claimed entitlement to nonservice-connected burial benefits - and of how VA determines the issue. She did not raise any new issues pertaining to this claim during the course of the hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id. at 496-97. The appellant has not alleged that there were any deficiencies in the conducting of that hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Analysis The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to this claim. A burial allowance is payable under certain circumstances to cover expenses of the burial or cremation, funeral, and transportation of the deceased veteran's body to the place of burial. See 38 U.S.C.A. §§ 2302, 2303, 2307; 38 C.F.R. § 3.1600. Certain amounts are payable if a veteran dies as a result of a service-connected disability or disabilities, as set forth in 38 C.F.R. § 3.1600(a). In this case, there is no claim, or any other indication, that the Veteran's death was related to service. See July 2009 application for burial benefits (indicating no claim that the Veteran's cause of death was due to his service). As such, these provisions are inapplicable. If a veteran's death is not service-connected, a burial allowance may be paid if one of the following conditions is met: (1) the veteran was in receipt of VA pension or compensation (or but for the receipt of military retired pay the veteran would have been in receipt of compensation) at the time of death; (2) the veteran had an original or reopened claim for either benefit pending at the time of death, and certain evidentiary criteria are met; 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 the body is unclaimed and there are insufficient resources in the veteran's estate to cover burial and funeral expenses. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). Alternatively, a burial allowance may be paid if a veteran dies from non-service connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. 38 U.S.C.A. § 2303(a); 38 C.F.R. §§ 3.1600(c), 3.1605. 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). Here, the appellant's claim for reimbursement of nonservice-connected burial benefits was timely filed in July 2009; however, the Board finds that the criteria for payment of nonservice-connected burial benefits under 38 C.F.R. § 3.1600(b) have not been met. Specifically, the Veteran had not been granted service connection for any disability at the time of his death, and he was not receiving any VA compensation or pension benefits. Further, the evidence does not reflect that there was an original or reopened claim for either benefit pending at the time of his death, nor does the appellant claim that any such claim was pending. Additionally, the Veteran was not discharged or released from active service for a disability incurred or aggravated in the line of duty. The Veteran's body was not held by a State, and the appellant claimed his body. Entitlement to nonservice-connected burial benefits is prefaced on specific statutory and regulatory requirements, which have not been met in this case. The Board has no authority to grant claims on an equitable basis and must follow the applicable provisions of law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In conclusion, the basic eligibility requirements for nonservice-connected benefits have not been met, and the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law). Generally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, as 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). ORDER Entitlement to nonservice-connected burial benefits is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs