Citation Nr: 1326843 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-14 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to dependency and indemnity compensation (DIC) benefits. 2. Entitlement to reimbursement of burial expenses for death due to a service-connected disability. ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active military service from August 1969 to August 1971. He died in September 2009. These issues appealed to the Board of Veterans' Appeals (Board) from a November 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which notified the appellant of the denial of a claim for Dependency and Indemnity Compensation (DIC) benefits and a March 2010 letter decision indicating that burial benefits in the amount of $300.00 would be paid to the funeral director. As the appellant lives in Tennessee, the RO has been changes as is reflected on the first page of this decision. FINDINGS OF FACT 1. The appellant lacks standing to pursue a claim for DIC benefits. 2. The Veteran did not die due to a service-connected disability. CONCLUSIONS OF LAW 1. As the appellant is not an eligible claimant for purposes of receiving benefits for service connection for the cause of the Veteran's death, his claim for DIC benefits is without legal merit. 38 U.S.C.A. §§ 1310, 1302 (West 2002); 38 C.F.R. §§ 3.50, 3.57, 3.59, 3.312 (2012). 2. The Veteran did not die due to a service-connected disability. 38 C.F.R. § 3.1600 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). As will be explained below, the claim herein decided lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter). The Board further notes that, in this case, the RO denied the appellant's claim upon consideration of the merits of a claim for service connection for the cause of the Veteran's death but did not consider whether he had standing to bring such a claim. However, as a threshold requirement, an appellant who files an appeal must have standing. For an appellant to have standing, that individual must demonstrate that he or she has been injured and has a "personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Belton v. Principi, 17 Vet. App. 209, 211 (2003); Redding v. West, 13 Vet. App. 512, 514 (2000). As detailed below, the appellant is not an eligible claimant to receive benefits related to service connection for the cause of the Veteran's death as a matter of law, and therefore has no standing to pursue a claim requiring a finding of service connection for the cause of the Veteran's death. In light of the above, and because, lacking standing, the appellant can never prevail on this matter, he is not prejudiced by the Board considering, fundamentally, whether he has standing to pursue the instant claim, or by its denial of the claim on a basis different than the RO. Regulations and Analysis The basic facts in this case are not in dispute. The Veteran died in September 2009. His death certificate lists the immediate cause of death as chronic obstructive pulmonary disease (COPD). The informant is listed as the Veteran's sister-in-law. The Veteran's marital status is listed as "divorced" on the death certificate. The appellant in this case is the Veteran's brother. The term "burial benefits" means payment of money toward funeral and burial expenses. See 38 C.F.R. §§ 3.1600(a), (b) . If a Veteran dies as a result of a service-connected disability, an additional burial allowance is payable. 38 U.S.C.A. § 2307; 38 C.F.R. § 3.1600. As noted in the Introduction, this appeal originates from a claim for burial benefits by the appellant. In March 2010, the RO awarded nonservice-connected burial benefits, but denied entitlement to greater, service-connected burial benefits on the basis that the Veteran's death was not related to service. This letter informed the appellant that a total payment of $300.00 was being paid to West Murley Funeral Home, the original claimant. A September 2009 statement of the funeral expenses indicates that $4,000.31 was due. To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. As mentioned above, the appellant has identified himself as the Veteran's brother. However, benefits based upon a finding of service connection for the cause of the Veteran's death are payable only to the Veteran's surviving spouse, children or parents only. 38 U.S.C.A. § 1310(a); 38 C.F.R. §§ 3.50, 3.57, 3.59. The appellant has not claimed, nor does the record indicate, that he is the Veteran's spouse, parent, or child, or that he is pursuing benefits on behalf of the Veteran's spouse, parent or child. As such, he is not an eligible claimant for benefits based on a finding of service connection for the cause of the Veteran's death, as a matter of law. The pertinent legal authority governing recognition as an eligible claimant for compensation for the cause of the Veteran's death is clear and specific, and the Board is bound by such authority. Accordingly, as the appellant is not an eligible claimant for compensation for the cause of the Veteran's death, his claim for DIC benefits, including service connection for the cause of the Veteran's death, must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Regarding the claim for burial benefits for a Veteran who died of a service-connected disability, the Veteran was service-connected for malaria and Hodgkin's Disease, assigned noncompensable evaluations at the time of his death. These disabilities have not been shown to have caused or contributed materially to the cause of the Veteran's death. The Veteran died of chronic obstructive pulmonary disease, which was not service-connected at the time of his death and was not exhibited in service or for many years thereafter. It is not a disability that is presumed to be related to exposure to herbicides used in the Republic of Vietnam. See 38 C.F.R. §§ 3.307, 3.309. The appellant is not competent to provide a nexus between any incident in service and the Veteran's death. There is no "hypothetical" entitlement written into the governing law. There is no basis to grant burial benefits based on the Veteran dying of a service-connected disability. ORDER Entitlement to DIC and burial benefits for death due to a service-connected disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs