Citation Nr: 1326874 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-18 357A ) DATE ) ) On appeal from the Department of Veterans Affairs National Cemetery Administration Scheduling Office in St. Louis, Missouri THE ISSUE Entitlement to reimbursement of expenses for interring the appellant's mother at a private cemetery not administered by the National Cemetery Administration. WITNESSES AT HEARING ON APPEAL Appellant and her sister ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from April 1947 to August 1967. The Veteran died in March 1995; the present appellant is the Veteran's step-daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 decision by the Department of Veterans Affairs (VA) National Cemetery Administration (NCA) Scheduling Office in St. Louis, Missouri, which denied authorization for the appellant's mother to be buried at Fort Mitchell National Cemetery alongside the Veteran, based on a finding that she was not married to the Veteran at the time of his death and thus was not the Veteran's surviving spouse. The appellant has clarified that the benefit she seeks on appeal is not to have her mother reinterred at the Fort Mitchell National Cemetery; rather, she seeks reimbursement of expenses incurred in burying her mother elsewhere. The Board has accordingly recharacterized the issue on appeal to comport with the benefit actually sought. In January 2011 the appellant and her sister testified before the undersigned Veterans Law Judge in a videoconference hearing from the VA Regional Office (RO) in Montgomery, Alabama. A transcript of their testimony is of record. FINDINGS OF FACT 1. The appellant's mother was not a veteran. 2. VA is not permitted by applicable statutes and regulations to provide reimbursement for burial of a non-veteran at a private cemetery. CONCLUSION OF LAW A claim for restitution of expenses for interring the appellant's mother at a private cemetery not administered by the National Cemetery Administration must be denied as a matter of law. 38 U.S.C.A. Chapters 23 and 24 (2002); 38 C.F.R. Chapter 3, Subpart B and Chapter 38 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Initially, the Board notes that 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 have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As will be explained, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the specific duties to notify and assist imposed by VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Nevertheless, the Board finds that the NCA has explained to the appellant the basis for the finding that the claimed benefit was denied. The appellant has not asserted any prejudice in regard to the content or timing of the notice she has received. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The NCA also afforded the appellant the opportunity to present information and evidence in support of the claim. The appellant was afforded a hearing before the Board in which she and a witness (her sister) presented oral evidence supporting the appellant's theory of entitlement to the benefit claimed. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge identified the issues to the appellant and asked specific questions directed at identifying whether the appellant's mother, for whom the benefit is claimed, met the criteria for burial at a National Cemetery. Both the appellant and her witness (the appellant's sister) volunteered the marital history of the Veteran and the appellant's mother. The appellant has not asserted that VA failed in any way to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the appellant provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. The appellant has not made the Originating Agency or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and she had not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the appellant in the adjudication of her appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the appeal. Applicable Legal Principles The spouse or surviving spouse (which includes an unremarried surviving spouse who had a subsequent remarriage that was terminated by divorce) may be buried in a cemetery controlled by the NCA. 38 U.S.C.A. § 2402(5) (2002); 38 C.F.R. § 38.620(e) (2012). VA may pay an allowance for a plot or interment for a qualifying veteran to be buried at a cemetery other than a national cemetery; 38 C.F.R. § 3.1600(f). VA may also pay to have the body of a qualifying veteran moved to a national cemetery for reinterment. 38 C.F.R. § 1600(g). Claims for reimbursement of direct payment for burial and funeral expenses for qualifying veterans are enumerated in 38 C.F.R. § 3.1601. There is no provision in these regulations for reimbursement of burial or funeral expenses for family members, to include a surviving spouse. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Review of the file shows that the Veteran was married to the appellant's mother, Ms. KW, on June [redacted], 1973. That marriage was terminated by a divorce decree dated January [redacted], 1995. The divorce decree is associated with the claims file. The document stipulates that the decree was subject to appeal within 42 days and that neither party could marry, except to each other, within 60 days. However, nothing within the four corners of the divorce decree suggests or implies that the divorce was not final on the date signed; i.e., January [redacted], 1995. The Veteran died on March [redacted], 1995. The Veteran's death certificate lists his marital status as "divorced" and notes Ms. KW, née KF, as the "informant" whose relationship to the Veteran was "friend." The Veteran was buried at Fort Mitchell National Cemetery. The Board notes at this point that the Veteran's death certificate creates the presumption that Ms. KW herself, as the "informant," provided the Veteran's biographical elements that were recorded on the death certificate, to include his marital status. This creates the further presumption that Ms. KW herself did not consider herself to be married to the Veteran at the time of his death. In December 1998 Ms. KW applied to VA for Dependency and Indemnity Compensation (DIC) survivor benefits. She stated in her claim that she and the Veteran were going through the divorce process at the time of his death but the divorce did not become final. The RO issued a decision in September 1998 denying death pension benefits because the evidence showed her to have been divorced from the Veteran at the time of his death. Ms. KW resubmitted a claim for DIC in January 2003, again asserting her divorce with the Veteran was not final. The RO denied the claim by a decision in July 2003, again based on a finding that she and the Veteran were divorced at the time of his death. Ms. KW submitted a timely Notice of Disagreement (NOD), and the RO issued a Statement of the Case (SOC) continuing the denial of death pension benefits. Ms. KW thereupon submitted a substantive appeal to the Board. Before the DIC claim could be considered by the Board, the RO determined that Ms. KW and the Veteran were married under common law, in that after the divorce decree the claimant filed a joint tax return for the year 1995. The RO found this joint filing showed that Ms. KW had held herself out as husband-and-wife and was thus considered to be married "by federal statute." The RO issued a rating decision in May 2006 that granted DIC benefits (service connection for cause of the Veteran's death and Dependents' Educational Assistance). The RO subsequently granted Ms. KW aid and attendance effective from January 2003, which apparently was paid until her death. The appellant's mother, Ms. KW, died on January [redacted], 2010. Her death certificate shows her marital status as "married" (not widowed or divorced) to the deceased Veteran. The intended place of disposition was Fort Mitchell National Cemetery. The file contains an undated letter from Sconiers Funeral Home indicating that the present appellant had provided the information on the death certificate, and that she had reported to the funeral home that the couple was not married but that Ms. KW had a military identification (ID) card and drew the Veteran's benefits monthly. In addition to the death certificate, the funeral home faxed to the NCA a copy of Ms. KW's military ID card and her marriage certificate to the Veteran. The ID card in question lists the Veteran as sponsor, retired and deceased. Ms. KW is listed as URW (unrelated wife/widow). The NCA representative contacted the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio, and ascertained that Ms. KW could have been entitled to benefits based on having been married to the deceased Veteran for at least 10 years while he was on active duty; thus, the possession of an ID card did not necessarily reflect that Ms. KW was recognized by DFAS as the Veteran's surviving spouse. The file contains a memorandum by NCA employee GB, dated January [redacted], 2010. GB stated therein that he called the appellant and informed her that the Veteran's death certificate showed his marital status to be "divorced." The appellant stated this was an injustice to her mother but that she would make other funeral arrangements. GB then informed the funeral home that burial at the national cemetery was not approved. The file contains an undated letter from the appellant to her United States Congressional Representative complaining that NCA's refusal to allow burial at the national cemetery had created shame and stress, because her mother was actually the Veteran's lawful widow as demonstrated by the fact that she was drawing VA survivor benefits. She also complained that NCA's decision has cost the family money, in that they had to unexpectedly and hurriedly buy a burial plot elsewhere. The appellant testified before the Board in January 2011 that the Veteran and Ms. KW filed for divorce prior to the Veteran's death, but stated that the divorce would not have become final until March [redacted], 1995; because the Veteran died ten days earlier (on March [redacted], 1995) the divorce was not final. She testified that Ms. KW had always expressed a desire to be buried next to the Veteran, and that NCA's denial of that entitlement had caused hardship and extra pain to the family. She stated the family had to hurriedly buy an alternative burial plot, at the cost of $4,600.00; there was also the embarrassment of having to delay the funeral for several days when guests had come from out of town for the planned event at the national cemetery. She stated she did not want to re-inter Ms. KW at Fort Mitchell national cemetery at this point, because she is now resting in peace; rather, she was seeking reimbursement of the expenses she incurred due to the denial. On review of the file, the Board notes at the outset that the Veteran and Ms. KW were legally divorced on January [redacted], 1995. Ms. KW insisted during her lifetime, and the present appellant continues to insist, that the divorce was not final at the time of the Veteran's death, but plain reading of the decree shows that the divorce was final when signed. The Board notes in that regard that the designation of a period for appeal defines the period during which a given decision may be challenged by a party to that decision, but does not connote that the decision or judgment itself is anything other than final when issued. Ms. KW appeared to be cognizant of that fact when she identified the Veteran as "divorced" on his death certificate. The Board acknowledges that the RO granted survivor benefits to Ms. KW during her lifetime. This was not due to a finding that the divorce had not become final; rather, it was based on a determination that the Veteran and Ms. KW had entered a common-law marriage after such divorce. The RO's finding of a common-law marriage was based on the RO's interpretation of an unidentified "federal statute." However, under the statutes and regulations applicable to veterans' benefits, the validity of a marriage is determined "according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued." 38 U.S.C.A. § 103(c). There is no indication in this case that the RO's decision in May 2006 applied Georgia law in finding the existence of a common-law marriage (the Board notes that Georgia ended common-law marriage in January 1997 but still recognized such marriages in 1995). In fact, under Georgia law as it previously existed, common law marriage occurred when a man and woman cohabited and proclaimed to the public that they were husband and wife; thus, a joint tax filing submitted by one party some time after the other party's death would not have been sufficient to show a common law marriage. However, it is not necessary for the Board to make a determination as to whether the appellant's mother was the lawful surviving spouse of the Veteran, because such a determination is irrelevant to the adjudication of the benefit sought on appeal. The appellant does not seek to have her mother (re)interred at Fort Mitchell National Cemetery; in fact, she specifically disavows any such intent. Rather, she seeks restitution for the money she spent to have her mother buried in an alternative private cemetery. There is no provision under existing statute or regulation for VA to pay directly, or to reimburse, the burial or funeral expenses for a non-veteran at a private cemetery, regardless of whether the deceased was the lawful surviving spouse of a qualifying Veteran. Thus, the relief sought by the appellant - reimbursement of burial expenses for a non-veteran at a private cemetery - is not a benefit that VA can provide. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to the requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result of a particular case since such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). The appellant's claim for restitution is a claim for equitable relief. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 USCA § 503; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Based on the evidence and analysis above, the Board finds the appellant has requested a benefit that VA cannot provide under the law. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. Harvey, 6 Vet. App. 416, 425. Accordingly, the claim must be denied. Because the prepondance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Reimbursement of expenses for interring the appellant's mother at a private cemetery not administered by the NCA is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs