Citation Nr: 1327247	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  13-02 863	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office and Pension Center in Milwaukee, Wisconsin


THE ISSUE

Entitlement to nonservice-connected burial benefits beyond the $650.00 paid by VA in June 2012.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel



INTRODUCTION

The Veteran served on active duty from June 1953 to May 1955, and died in January 2012.  The appellant is his son.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Center in Milwaukee, Wisconsin.


FINDINGS OF FACT

1.  During the Veteran's lifetime, service connection was established for only one disability - schizophrenia - which was not listed as a cause or contributory cause of death.

2.  The evidence does not establish that the appellant paid burial, funeral, and transportation expenses related to the Veteran's death.


CONCLUSION OF LAW

The criteria for nonservice-connected burial benefits beyond the $650.00 paid by VA in June 2012 are not 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 CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2012); however, it is apparent that such notice is not required in this case since the benefits sought are authorized in Chapter 23 of Title 38, United States Code.  See Simms v. Nicholson, 19 Vet. App. 453, 456   (2007) (holding that the VCAA applied only to the award of benefits under Chapter 51, Title 38, United States Code); Barger v. Principi, 16 Vet. App. 132, 138 (2002) (the notice and duty to assist provisions of the VCAA are relevant to a different Chapter of Title 38 and do not apply to benefits under Chapter 23).

Certain burial benefits and reimbursement for burial expenses are available for claimants depending on the status of the eligible individual.  Thus, the status of the deceased veteran or other eligible individual must first be determined.  For example, if a veteran dies as a result of a service-connected disability or disabilities, a specific amount may be paid toward a veteran's funeral and burial expenses including the cost of transporting the body to the place of burial.  38 U.S.C.A. § 2307 (West 2002); 38 C.F.R. § 3.1600(a).  In this case, there is no contention that the Veteran died as a result of a service-connected disability.  While the Veteran was in receipt of nonservice-connected pension when he died in January 2012, service connection was not established for any disability during his lifetime. 

Regarding veterans who did not die of service-connected disabilities, a sum not exceeding a $300 burial allowance is payable in the case of a deceased veteran who was, at the time of death, in actual receipt of, or but for the receipt of retirement pay, would have been entitled to receive, disability compensation, to such person as VA prescribes to cover the burial and funeral expenses of the deceased veteran and the expense of preparing the body and transporting it to the place of burial.  38 U.S.C.A. § 2302(a) (1); 38 C.F.R. § 3.1600(b) (1).  The record reflects that VA notified Majestic Mortuary Service in a June 2012 letter that it would pay a $300.00 burial allowance for the Veteran's funeral costs.  If eligibility exists for a burial allowance due to disability compensation under 38 U.S.C.A. § 2302, and is not buried in a national cemetery or other cemetery under the jurisdiction of the United States, a plot allowance may be paid.  38 U.S.C.A. § 2303(b); 38 C.F.R. § 1.600(f) (1).  The June 2012 letter also notified Majestic Mortuary Service that VA would pay $350.00 for cemetery/plot costs.  

The appellant was notified of VA's decision to make these payments in a separate June 2012 letter.  He argued in two separate letters in reply to VA that (1) the payment to Majestic Mortuary of the $650.00 total allowance was in error, and (2) that Majestic Mortuary had already settled with the Veteran's life insurance company, Western and Southern Insurance, and had informed him that no further monies were owed.

Regarding all veterans, claims for burial allowance may be executed by: (i) the funeral director, if entire bill or any balance is unpaid (if unpaid bill or the unpaid balance is less than the applicable statutory burial allowance, only the unpaid amount may be claimed by the funeral director); or (ii) the individual whose personal funds were used to pay burial, funeral, and transportation expenses; or (iii) the executor or administrator of the estate of the veteran or the estate of the person who paid the expenses of the veteran's burial or provided such services.  If no executor or administrator has been appointed, claim for the plot or interment allowance may be filed by a person designated by the State.  38 C.F.R. § 3.1601(a) (1).

To that end, the record does not establish that the appellant paid burial, funeral, and/or transportation expenses related to the Veteran's death, and thus, is not a proper claimant for any additional funds from VA beyond the $650.00 paid to Majestic Mortuary Services in June 2012.  The record contains a copy of the itemized funeral expenses statement from Majestic Mortuary Service that is signed by the appellant in acknowledgment of assumption of the expenses, totaling $5,306.30.  The mortuary facility, Majestic Mortuary Service, submitted a bill showing that VA paid a total of $650.00 towards the funeral experiences (two separate payments of $300.00 and $350.00 in June 2012), and that the Veteran's life insurance company paid a total of $3,749.94, leaving a balance of $906.36.  None of the records submitted reflects that the appellant personally paid this balance, wholly or in part.  Accordingly, the appellant cannot assert entitlement to reimbursement for the $906.36 remaining in expenses from Majestic Mortuary Service.

In sum, entitlement to burial benefits is strictly prefaced on specific statutory and regulatory conditions.  The Board finds that because the evidence does not establish that the appellant paid burial, funeral, and transportation expenses related to the Veteran's death, the appellant does not have standing to assert entitlement to reimbursement for the remaining expenses related to the Veteran's funeral.  Where the law is dispositive, the claim must be denied due to a lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to nonservice-connected burial benefits beyond the $650.00 paid by VA in June 2012 is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs