Citation Nr: 1331107	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  12-11 686	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to nonservice-connected burial benefits, to include a plot or interment allowance.


ATTORNEY FOR THE BOARD

K. Gielow, Counsel


INTRODUCTION

The Veteran served on active duty from January 1946 to December 1947.  He died in March 2010.  The appellant is the Veteran's surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin.  

In April 2013, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The Veteran died in March 2010; the appellant submitted an application for burial benefits in October 2010.

2.  At the time of his death, the Veteran was not receiving VA compensation or pension benefits; there was no claim for compensation or pension pending. 

3.  The Veteran did not die while in a VA medical center, domiciliary, or nursing home, or at a facility under contract with VA, or while traveling under proper prior authorization and at VA expense to a specified place for the purpose of examination, treatment, or care.

4.  The Veteran was not buried in a national or state-owned cemetery and was not otherwise discharged from service for a disability incurred in or aggravated in the line of duty.




CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected burial benefits, to include a plot or interment allowance, have not been met.  38 U.S.C.A. §§ 2302, 2303 (West 2002); 38 C.F.R. § 3.1600 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION
  
I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

With regard to notice, the Board remanded this case in April 2013 to provide the claimant with adequate notice of how to substantiate her claim for burial benefits.  She was subsequently provided with a sufficient notification letter.

With regard to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  As an initial matter, all relevant evidence necessary for an equitable resolution of the appellant's claim has been identified and obtained to the extent possible.  The Board acknowledges that this appears to be a rebuilt folder, but the claims file and electronic record on Virtual VA contains documents beginning with the appellant's initial application for burial benefits and throughout the subsequent appeal.  These records include submissions and supporting documentation directly from the appellant, VA adjudication documents, and other pertinent information, such as VA treatment records.  There is no indication that there is any missing evidence, and with the April 2013 notice letter, the appellant was encouraged to submit evidence going to any of the qualifying factors for nonservice-connected burial benefits, but she did not respond with any additional evidence or identify any other potential sources of relevant information.

Additionally, the Board is satisfied that there has been substantial compliance with the Board's prior remand.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a remand confers upon the appellant the right to substantial, but not strict, compliance with that order).  In addition to sending the appellant proper notification, a copy of the death certificate was made available as requested, and the AOJ contacted a representative of the hospital where the Veteran passed away to determine whether the hospital had contracted with VA to furnish emergency care to veterans.  Thus, there is no Stegall violation in this case, and the Board may proceed to adjudicate the claim at this time based on the evidence of record.    

II.  Burial Benefits/Plot or Interment Allowance

Applications for burial benefits "must be filed within two years after the burial of the veteran."  38 U.S.C.A. § 2304.  In this case, the appellant, who is the Veteran's surviving spouse, submitted an application for burial benefits in October 2010, which is well within the two-year time period.  Thus, based on the above factual history, the claim has been timely filed.

The Board notes that, at the time of his death, the Veteran was not in receipt of VA compensation or pension and did not have any service-connected disabilities.  There is no indication, nor is it contended, that the Veteran's death was due to a service-connected disorder.  In fact, on her claim for burial benefits in October 2010, the appellant specifically denied that the Veteran's death was caused by his service.  Accordingly, the question is whether the appellant is eligible for benefits on a nonservice-connected basis.  

A survivor can qualify for reimbursement of burial expenses for the nonservice-connected death of a veteran if:

(1) At the time of death the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or

(2) The veteran has an original or reopened claim for either benefit pending at the time of the veteran's death . . . ; 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 (or a political subdivision of a State), and the Secretary determines, (i) [t]hat there is no next of kin or other person claiming the body of the deceased veteran, and (ii) [t]hat there are not available sufficient resources in the veteran's estate to cover burial and funeral expenses[.] 

38 C.F.R. § 3.1600(b)(2013); see also 38 U.S.C.A. § 2302(a).  

In this case, however, the Board finds that nonservice-connected burial benefits are not warranted.  As an initial matter, the evidence does not indicate that the Veteran was in receipt of any compensation or pension.  Specifically, as discussed above, the Veteran was not in receipt of any disability compensation at the time of his death, nor is there any indication that he was ever receiving pension or disability compensation at the time of his death.  Nor does the evidence indicate that the Veteran had an original or reopened claim that was pending at the time of his death.  Indeed, it does not appear that he ever submitted such a claim.  Finally, it has not been shown that the Veteran had no next of kin to recover his body, such that the provisions of 38 C.F.R. § 3.1600(b)(3) would apply.  

Notwithstanding the above, burial benefits may also be paid "[i]f a person dies from non-service-connected causes while properly hospitalized by VA."  38 C.F.R. 
§ 3.1600(c).  For burial allowance purposes, the term "hospitalized by VA" means admission to a VA facility (as described in 38 U.S.C.A. § 1701(3)) for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C.A. § 1710 or 1711(a); admission (transfer) to a non-VA facility (as described in 38 U.S.C.A. 
§ 1701(4)) for hospital care under the authority of 38 U.S.C.A. § 1703; admission (transfer) to a nursing home under the authority of 38 U.S.C.A. § 1720 for nursing home care at the expense of the U.S.; or admission (transfer) to a state nursing home for nursing home care with respect to which payment is authorized under the authority of 38 U.S.C.A. § 1741.  Id.

Here, it is the appellant's contention that the Veteran was under VA care at the time of his death even though he was taken to a local emergency room department due to the emergent nature of his last illness prior to his death.  In support of her claim, she submitted financial records showing that the Veteran had made several payments to VA for treatment purposes.  Thus, eligibility for burial benefits turns on whether the Veteran's March 2010 hospitalization at Lake West Hospital falls within the umbrella of being "properly hospitalized by VA."  

After carefully reviewing the evidence, the Board finds that § 3.1600(c) does not apply because the Veteran was not admitted to a non-VA facility under the provisions of section 1703.  Section 1703 provides, in pertinent part:

When Department facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing the care or services required, the Secretary, as authorized in section 1710 of this title, may contract with non-Department facilities in order to furnish . . . [h]ospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility or nursing home care until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility.

38 U.S.C.A. § 1703(a)(3).  Generally, to be eligible to receive care at a non-VA facility at VA's expense, the treatment at the non-VA facility "must be authorized in advance [or, i]n the case of an emergency which existed at the time of admission, an authorization may be deemed a prior authorization if an application . . . is dispatched to [VA] . . . within 72 hours after the hour of admission[.]"  38 C.F.R. 
§ 17.54(a).  

In order for § 3.1600(c) to be satisfied, there must be an "admission (transfer) to a non-VA facility . . . for hospital care under the authority of 38 U.S.C.A. § 1703."  38 C.F.R. § 3.1600(c).  Here, a review of the evidence reflects that the Veteran was not in a VA facility and then transferred to Lake West Hospital; in fact, he last reported for VA outpatient treatment on March 16, 2010, approximately two weeks prior to his subsequent hospitalization and death.  Rather, according to the appellant, he was brought directly to the non-VA facility.   See Zimick v. West, 
11 Vet.App. 45, 52 (1998) ("In order to 'transfer' to a non-VA facility, a patient already would need to be in a VA facility.")   Moreover, on remand, a representative from Lake Health was contacted and asked to determine whether Lake West Hospital contracted with VA to furnish emergency medical care to veterans.  The representative stated, however, that to the best of her knowledge, no such contract with VA existed.  Thus, eligibility under 3.1600(c) has not been established.

The Board also considered whether the appellant is entitled to a plot or interment allowance under 38 U.S.C.A. § 2303.  The Board notes that the provisions of 
38 C.F.R. § 3.1600(f) were amended in April 2006.  71 Fed. Reg. 44915, 44919-20 (Aug. 8, 2006).  The current provision states that, for claims filed on or after December 16, 2003, a plot or interment allowance is payable to the person or entity who incurred the expenses in an amount not to exceed the amount specified in 
38 U.S.C.A. § 2303(b) (or if the entitlement is under § 3.40 (c) or (d), an amount computed in accordance with the provisions of § 3.40(c)) if the following conditions are met:

(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 this section and §§ 3.1601 through 3.1610.

38 C.F.R. § 3.1600(f)(1) (2013). 

Read in isolation, it appears these requirements have been met; however, this regulation must also be considered in context with the basic eligibility requirements for payment for a plot or interment allowance that are set forth in the governing statute.  The provisions of 38 U.S.C.A. § 2303 authorizes payment for plot or interment in only two situations.  The first is when a veteran dies in:

(A) a facility of the Department (as defined in section 1701(3) of this title) to which the deceased was properly admitted for hospital, nursing home, or domiciliary care under section 1710 or 1711(a) of this title; or

(B) an institution at which the deceased veteran was, at the time of death, receiving (i) hospital care in accordance with section 1703 of this title;(ii) nursing home care under section 1720 of this title; or (iii) nursing home care for which payments are made under section 1741 of this title. 

38 U.S.C.A. § 2303(a).  The second situation is in the case of a veteran who is eligible for burial in a national cemetery under 38 U.S.C.A. § 2402 and who is not buried in a national cemetery or other cemetery under the jurisdiction of the U.S. (1) if such veteran is buried in a cemetery, or a section of a cemetery, that is owned by a State or by an agency or political subdivision of a state, and (2) if such veteran is eligible for a burial allowance under 38 U.S.C.A. §  2302 or under 38 U.S.C.A. 
§ 2303(a) above, or was discharged from the active military, naval, or air service for a disability incurred or aggravated in line of duty, and such veteran is buried in a cemetery, or a section of a cemetery, other than a state-owned cemetery.  38 U.S.C.A. § 2303(b).  

In this case, the Board finds that the criteria for a plot or interment allowance are not met since the Veteran did not die in a Department facility or institution as set forth in 38 U.S.C.A. § 2303(a)(2); was not buried in a state or national cemetery as set forth in 38 U.S.C.A. § 2303(b)(1); and was not otherwise discharged from service for a disability incurred in or aggravated in the line of duty as set forth in 
38 U.S.C.A. § 2303(b)(2).  The evidence of record demonstrates that the Veteran died at Lake West Hospital, a private facility (see March 2010 death certificate); his plot was located at All Souls Cemetery in Cleveland, Ohio, which is part of the Catholic Cemeteries Association (see Installment Contract); and he was not discharged from service due to a service-related disability.  Accordingly, the appellant does not meet any of the statutory criteria that would entitle her to a plot or interment allowance under 38 U.S.C.A. § 2303 and 38 C.F.R. § 3.1600(f).

For all of the above reasons, the Board concludes that the eligibility requirements for nonservice-connected burial benefits, to include a plot or interment allowance, have not been met.  Therefore, the appellant's claim must be denied.


ORDER

Nonservice-connected burial benefits, to include a plot or interment allowance, is denied.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs