Citation Nr: 1332294 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-31 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to non-service-connected burial benefits. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to October 1982. He died in July 2009. The appellant is the Veteran's surviving spouse. In support of her claim, the Appellant testified at Travel Board hearing held at the RO in April 2013 before the undersigned Veterans Law Judge of the Board. During the hearing, the undersigned identified the issue on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Appellant through her testimony, with the assistance of her representative, demonstrated actual knowledge of the elements necessary to substantiate the claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. During the April 2013 Travel Board hearing, the appellant submitted additional evidence, and waived the right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2013). The additional evidence received at the April 2013 Travel Board hearing consists of legal documentation regarding her marital status in conjunction with a claim for dependency and indemnity compensation (DIC) benefits. Potentially this is an attempt to reopen the DIC claim, last denied by the RO in April 2011, on the basis that requested information had not been received. That issue or a reopened claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran died in July 2009 at his sister's residence, and he was cremated. The appellant's application for non-service connected burial benefits was received in August 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 cremation 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 non-service connected burial benefits have not been met. 38 U.S.C.A. §§ 2302-2308 (West 2002); 38 C.F.R. §§ 3.1600-3.1610 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking entitlement to non-service connected burial benefits. The Veteran died in July 2009 and he was cremated. The appellant claims $2,219.55 as expenses for the Veteran's cremation. 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 February 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; or (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 non-service 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), which is inapplicable in this case, as the Veteran was cremated. 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 non-service connected burial benefits was timely filed in August 2009; however, the Board finds that the criteria for payment of non-service connected burial benefits under 38 C.F.R. § 3.1600(b) and (c), have not been met. Specifically, the Veteran had not been granted service connection for any disability at the time of his death in July 2009, 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 in any war, and he was not discharged or released from active service for a disability incurred or aggravated in the line of duty nor was his body held by a State. The appellant contends that reimbursement of non-service connected burial benefits is warranted since the Veteran was hospitalized at a VA facility on the day of his death on July 8, 2009, and when he died he was under hospice care authorized by VA. The evidence confirms that sometime in June 2009, with several life limiting diagnoses, the Veteran travelled from Rhode Island to the state of Washington to visit relatives. There he apparently resumed care at a VA facility. In late June 2009, the Veteran was referred to a county facility for hospice care at his sister's house. In early July, 2009 the Veteran presented to an emergency ward and was then admitted to a VA facility for shortness of breath and paracentesis. He received therapeutic treatment and he received a regular discharge. VA records show that the Veteran returned to his sister's home and there he received hospice nurse care. VA records show that phone calls from the hospice nurse and Veteran's sister indicated that his condition quickly declined, and while a return to the VA hospital was considered, it was later decided otherwise. The Veteran's death ensued on July 8, 2009. The Certificate of Death indicates that the Veteran's death occurred at his sister's residence. The evidence shows that the Veteran was hospitalized at a VA facility near the time of his death, even the day of his death, but he did not die while hospitalized at a VA hospital. The Veteran received home hospice care at his sister's house at the time of his death, but the care was not at a VA facility or an authorized VA facility. The regulations in this regard are very specific in these circumstances. 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. The Board acknowledges and appreciates the Veteran's honorable military service, and is sympathetic to the loss the appellant has suffered, as well as to the financial burden imposed on her by the Veteran's burial or cremation expenses. However, entitlement to non-service connected burial benefits is strictly prefaced on specific statutory and regulatory conditions, 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 non-service 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 non-service connected burial benefits is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs