Citation Nr: 1334167 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 05-21 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to non-service-connected burial benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from June 1944 to January 1946. He died in February 2004, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the appellant's claim for non-service-connected burial benefits. This claim was remanded by the Board in October 2007, February 2010, and February 2012 for further evidentiary development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. At the time of the Veteran's death in February 2004, he was not in receipt of VA compensation or pension, had no service-connected disabilities or pending original or reopened claims for compensation or pension, and his body was not held by the State. 2. The appellant is the Veteran's surviving spouse who paid for burial expenses from her personal funds obtained as beneficiary of a life insurance policy. 3. The Veteran was not hospitalized by VA, did not receive care under VA contract at a non-VA facility, and died at a non-VA facility. CONCLUSION OF LAW The criteria for payment of non-service-connected burial benefits are not met. 38 U.S.C.A. §§ 1701, 1703, 1720, 1741, 2302(a) (West 2002); 38 C.F.R. § 3.1600, 3.1605 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist 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 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Here, the RO sent correspondence in March 2004 requesting specific documents relevant to the claim but did not provide a complete explanation of the criteria necessary to substantiate the claim or the appellant's and VA's respective responsibilities to obtain relevant evidence. Therefore, adequate notice was not provided prior to the initial decision in April 2004. However, the RO provided this information in the April 2004 decision, May 2005 statement of the case and October 2010 and July 2013supplemental statements of the case. While such documents may not be used to provide VCAA notice in the first instance, based on such documents, a reasonable person could be expected to understand what was needed to substantiate the claim. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. Further, in many written statements, the appellant provided information or identified sources of information relevant to the criteria, thus demonstrating actual knowledge of what was necessary to substantiate the claim. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any prejudice resulting from any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the AOJ subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the July 2013 supplemental statement of the case. VA has a duty to assist the appellant in the development of the claim. This duty includes assisting her in the procurement of the Veteran's service personnel and treatment records and post-service VA treatment records if any. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's claims file has been merged with the appellant's file and records of private medical care identified by the appellant have been requested and associated with the claims file. In addition, records of telephone inquiries to the private facilities have also been included in the file and considered. In October 2007, February 2010, and February 2012, the Board remanded the case for additional development. In October 2007, the Board directed that the Veteran's claims file be associated with the appellant's claims file. However, such was not accomplished. Therefore, in February 2010, the Board again directed that the Veteran's claims file be obtained, which was subsequently accomplished. The files were combined and is presently before the Board. In February 2012, the Board directed that records from the Tennessee State Veterans' Home (State Home) and the Middle Tennessee Medical Center (MTMC) be obtained. Thereafter, all available records and documents from the State Home and MTMC were associated with the claims file. Therefore, the Board finds that the AOJ has substantially complied with the Board's prior remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claim. II. Analysis The Veteran died in February 2004. The appellant is the Veteran's surviving spouse and contends that she is entitled to a non-service-connected burial allowance. Where a Veteran's death is not service-connected, a burial allowance to cover the burial and funeral expenses, as well as the expense of transporting the body to the place of burial, may be payable under certain circumstances. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). For deaths on or after December 1, 2001, but before October 1, 2011, VA will pay up to $300 toward burial and funeral expenses. See Compensation - Burial Benefits, http://www.benefits.va.gov/compensation/claims-special-burial.asp (last visited Sep. 26, 2013). Specifically, if the cause of a Veteran's death is not service-connected, entitlement is based upon the following conditions: (1) at the time of death, the Veteran was in receipt of pension or compensation; (2) the Veteran had an original or reopened claim for either benefit pending at the time of death and in the case of a reopened claim, there is sufficient prima facie evidence of record on the date of the Veteran's death to show entitlement; 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 the line of duty, and the body of the deceased is being held by a State. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). Alternatively, burial benefits may be paid if a Veteran dies from non-service-connected causes while properly hospitalized by VA in a VA or non-VA facility. 38 C.F.R. § 3.1600(c). A review of the Veteran's claims file reveals that the Veteran was not in receipt of pension or compensation at the time of his death. The Veteran had no service-connected disabilities. The Veteran filed a claim of entitlement to service connection for nervousness upon his discharge from active duty, but this was denied by the RO in a February 1946 rating decision. The record also reflects that the Veteran did not have an original claim pending at the time of his death, nor had he reopened his previously denied claim of entitlement to service connection for nervousness. Finally, the third avenue of recovery noted above is not applicable, as the Veteran's body was not held by a State. Therefore, the only avenue upon which burial benefits can be paid in this case is if it is established that the Veteran died while properly hospitalized by VA in a VA or non-VA facility. 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 United States; or admission (transfer) to a State nursing home for nursing home care for which payment is authorized under 38 U.S.C.A. § 1741. 38 U.S.C.A. § 2303(a)(2); 38 C.F.R. § 3.1600(c). If a Veteran dies en route while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care, burial expenses will be allowed as though death had occurred while properly hospitalized by VA. 38 C.F.R. § 3.1605(a). 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 38 U.S.C.A. § 1710, may contract with non-Departmental facilities in order to furnish medical services for the treatment of any disability of a Veteran who has been furnished nursing home care. 38 U.S.C.A. § 1703(a)(2)(B)(i). The term "non-Department facilities" means facilities other than facilities of the Department (VA). 38 U.S.C.A. § 1701(4). In a March 2004 claim, the appellant provided a copy of expenses incurred for burial services and noted that she was the beneficiary of a commercial life insurance policy. She noted that she authorized the insurance company to pay the expenses directly to the provider of burial services out of her benefits as the beneficiary of the policy. The RO confirmed this method of payment in a telephone call with the service provider in July 2013. In statements received in October 2010 and July 2013, the appellant noted that the Veteran was treated at several medical facilities in Tennessee prior to his death. She reported that the Veteran was taken by ambulance to Sumner County Hospital, then to the VA Medical Center in Murfreesboro, then to the State Home, and then to MTMC where the Veteran died. The appellant contends that the private care was provided by contract with VA. In telephone calls in April 2004, RO representatives contacted the State Home and confirmed that the Veteran had been a patient but was sent to MTMC for inpatient care. The State Home representative stated that the Veteran's place in the home was not held because of Medicaid rules and because the family did not agree to pay for the service. There was no mention of VA funding of care at the State Home. In October 2007 and February 2010, the Board remanded the claim for the RO to merge the claims files of the Veteran and the appellant. This has been accomplished. In February 2012, the Board remanded the claim with instructions for the RO to obtain treatment records and other documents associated with the Veteran's admission and treatment at the State Home and at MTMC around the time of transfer in February 2004 up to the date of death. In response to a December 2012 request to the State Home for records associated with the Veteran's care, a representative returned a handwritten note inconsistently reporting that the Veteran was never a resident at the State Home. However, in a telephone call in July 2013, a representative of the State Home reported that the Veteran was a "private pay" while at their facility and that the Home did not pay for his care at MTMC. There was no mention of any authorizations or payments for care by VA. Records of end of life care at MTMC were recovered and associated with the claims file. In admissions and discharge summary reports, the Veteran's attending physician noted that the Veteran had been recently treated at the Sumner Regional Medical Center for a respiratory exacerbation and transferred to the State Home. He then developed hypoxemia, shortness of breath, and decreased blood pressure with tachycardia and was transferred by ambulance to MTMC where he received emergency treatment and was stabilized. The history noted by the physician was silent for any VA treatment, authorization for care, or intent to transfer the Veteran to a VA Medical Center once stabilized. The Veteran's condition deteriorated and he died six days later. In a July 2013 telephone call, an MTMC representative reported having no billing records for the Veteran to show who was responsible for his charges. The Board concludes that the appellant is not entitled to non-service-connected burial benefits because the Veteran did not die while properly hospitalized by VA in a VA or non-VA facility. The death certificate and MTMC records show that the Veteran died at a non-VA facility and not at a State Home. Although the appellant reported that the Veteran received some care at a VA Medical Center, the available medical records are silent for any such history of care. In fact, the attending physician clearly noted that the Veteran was treated only at a non-VA regional medical center, a State Home, and his private medical center. Although there is some conflicting evidence that the Veteran was a patient at the State Home, the Board finds that the weight of evidence supports his treatment at that State Home but not that payments were authorized by VA under 38 U.S.C.A. § 1741 because representatives referred only to Medicaid and private payers. Therefore, the Board places much less probative weight on the appellant's assertion that VA directed or contracted for the Veteran's care as it conflicts with information obtained directly from the medical facilities. Moreover, the Veteran did not die at the State Home nor was he considered a current Home patient as his room had not been held for his possible return. Although the appellant sincerely believes that VA contracted for care at MTMC, she has not provided or identified any evidence to support the contention. There is no credible evidence from the Veteran's medical care facilities that this was the case. Regrettably, MTMC, the facility where the Veteran died, was unable to recover records to show who was responsible for the medical care charges. However, the medical summaries fail to mention any history of VA care or authorization. Further, representatives from the State Home from which the Veteran transferred referred to Medicaid and private sources of payment for their charges with no mention of prior VA care or VA authorization for care. As the Veteran was age 84 at the time of his death, he may have been eligible for Medicare benefits. Absent records of any care at a VA facility or authorization or contract for care at a non-VA facility, the Board concludes that the Veteran was not hospitalized by VA at the time of his death and that payment of non-service-connected burial benefits is not warranted. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Payment of non-service-connected burial benefits is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs