Citation Nr: 1335455 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-28 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to non-service-connected burial benefits. ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran has recognized guerilla from October 1942 to June 1945. The Veteran died in December 2009. The appellant is the Veteran's daughter. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. The Veteran died in December 2009. The appellant's application for non-service connected burial benefits was received in May 2010. 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 all funeral expenses in full. 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 & Supp. 2013); 38 C.F.R. §§ 3.1600-3.1610 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Veterans Claims Assistance Act of 2000 (VCAA), and its 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 & Supp. 2013); 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). Turning to the issue on appeal, the appellant is seeking entitlement to non-service-connected burial benefits. The Veteran died in December 2009, and he was buried in a non-VA cemetery. The cost of funeral services for the Veteran totaled $20,000 Philippine pesos, or approximately $500 (as of the date of this decision). 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 April 2010 application for burial benefits, § 11 (indicating that the cause of the Veteran's death was not claimed as due to service). Moreover, the Veteran was not service connected for any disability at the time of his death, and he was not in receipt of VA pension benefits. A February 2007 Board decision denied the Veteran's claims for entitlement to service connection for pulmonary tuberculosis, arthritis, heart disease, bronchitis, residuals of a gunshot wound to the left foot, and non-service-connected pension benefits. While that decision also acknowledged the Veteran's recognized guerilla service, these provisions are nonetheless 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). 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 April 2010; however, the Board finds that the criteria for payment of non-service-connected burial benefits under 38 C.F.R. § 3.1600(b) have not been met. Specifically, the Veteran had not been granted service connection for any disability at the time of his death in December 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 discharged or released from active service for a disability incurred or aggravated in the line of duty. The Veteran's body was not held by a State, and the appellant claimed his body. The appellant contends that reimbursement of non-service connected burial benefits is warranted under 38 C.F.R. § 3.1600(b)(1). The appellant contends that these benefits should be awarded on the bases of the Veteran's recognized service, and because he was awarded a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that service (emphasis added). As such, this one-time payment is not considered a pension or compensation benefit. As noted above, nothing in the act prohibits a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of the Act, the Veteran's claims for these benefits were denied by the Board in February 2007. See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). While the Veteran apparently did not receive the payment from the FVEC Fund prior to his death, the fact remains that the award of a payment from the Fund is not evidence of a compensation or pension benefit. The appellant submitted a Certificate of Recognition from the President of the Unites States, honoring and recognizing the Veteran as a member of the U.S. Armed Forces, as well as postal records which indicated payment of the Veteran's one-time FVEC allotment, which was sent to, but not received by the Veteran due to his death. However, and as noted, the record does not show and the appellant has not submitted any evidence that, notwithstanding the issuance of this one-time payment, the Veteran would have been in receipt of VA pension or compensation at the time of death. To be clear, the Board acknowledges and appreciates the Veteran's military service during a period of war, 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 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 therefore 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to non-service-connected burial benefits is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs