Citation Nr: 1337005	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  10-45 147	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to nonservice-connected burial allowance and plot and interment allowance.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The appellant 



ATTORNEY FOR THE BOARD

J.M. Rutkin


INTRODUCTION

The Veteran served honorably on active duty from December 1943 to January 1946, during World War II.  He died in November 2009.  The appellant is his daughter. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The appellant testified at a hearing before the undersigned in July 2013.  A transcript is of record. 

The appellant submitted additional evidence after the appeal was certified to the Board and, in a July 2013 statement, waived her right to initial consideration of this evidence by the agency of original jurisdiction (AOJ).  See 38 C.F.R. § 20.1304(c) (2013) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant).  


FINDINGS OF FACT

1. The Veteran died in November 2009 and was buried in a national cemetery.  

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 and burial 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 nonservice-connected burial benefits have not been met. 38 U.S.C.A. §§ 2302, 2303 (West 2002 & Supp. 2013); 38 C.F.R. § 3.1600 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Procedural Due Process

Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), VA has duties to notify and assist claimants in substantiating claims for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  However, because the law, and not the evidence, determines the outcome of this claim, the VCAA does not apply.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  

Likewise, any errors related to the hearing officer's duties under 38 C.F.R. § 3.103(c)(2) (2013) are moot.  Moreover, the undersigned elicited testimony specific to the criteria applicable to burial benefits.  Accordingly, no prejudice exists with regard to VA's duties to notify and assist or the hearing officer's duties under section 3.103(c)(2).  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010) (holding that an error that does not affect the outcome of a case is not prejudicial).  Accordingly, the Board will proceed with appellate review. 

II. Analysis

The Veteran died in November 2009, as reflected in the Certificate of Death.  The appellant submitted an invoice showing that she bore his funeral and burial expenses. 

An application for nonservice-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 (West 2002); 38 C.F.R. § 3.1601(a) (2013).  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.  Id.  As the appellant's claim was filed within these time limits, the threshold requirement of a timely application is satisfied. 

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 (West 2002); 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.  Therefore, 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. 

The above criteria for funeral and burial expenses have not been satisfied.  Service connection had not been established for any disability at the time of the Veteran's death in November 2009, and he was not receiving any VA compensation or pension benefits.  Further, the record not reflect that there was an original or reopened claim for compensation or pension benefits pending at the time of his death, and the appellant does not assert 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.  Moreover, the Veteran's body was not held by a State and unclaimed.  Finally, the Veteran did not die at a VA facility.  According to the appellant's hearing testimony, the Veteran died at a non-VA facility, and there is no evidence that he was hospitalized with VA's prior authorization and at VA's expense.  Thus, entitlement to nonservice-connected burial benefits is not warranted.  See id.

The Board has considered the appellant's contention that the Veteran's Naval ship (the U.S.S. Gregory) was fired upon by Japanese airplanes during World War II, and that he experienced "nightmares and mental anguish" as a result of the attack in subsequent years, as reflected in a May 2012 statement by the appellant.  However, because service connection had not been established for a psychiatric disorder at the time of the Veteran's death, and he did not otherwise meet the criteria for burial expenses under 38 U.S.C.A. § 2302 and 38 C.F.R. § 3.1600, entitlement to burial benefits may not be granted as a matter of law. 

In addition to the benefits provided for under 38 U.S.C.A. § 2302, 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 United States, VA shall pay a sum not exceeding $300 as a plot or interment allowance to such person as VA prescribes if such veteran is eligible for a burial allowance under 38 U.S.C.A. § 2302, died while admitted to a VA facility, or was discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty.  38 U.S.C.A. § 2303(b)(2).  For claims filed on or after December 16, 2003, plot or interment allowance is payable to the person or entity who incurred the expenses if: (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, and (iii) the applicable further provisions of 38 C.F.R. § 3.1600 and §§ 3.1601 through 3.1610 are met.  38 C.F.R. § 3.1600(f). 

Here, because the Veteran was buried in a national cemetery, as reflected in the invoice for funeral expenses and as indicated in the appellant's application for burial benefits, and because he did not otherwise meet the criteria for burial benefits under 38 U.S.C.A. § 2302, the criteria for entitlement to a plot or interment allowance have not been satisfied.  See id. 

The Board is grateful for the Veteran's honorable service during World War II, and takes this opportunity to express its sympathy for the appellant's loss.  The Board also recognizes the financial burden imposed by the burial expenses she incurred.  However, entitlement to burial benefits is strictly limited to the statutory and regulatory criteria for such benefits, 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 (West 2002); 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 nonservice-connected burial and plot and interment benefits have not been met, and therefore 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).  Accordingly, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  


ORDER

Entitlement to nonservice-connected burial allowance and plot and interment allowance is denied. 



____________________________________________
P.M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs