Citation Nr: 1343299 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 10-39 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to nonservice-connected burial benefits, to include a plot or interment allowance. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to December 1953, and he died in July 2009. The appellant is his daughter. This matter is on appeal from an October 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In December 2012, the Board remanded the case to the RO for additional development, after which the case was returned to the Board for further consideration. FINDINGS OF FACT 1. The Veteran died in July 2009 at his residence from natural causes - arteriosclerotic disease of the heart and hyperlipidemia, with contributing factors of heart failure, coronary artery disease, and cardiomyopathy; he was buried that month in a private cemetery. 2. The appellant, the Veteran's daughter, paid for the Veteran's funeral expenses and filed an application for burial benefits, to include a plot or interment allowance, in September 2009 for the nonservice-connected death; there is no evidence to show the appellant's personal funds were used to defray the cost of any plot expenses. 3. At the time of his death, the Veteran was not receiving VA compensation or pension benefits, and did not have a claim for compensation or pension pending. 4. 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 entitlement to nonservice-connected burial benefits, to include a plot or interment allowance, are not met. 38 U.S.C.A. §§ 2302, 2303 (West 2002); 38 C.F.R. §§ 3.1600-1610 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Ace of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Here, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran served on active duty from March 1952 to December 1953. He died in July 2009 from natural causes. In September 2009 the appellant submitted an application for burial benefits, which indicates that the Veteran was interred in July 2009, within days of his death. Of record is a funeral home expense report, which indicates that it was she who was contractually required to pay $6,015.13 to cover the costs of the funeral goods and services. Additional evidence in the file indicates that in September 2009, the appellant remitted payment to the funeral home in the amount of $6,531.13, to cover the costs of funeral goods and services as well as a monument ($6,015.13 plus $516). There is no record of the appellant having paid for the cost of the burial plot, which was $600 as indicated in her application for burial benefits. It is noted at the outset that claims for a burial allowance may be executed only by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses." 38 C.F.R. § 3.1601(a)(1). Likewise, a claim for a plot allowance may be executed by "[t]he person(s) whose personal funds were used to defray the cost of the plot or interment expenses." 38 C.F.R. § 3.1601(a)(2)(ii). Thus, based on the above factual history, the claim has been timely filed, and the appellant is the party with legal standing to submit the claim for a burial allowance. However, the appellant has not submitted the threshold evidence required to show she has legal standing to submit the claim for a plot allowance. By letter in January 2013, the RO specifically asked her to submit evidence showing the cost of a plot or gravesite and who paid such charges. To date she has not done so, and without proof that the appellant's funds were used to defray the cost of the plot expenses, the Board may not consider her application for a plot allowance. In any case, as will be explained below, even if there was a valid receipt showing that the appellant had purchased a plot, a grant of her claim for a plot allowance would still not be warranted. According to the Veteran's death certificate, the cause of death was arteriosclerotic disease of the heart and hyperlipidemia, with heart failure, coronary artery disease, and cardiomyopathy as contributing factors. At the time of his death, the Veteran had not established service connection for any disability. 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 September 2009, the appellant specifically denied that the Veteran's death was due to his service. Accordingly, only the appellant's eligibility for benefits on a nonservice-connected basis may be considered. 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, but only under certain circumstances. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b). Specifically, if the cause of a veteran's death is not service-connected, entitlement is based upon the following conditions: 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, the veteran had an original claim for either benefit pending at the time his death for which there was evidence available on the date of death to support the award for compensation or pension or, in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, 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 there is no next of kin and the veteran's estate funds are insufficient to cover expenses. See 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 nonservice-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. See 38 U.S.C.A. § 2303(a); 38 C.F.R. §§ 3.1600(c), 3.1605. 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; 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). The appellant's claim for nonservice-connected burial benefits was timely filed in September 2009; however, the Board finds that none of the criteria for payment of nonservice-connected burial benefits under 38 C.F.R. § 3.1600(b) are met. First, it is not shown that the Veteran was receiving VA compensation or pension; in fact, the record does not show he had any disability that was service-connected. Second, the record also does not show that the Veteran had a claim for compensation or pension pending at the time of his death. The record does not show that he ever filed such a claim. Third, while service department records show the deceased was a veteran of the Korean War (earning the Korean Service Medal and a Combat Medic Badge), the evidence does not indicate that the Veteran had no next of kin, especially as the appellant in this case is his daughter. Finally, the record does not show the Veteran died while hospitalized by VA in a VA or non-VA facility. The death certificate shows, and the appellant states, that the Veteran died at his own residence in July 2009. Therefore, burial benefits are not warranted on the foregoing bases. As was noted earlier, the appellant's claim for burial benefits included a claim for a plot allowance. She has not furnished evidence to show she actually paid for the $600 burial plot out of her personal funds, so the initial requirement for establishing entitlement to a plot allowance is not met. Notwithstanding the lack of a receipt for payment of a burial plot, her claim would still be denied. The law provides for the payment of plot or interment allowance in certain circumstances. For a claim filed on or after December 16, 2003, entitlement to a plot or interment allowance is subject to the following conditions: (1) the deceased veteran is eligible for burial in a national cemetery; (2) the veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States; and (3) the applicable further provisions of 38 C.F.R. § 3.1600 and §§ 3.1601 through 3.1610 [that is, a plot allowance is not precluded by any other provision of 38 C.F.R. § 3.1600 or by 38 C.F.R. §§ 3.1601-3.1610]. See 38 U.S.C.A. § 2303(b); 38 C.F.R. § 3.1600(f)(1). Here, the Veteran is considered to have been a "veteran" for VA purposes such that he was eligible to have been buried in a national cemetery (see 38 C.F.R. § 38.620(a)), and his death certificate shows that he was not buried in a national cemetery or other cemetery controlled by the United States. Nevertheless, the appellant's claim for plot or interment allowance would fail as the Veteran was not eligible for a burial allowance (under 38 C.F.R. § 3.1600(b)), and he did not die while admitted to a VA facility (under 38 C.F.R. § 3.1600(c)), as previously explained. Nor was the Veteran discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty, for a service-connected death (under 38 C.F.R. § 3.1600(a)). In other words, plot allowance would be precluded by other applicable provisions of 38 C.F.R. § 3.1600. Consequently, the Board finds that the legal requirements for entitlement to a plot or interment allowance have not been met, and the appellant's claim would necessarily be denied. The appellant contends that nonservice-connected burial benefits are warranted, asserting essentially that such benefits should be awarded based on the Veteran's honorable service and his receipt of military retired pay at the time of his death. However, the record does not show, and the appellant has not submitted, any evidence that, but for the receipt of military retired pay, the Veteran would have been in receipt of VA pension or compensation at the time of death. Although the Board is sympathetic to the appellant's claim, entitlement to burial benefits is based upon specific and unambiguous requirements that have not been met in the instant case. The Board has no authority to grant claims on an equitable basis but is constrained to follow specific provisions of law. See 38 U.S.C.A. § 7104(c) (West 2002). The Board emphasizes, however, that the denial of this claim does not in any way diminish the Veteran's distinguished service. In sum, the evidence does not indicate that any of the conditions for burial benefits as set forth by 38 C.F.R. § 3.1600 have been met. Accordingly, there is no legal entitlement to a burial allowance under this provision, and the appeal must be denied. ORDER The appeal seeking entitlement to nonservice-connected burial benefits, to include a plot or interment allowance, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs