Citation Nr: 1431007 Decision Date: 07/10/14 Archive Date: 07/15/14 DOCKET NO. 11-16 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to non-service-connected burial benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from March 1979 to November 1983. He died in February 2008, and the appellant is his sister. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the appellant's claim for non-service-connected burial benefits. In addition to the paper claims file, the appellant also has paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) files. A review of the Virtual VA file reveals the appellant's July 2009 application for burial benefits and the September 2009 decision which denied the appellant's claim for non-service connected burial benefits. The remaining documents are either duplicative or irrelevant to the current claim. FINDINGS OF FACT 1. The appellant is the Veteran's sister who paid for burial expenses of the Veteran from her personal funds. 2. At the time of the Veteran's death in February 2008, 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. 3. The Veteran died at his home and was not hospitalized by VA or receiving care under VA contract at a non-VA facility at that time of his death. CONCLUSION OF LAW The criteria for payment of non-service-connected burial benefits are not met. 38 U.S.C.A. §§ 2302, 2303 (West 2002); 38 C.F.R. §§ 3.1600-3.1612 (prior to July 7, 2014); 79 Fed. Reg. 109, 32658-62 (June 6, 2014), to be codified at 38 C.F.R. §§ 3.1700-3.1713. 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. In this case, adequate VCAA notice was not provided prior to the initial decision in September 2005. However, the RO provided a complete explanation of the criteria necessary to substantiate the claim as well as the appellant's and VA's respective responsibilities to obtain relevant evidence in the March 2011 statement of the case and the June 2011 supplemental statement 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 defect with regard to the timing or content of the notice to the appellant is harmless error and results in no prejudice to her 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). VA has a duty to assist the appellant in the development of the claim, which includes assisting in the procurement of service treatment records and pertinent treatment records, and providing an examination or opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Currently of record are VA treatment records dated in July 2002, which were previously obtained as a result of the Veteran's claim for compensation pursuant to 38 U.S.C.A. § 1151. The Board notes that the appellant contends that the Veteran was in receipt of Social Security disability benefits and such records have not been obtained. However, such are irrelevant to the instant matter and, therefore, it is not necessary to obtain such records. In this regard, receipt of Social Security disability benefits, or Medicare medical insurance, have no bearing on an individual's entitlement to non-service-connected burial benefits. Therefore, obtaining these records would serve no useful purpose. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that "there must be specific reason to believe [SSA] records may give rise to pertinent information to conclude that they are relevant"). Likewise, there is no need to obtain an opinion in this matter as such issue turns on the evidence of record at the time the Veteran died. 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 2008. The appellant is the Veteran's sister who paid for burial expenses of the Veteran from her personal funds and, as such, contends that she is entitled to non-service-connected burial benefits. 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. 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). Significantly, effective July 7, 2014, VA amended the applicable regulations governing entitlement to monetary burial benefits, which include burial allowances for service-connected and non-service-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the current regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new §§ 3.1700 through 3.1713, which were written and organized for clarity and ease of use. VA also improved delivery of burial benefits by, among other things, automatically paying surviving spouses certain burial benefits when eligibility for those benefits can be determined from evidence of record, paying flat-rate burial and plot or interment allowances that are equal to the maximum benefit authorized by law, and establishing a priority of payment to non-spouse survivors. These changes allowed VA to automate payment of a burial allowance to most surviving spouses and expedite the adjudication of all other burial benefits claims. See 79 Fed. Reg. 109, 32658-62 (June 6, 2014). Except as otherwise provided, the final rulemaking was applicable to claims for burial benefits pending on or after July 7, 2014. Section 3.1702 explains, however, that provisions regarding automatic payments to surviving spouses and priority of payments apply only to claims VA receives on or after July 7, 2014. As the appellant's claim was received in July 2009 and was still pending on July 7, 2014, both the older and revised criteria apply, whichever is more favorable. In this case, the AOJ has not yet considered the appellant's claim in light of the new regulations, however, none of the amended provisions apply to the case at hand. Rather, the substantive requirements for a non-service-connected burial allowance remain the same as in the previous version of the regulations. Therefore, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). A review of the record reveals that the Veteran was not in receipt of pension or compensation at the time of his death and had no service-connected disabilities. Additionally, the Veteran did not have any pending original or reopened claims for compensation or pension at the time of his death. In this regard, the Board notes that the Veteran filed a claim for pension in September 2000, but denied in an October 2000 decision. The Veteran subsequently filed a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for mental distress after being overmedicated in July 2002 at the VA Medical Center in Bay Pines, but such claim was denied in a May 2003 rating decision. The Veteran did not appeal such decisions and, at the time of his death, had not applied to reopen such claims. 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). 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. Rather, the death certificate shows that the Veteran died at his home. In reaching this decision, the Board acknowledges the appellant's contention that non-service-connected burial benefits are warranted as the Veteran received medical care through VA, was in receipt of Social Security disability benefits, and was provided insurance under Medicare; however, such elements are irrelevant to the instant claim. As previously discussed, at the time of the Veteran's death in February 2008, 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, his body was not held by the State, and he was not hospitalized by VA or receiving care under VA contract at a non-VA facility. Consequently, non-service-connected burial benefits are 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Non-service-connected burial benefits is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs