Citation Nr: 1454343 Decision Date: 12/10/14 Archive Date: 12/16/14 DOCKET NO. 12-13 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to nonservice-connected burial benefits. ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from March 1944 to November 1946. He died in April 2009. The appellant is the Veteran's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT The Veteran underwent a medical emergency in April 2009; his home health aide attempted to have him taken to the VA hospital, but the paramedics determined that this was not possible, and he was not able to be transferred to a VA hospital prior to his death. CONCLUSION OF LAW The eligibility requirements for nonservice-connected burial benefits are met. 38 U.S.C.A. §§ 1703, 2303 (West 2014); 38 C.F.R. §§ 3.1706(b)(2), 17.121 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The RO denied the appellant's claim for nonservice-connected burial benefits on the basis that the Veteran (a) was not in receipt of nor entitled to disability compensation or pension on the date of his death; (b) he did not have a claim pending on the date of death which would have resulted in entitlement to disability compensation or pension; (c) he was not hospitalized by VA or traveling under proper authority and at VA expense for the purpose of examination, treatment or care at the time of his death. The appellant disputes the third finding. She does not disagree that the Veteran was not hospitalized at VA at the time of his death. However, as she set forth in her May 2012 substantive appeal, she maintains that he had a stroke in early April 2009. His home health aide called the paramedics and asked that they take him to the VA hospital, but they refused and took him to a non-VA hospital. While hospitalized there, he had another stroke. At that time, he was transferred to a hospice, where he died several days later. These facts are not materially in dispute and will be taken as true. Accordingly, the only material issue in dispute in this case concerns whether the nonservice-connected burial benefit is payable under 38 C.F.R. § 3.1706(b)(2), which establishes burial allowance for a veteran who died while hospitalized at a non-VA facility under certain circumstances. (There is not material dispute that the appellant would otherwise meet the eligibility requirements for the nonservice-connected burial benefit.) A. Applicable Law A burial allowance is payable under for a veteran whose death was not service-connected and who died while hospitalized by VA. For purposes of this allowance, a veteran was hospitalized by VA if the veteran: (1) Was properly admitted to a VA facility (as described in 38 U.S.C. 1701(3)) for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C. 1710 or 1711(a); (2) Was transferred or admitted to a non-VA facility (as described in 38 U.S.C. 1701(4)) for hospital care under the authority of 38 U.S.C. 1703; (3) Was transferred or admitted to a nursing home for nursing home care at the expense of the U.S. under the authority of 38 U.S.C. 1720; (4) Was transferred or admitted to a State nursing home for nursing home care for which payment is authorized under the authority of 38 U.S.C. 1741; (5) Was traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care; or (6) Was hospitalized by VA pursuant to any of paragraphs (b)(1) through (4) of this section but was not at the facility at the time of death and was: (i) On authorized absence that did not exceed 96 hours at the time of death; (ii) On unauthorized absence for a period not in excess of 24 hours at the time of death; or (iii) Absent from the facility for a period not in excess of 24 hours of combined authorized and unauthorized absence at the time of death. 38 C.F.R. § 3.1706(b). As referenced in § 3.1706(b)(2), the provisions of 38 U.S.C.A. § 1703 direct, in pertinent part that when VA 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 section 1710 of this title, may contract with non-VA facilities in order to furnish hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a VA facility or nursing home care under section 1720 of this title until such time following the furnishing of care in the non-VA facility as the veteran can be safely transferred to a VA facility. 38 U.S.C.A. § 1703(a)(3); see also 38 U.S.C.A. §§ 17.53, 17.121 (2014). B. Discussion Here, the nonservice-connected burial allowance is payable under § 3.1706(b)(2). Again, based on the evidence presented, the facts are not materially in dispute: the Veteran underwent a medical emergency in April 2009; his home health aide attempted to have him taken to the VA hospital, but the paramedics determined that this was not possible; and the Veteran was not able to be transferred from the private hospital to a VA hospital prior to his death. Resolving all reasonable doubt in the appellant's favor, the Board must find that these facts establish eligibility for nonservice-connected burial benefits. See 38 C.F.R. § 3.1706(b)(2); see also 38 U.S.C.A. § 1703; 38 C.F.R. § 17.121 (2014). Therefore, the claim must be granted. ORDER Nonservice-connected burial benefits are granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs