Citation Nr: 1513684	
Decision Date: 03/31/15    Archive Date: 04/03/15

DOCKET NO.  12-21 420	)	DATE
	)
	)

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


THE ISSUE

Entitlement to non-service-connected burial benefits.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel


INTRODUCTION

The Veteran had active service from October 1956 to February 1960.  He died in April 2010, and the appellant is his surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the appellant's claim for non-service-connected burial benefits. 

In her July 2012 substantive appeal, the appellant requested a Board video-conference hearing.  That hearing was scheduled for February 2015, but the appellant did not appear for it.  A January 9, 2015 notice letter regarding that scheduled hearing was not returned as undeliverable, and she has not filed a motion for a new hearing.  Therefore, her request for a Board hearing is considered withdrawn.  38 C.F.R. §§ 20.702(d), 20.704(d) (2014).

In addition to the paper claims file in this case, there are also paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) files.  A review of those files includes the aforementioned January 9, 2015 letter (VBMS and Virtual VA) and the January 23, 2015 appeal certification letter (Virtual VA).   The remaining documents in those files are either duplicative or irrelevant to the current claim. 


FINDINGS OF FACT

1.  The appellant is the Veteran's surviving spouse who paid for burial expenses of the Veteran from her personal funds. 

2.  At the time of the Veteran's death in April 2010, 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 the 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 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).  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 June 2010.  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 July 2012 statement of the case (SOC).  While this document may not be used to provide VCAA notice in the first instance, based on its issuance, a reasonable person could be expected to understand what was needed to substantiate the claim.  The SOC 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 written statements, the appellant provided her contentions, 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 the Veteran's death certificate, bills and records of payment for his burial expenses, and a VA discharge summary relating to the Veteran's hospitalization from late March to early April 2010.  There is no indication that any other evidence pertinent to this claim exists.  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 April 2010.  The appellant is the Veteran's surviving spouse who paid for burial expenses of the Veteran from her personal funds (records to this effect are on file) and, as such, contends that in the interest of fairness, 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 June 2010 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.  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 appellant maintains that the Veteran was hospitalized prior to his death at a VA facility and, in support of the claim, submitted a VA discharge report relating to the Veteran's hospitalization from late March to early April 2010.  That evidence reflects that the Veteran was discharged on April 2, 2010 with a discharge diagnosis of metastatic lung cancer and an order for home hospice.  The death certificate reflects that the Veteran died in his home, approximately 2 weeks later.   

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 a matter of fairness.  The Board is sympathetic to her arguments, but, unfortunately, is unable to provide a legal remedy, as the law is clearly stated.  Federal laws authorizing monetary benefits are enacted by Congress, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit; indeed, the benefit cannot be awarded, regardless of the circumstances.  See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994).  As such, the claim must be denied as a matter of law.  Although the Board is sympathetic to the appellant's situation, the law compels the conclusion reached in this case.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to non-service-connected burial benefits is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs