Citation Nr: 1753349 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-06 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to non-service connected burial benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel INTRODUCTION The Veteran served with the Commonwealth Army of the Philippines in service of the U.S. Armed Forces in the Far East (USAFFE) from December 1941 to June 1946, to include service as a recognized guerilla during World War II. He died in October 1991. The appellant is the Veteran's surviving daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision from the Department of Veterans (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In August 2016, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran died October [REDACTED], 1991 and was interned October [REDACTED], 1991; he was not service-connected for a disability at death. 2. In November 2011 the RO received an application for burial benefits from the appellant. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302, 2304 (2012); 38 C.F.R. §§ 3.1703, 3.1705 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The notice and duty to assist requirements for VA are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award. 38 U.S.C. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (2012). Here, the nature of the claim necessarily involves the date documents were received by VA. There is no dispute as to the date the appellant submitted the application for burial benefits at issue. The appellant has provided argument to support her appeal, and there is no indication that there is additional evidence to obtain. Thus, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. See Manning v. Principi, 16 Vet. App. 534 (2002); see also Smith v. Gober, 14 Vet. App. 227 (200); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a Veteran and the expense of transporting the body to the place of burial. 38 U.S.C. § 2302; 38 C.F.R. § 3.1700. If a Veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid. 38 C.F.R. § 3.1700(a)(1), 3.1704 (2017). If 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, or would have been but for the receipt of retired pay; or, (2) the Veteran had an original or reopened claim for either benefit pending at the time of the Veteran's 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. 38 U.S.C. § 2302(a); 38 C.F.R. §§ 3.1700(a)(2), 3.1705. Alternatively, burial benefits may be paid if a person dies from nonservice-connected causes while hospitalized by VA (in a VA or non-VA facility). 38 C.F.R. §§ 3.1700(a)(3), 3.1706. An application for nonservice-connected burial benefits must be filed within two years after the burial of the veteran's body. 38 U.S.C.A. § 2304; 38 C.F.R. § 3.1703(a). The record reflects that the Veteran died October [REDACTED], 1991. He was interned on October [REDACTED], 1991 and the Veteran's daughter paid for the burial expenses. At the time of death the Veteran was not service-connected for a disability. The Board notes that in April 1992 the RO denied burial benefits to the Veteran's spouse, finding that there was no evidence that the Veteran's death was due to his active military service. The Veteran's spouse was provided notice of this decision but did not appeal. A separate application for burial benefits from the Veteran's daughter was not received until November 2011. As the current claim for nonservice-connected burial benefits was filed in November 2011, more than two years after the Veteran's death, and the evidence reflects that the Veteran did not die as a result of a service-connected disability, the claim is not timely. The Board acknowledges the Veteran's honorable military service and is sympathetic to the loss his family has suffered. The Board has considered the appellant's assertion that she had no prior knowledge of possible entitlement to the claimed benefit or two-year time limit. However, the payment of burial benefits is strictly based on specific statutory and regulatory guidelines, which have not been met in this case. Accordingly, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). (CONTINUED ON NEXT PAGE) ORDER Entitlement to nonservice-connected burial benefits is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs