Citation Nr: 1754924 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-16 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to VA burial benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant, W.T., and T.L. ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1953 to March 1955 and from April 1955 to November 1961. He died on April [REDACTED], 2016. The appellant is the Veteran's surviving sister, and claims as the executor or administrator of the Veteran's estate. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in April 2016. 2. The appellant, claiming as the executor or administrator of the Veteran's estate, filed for VA burial benefits in July 2016. 3. The evidence of record does not demonstrate that the appellant incurred costs for the Veteran's burial expenses. CONCLUSION OF LAW The criteria for entitlement to VA burial benefits have not been met. 38 U.S.C.A. § 2302 (West 2014); 38 C.F.R. §§ 3.1700, 3.1702, 3.1703 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). As this appeal concerns a claim for service connection for the cause of the Veteran's death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation (DIC) claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). Nonetheless, the United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Indeed, that is the case with regard to the appellant's claim for VA burial benefits, although the Board notes that adequate notice was provided, sufficient evidence was developed in this appeal, and no further development is required. Burial Benefits The Veteran died in April 2016, and the appellant is claiming entitlement to VA burial benefits as his executor or administrator; she is the Veteran's sister. On her application, she specifically indicated that she did not incur expenses related to the Veteran's burial or internment. The appellant submitted, in support of her claim for VA burial benefits, a "Statement of Funeral Goods and Services Selected" from Robinson and Son Mortuary, Inc., dated May 2016, reflecting a balance due and payable of $7,780.80. VA provides the following types of burial benefits, which are discussed in 38 C.F.R. §§3.1700 through 3.1712: (1) burial allowance based on service--connected death; (2) burial allowance based on non-service-connected death; (3) burial allowance for a veteran who died while hospitalized by VA; (4) burial plot or interment allowance; and (5) reimbursement for transportation of remains. Here, the Veteran's cause of death has not been found to be the result of a service-connected disability. Thus, the claim must be considered pursuant to the regulation regarding nonservice-connected burial benefits, set forth in 38 C.F.R. § 3.1705. The statutory maximum payment that may be made for non-service-connected burial benefits under this provision is $300. 38 U.S.C.A. § 2302(a) (West 2014). This regulation provides that a burial allowance is payable for a veteran who, on the date of his or her death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. 38 C.F.R. § 3.1705(b). For claims received after July 7, 2014, as is the case here, the priority of payment for a claim for reimbursement or direct payment of burial expenses is as follows: (1) his or her surviving spouse; (2) the survivor of a legal union between the deceased Veteran and the survivor; (3) his or her children, regardless of age; (4) his or her parents or the surviving parent; or (5) the executor or administrator of the estate of the deceased veteran. If no executor or administrator has been appointed, VA may pay burial benefits based on a claim filed by a person acting for such estate who will distribute the burial benefits to the person or persons entitled to such distribution under the laws of the Veteran's last State of residence. In the case of a veteran whose remains are unclaimed, VA will pay the person or entity that provided burial services and transportation subject to the limitations prescribed in 38 C.F.R. §§ 3.1708 and 3.1709. VA will pay burial benefits to a single representative of the categories, and will not divide applicable burial benefits among claimants; it is the responsibility of the recipient to distribute benefits as may be required. See 38 C.F.R. § 3.1702. VA must receive a claim for the non-service-connected burial allowance no later than 2 years after the burial of the Veteran, with the exception of a correction of character of discharge; claims for non-service-connected burial allowance must be filed no later than 2 years after the date that the discharge was corrected. In order to pay burial benefits, VA must receive all of the following: (1) a claim, except as provided in §3.1702(a); (2) proof of the Veteran's death; and (3) a statement certifying that the claimant incurred burial, plot or interment, or transportation costs of the deceased veteran. In order to pay transportation costs, VA must receive a receipt, preferably on letterhead, showing who paid the costs, the name of the deceased Veteran, the specific transportation expenses incurred, and the dates of the services rendered. VA may establish eligibility for benefits in this subpart based upon evidence of service and disability that VA relied upon to grant disability compensation or pension during the Veteran's lifetime, unless VA has some other evidence on the date that it receives notice of the Veteran's death that creates doubt as to the correctness of that evidence. See 38 C.F.R. § 3.1703. In this case, the key question at issue in this case is whether the appellant herself has legal standing to file a claim for VA burial benefits in light of the fact that she did not pay for the Veteran's burial expenses. The Board acknowledges the Veteran's honorable military service and is sympathetic to the loss his family has suffered. The payment of burial benefits, however, is strictly based on specific statutory and regulatory guidelines. In this case, the Board finds no legal basis for the appellant's claim of entitlement to burial benefits under the law. Because the record does not reflect that the appellant paid for the Veteran's burial expenses with her own personal funds, she cannot be the proper claimant for VA burial benefits. See 8 38 C.F.R. § 3.1702(c)(1), (2). The Board recognizes the appellant's assertion that she did not have the money to pay for the Veteran's burial expenses, and was going to borrow money to pay the funeral home. However, she did not provide a copy of a receipt or other document indicating that the funeral home bill has been paid, or otherwise provide proof that she paid for the Veteran's burial expenses. To this point, the Board notes that the undersigned VLJ offered the appellant an additional opportunity to support her claim. Crucially, the appellant did not provide VA with any evidence demonstrating that she paid the Veteran's burial expenses. In short, because the appellant did not pay for the Veteran's burial expenses, she lacks legal standing to pursue a claim for reimbursement for VA burial benefits. Thus, VA is precluded from making payment for the Veteran's burial expenses to the appellant based on her July 2016 claim. ORDER Entitlement to VA burial benefits is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs