Citation Nr: 18154637 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-23 953 DATE: November 30, 2018 ORDER The claim of entitlement to dependency and indemnity compensation (DIC) pursuant to the provisions of 38 U.S.C. § 1151 for the cause of the Veteran’s death is denied. The claim of entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran’s death certificate lists aspiration pneumonia as the Veteran’s cause of death. 2. In November 2014, the Department of Veterans Affairs (VA) approved a contract with Sarah Care of Campbell, a private facility, to provide the Veteran with adult daycare services until April 30, 2015. 3. The appellant alleges that the Veteran contracted his fatal pneumonia from an employee of Sarah Care of Campbell. 4. In January 2015, the Veteran died at a private hospital and was buried later that month. The appellant’s application for burial benefits was received in March 2015. 5. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 6. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran’s death, which was granted. 7. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 8. The Veteran’s body was not unclaimed, and the appellant paid expenses related to the Veteran’s burial. 9. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for the purpose of examination, treatment, or care. CONCLUSIONS OF LAW 1. The criteria for DIC under 38 U.S.C. § 1151 are not met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.3102, 3.159, 3.361. 2. The criteria for payment of burial benefits are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1946 to October 1949. He died in January 2015. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from two decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In a March 2015 decision, the RO denied the claim for nonservice-connected burial benefits. The appellant filed a notice of disagreement (NOD) in April 2015. The RO issued a statement of the case (SOC) in June 2015, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. In a May 2015 rating decision, the RO denied the appellant’s claim for service connection for the cause of the Veteran’s death. The appellant filed an NOD in June 2015. The RO issued an SOC in March 2016 (addressing the appellant’s theory of entitlement for DIC under 38 U.S.C. § 1151), and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in May 2016. In her May 2016 VA Form 9, the appeal requested a Board hearing, which was scheduled for a date in October 2018. However, in October 2018, the appellant withdrew her hearing request. I. DIC under 38 U.S.C. § 1151 The appellant contends that the Veteran’s contracted his fatal aspiration pneumonia at a VA-contracted adult day care facility and, as such, she is entitled to DIC under 38 U.S.C. § 1151. At the outset, it is noted that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran’s death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is “necessary to substantiate the claim,” and VA is excused from providing such assistance only when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Wood, 520 F.3d at 1348. In this instance, as will be discussed in greater detail below, the evidence reflects, and the appellant solely argues, that the Veteran contracted pneumonia from a VA-contracted facility. As will be discussed below, the governing regulations prohibit the award of compensation under 38 U.S.C. § 1151 where the purported negligence occurred at a VA-contracted facility, as opposed to a VA facility. Accordingly, a medical opinion would not aid in substantiating the appellant’s claim. As such, VA had no duty to assist the appellant by seeking a medical opinion as to the claim for DIC under 38 U.S.C. § 1151 for the cause of the Veteran’s death. Where a veteran suffers an injury or aggravation of an injury as a result of VA medical treatment, and the injury or aggravation results in death, then compensation, including DIC, shall be awarded in the same manner as if such death was service-connected. 38 U.S.C. § 1151. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of a veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A), and (2) the proximate cause of the disability or death was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. Id. The implementing regulation applicable to section 1151 claims received on or after October 1, 1997, is 38 C.F.R. § 3.361, which provides that, in order to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death as explained in 38 C.F.R. § 3.361(c) and that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). The record reflects that VA approved contracted care for the Veteran in November 2014. Adult day care services for the Veteran with Sarah Care of Campbell, a private entity, was approved from October 31, 2014, until April 30, 2015. The record also reflects that the Veteran was admitted to Kaiser Permanente hospital in San Jose, California with an admitting diagnosis of sepsis due to pneumonia. The Veteran’s wife reported that his caregiver from Sarah Care of Campbell was sick, and that that is how the Veteran contracted pneumonia. The Veteran ultimately died due to aspiration pneumonia in January 2015. A May 2015 letter from a compliance consultant at Kaiser Permanente notes that Dr. V.B., M.D., agreed that the Veteran contracted pneumonia from a caregiver at Sarah Care of Campbell. 38 U.S.C. § 1151 states that compensation shall be paid for disability or death caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A). 38 U.S.C. § 1151. 38 U.S.C. § 1701(3)(A) defines “Department facility” as a facility over which the Secretary has direct jurisdiction, or a government facility for which the Secretary contracts, and public or private facilities at which the Secretary provides recreational activities for patients receiving care under section 1710. 38 U.S.C. § 1701(3)(A). 38 C.F.R. § 3.361(e) then defines VA department employees and facilities as follows: (1) A Department employee is an individual-- (i) Who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) Who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) Whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. (2) A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(f) then provides that the following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a): (1) Hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703; (2) Nursing home care furnished under 38 U.S.C. § 1720; and (3) Hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. Notably, 38 U.S.C. § 1703 provides that VA my contract with other health care facilities to provide care to veterans, when VA is not capable of furnishing economical medical services. Here, it is uncontroverted that the Veteran’s adult day care was provided by Sarah Care of Campbell, with whom VA contracted to provide those services for the Veteran. Thus, even assuming arguendo that the Veteran contracted his fatal aspiration pneumonia while under Sarah Care of Campbell’s care, 38 C.F.R. § 3.361(f)(1) prohibits the award of DIC under 38 U.S.C. § 1151. As such, death incurred at a VA-contracted facility cannot be compensated under the provisions of 38 U.S.C. § 1151. The legal authority governing the award of DIC under 38 U.S.C. § 1151 is clear and specific, and the Board is bound by such authority. In this case, the Board finds that there is no legal basis for the award of DIC under 38 U.S.C. § 1151 for the cause of the Veteran’s death. Thus, the claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet .App. 426, 430 (1994). II. Burial Benefits The appellant asserts her entitlement to nonservice-connected burial benefits to recoup expenses related to the Veteran’s funeral and burial. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and non-service-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for burial benefits pending on or after July 7, 2014. (The appellant’s claim for burial benefits has been pending since March 2015, i.e., following the effective date of the rule change on July 7, 2014). Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and old provisions, with due consideration to the effective date of the changes, and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the new regulations, in effect at the time the appellant’s claim was filed in March 2015. It is noted, at the outset, that claims for a burial allowance may be advanced only by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses.” at 38 C.F.R. § 3.1702(b)(3). 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, but only under certain circumstances. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705. Specifically, if the cause of a veteran’s death is not service connected, entitlement is based upon the following conditions: at the time of death, the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or, the veteran had an original claim for either benefit pending at the time of her death for which there was evidence available on the date of death to support the award for compensation or pension or, in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, 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 line of duty, and there is no next of kin and the veteran’s estate funds are insufficient to cover expenses. See 38 U.S.C. § 2302(a); 38 C.F.R. §§ 3.1705(b), (e); 3.1708(b), (c). Alternatively, a burial allowance may be paid if a veteran died from nonservice-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. See 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1706(b), (d). An application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the veteran’s body. 38 U.S.C. § 2304; 38 C.F.R. § 3.1703(a). This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1600(f). The two-year time limit does not apply to claims for service-connected burial allowance, or for the cost of transporting a veteran’s body to the place of burial when the veteran dies while properly hospitalized by VA, or for burial in a national cemetery. 38 C.F.R. § 3.1703(a). Here, the Board notes that the appellant’s claim for burial benefits was filed within two years of the Veteran’s burial. Nonetheless, the criteria for the award of nonservice-connected burial benefits are not met. At the time of his death in January 2015, the Veteran is not shown by the record to have been receiving any VA compensation or pension benefits. While service connection had been established for bilateral hearing loss, that disability was rated as zero percent disabling (noncompensable). Further, the Veteran did not have any claims for VA benefits pending at the time of his death., and was not entitled to VA compensation at the time of his death. Also, the Veteran is not shown to have been discharged or released from active service for a disability incurred or aggravated in the line of duty nor was his body held by a State. And, it is uncontroverted that the Veteran died at a private hospital—Kaiser Permanente—and there is no evidence or argument that Kaiser Permanente (as opposed to Sarah Care of Campbell) contracted with VA to provide care. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and burial, and acknowledges that the Veteran had honorable service. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. As, in this case, there is no legal basis to award burial benefits, the appellant’s claim must be denied as a matter of law. See Sabonis, 6 Vet. App. at 426. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel