Citation Nr: 1828596	
Decision Date: 05/10/18    Archive Date: 05/18/18

DOCKET NO.  15-03 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania

THE ISSUE

Entitlement to nonservice-connected burial benefits, to include a plot or interment allowance.


ATTORNEY FOR THE BOARD

Michael Sanford, Counsel


INTRODUCTION

The service member served in the National Guard from September 1966 until July 1975.  He died in April 2013.  The appellant is the service member's surviving spouse.


This appeal to the Board of Veterans' Appeals (Board) arose from a January 2014 rating decision in which the RO denied the claim for nonservice-connected burial benefits.  In August 2014, the appellant filed a notice of disagreement (NOD).  In November 2014, a statement of the case (SOC) was issued.  In December 2014, the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals).

In addition to a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems.  All records have been reviewed.


FINDINGS OF FACT

1.  In April 2013, the service member died at a private hospice facility and was buried later that month.  The appellant's application for nonservice-connected burial benefits was received in June 2013.

2.  The service member was not receiving any VA compensation or pension benefits at the time of his death.

3.  There was no original or reopened claim for VA compensation or pension benefits pending at the time of the service member's death.

4.  The service member was not discharged from service due to a disability incurred or aggravated in the line of duty.

5.  The service member's body was not unclaimed, and the appellant paid burial expenses. 

7.  The service member 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.


CONCLUSION OF LAW

The criteria for payment of nonservice-connected burial benefits, to include a plot or interment allowance, are not met.  38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1600-3.1610 (as in effect prior to July 7, 2014); 38 C.F.R. §§ 3.1700-3.1713 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017).

As will be explained below, the claim for nonservice-connected burial benefits lacks legal merit.  As the law, and not the facts, is dispositive of the appellant's claim, the duties to notify and assist imposed by the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2014); see also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).

II.  Analysis

The appellant argues that she is entitled to nonservice-connected burial benefits.

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 t 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 June 2013, i.e., prior to 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 old regulations, in effect at the time the appellant's claim was filed in June 2013. 

It is noted, at the outset, that claims for a burial allowance may be executed only by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses." 38 C.F.R. § 3.1601(a)(1) (now at 38 C.F.R. § 3.1702(b)(3)). 

The service member died in April 2013, due to thyroid cancer.  The appellant explicitly stated that she is not claiming that the Veteran's death is related to service.  See June 2013 Claim for Burial Benefits.  Accordingly, only eligibility for benefits on a nonservice-connected basis will be considered.

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. § 3.1600(b) (now 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. § 3.1600(b) (now 38 C.F.R. §§ 3.1705(b),(e), 3.1708(b),(c)). 

Alternatively, a burial allowance may be paid if a veteran dies 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. §§ 3.1600(c), 3.1605 (now 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. § 3.1601 (a) (now 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. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)).

Initially, the Board notes that the appellant's claim for burial benefits was filed within two years of the service member's burial.  As such, it was filed timely.

However, the service member is not shown by the record to have been granted service connection for any disability at the time of his death in April 2013, and he was not receiving any VA compensation or pension benefits.  Further, the evidence does not reflect that there was an original or reopened claim for either benefit pending at the time of his death, nor does the appellant claim that any such claim was pending.  Additionally, the service member 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 her body held by a State. 

While acknowledging that the service member died while at a private facility, the appellant argues that the service member was told that he was ineligible for VA-furnished health care.  See August 2014 NOD.

The evidence shows that the service member died at an in-patient hospice facility.  The regulations are very specific in this circumstance. The service member did not die while in a VA Medical Center, domiciliary, or nursing home, or at a facility under contract with VA, or while traveling under proper prior authorization and at VA expense to a specified place for the purpose of examination, treatment, or care.  The appellant has not provided any regulatory or statutory support for her contention that nonservice-connected burial benefits are warranted because the service member was told that he was not eligible to receive VA medical care.

In sum, the applicable legal authority states that nonservice-connected burial benefits may be paid if a veteran dies 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.  In this case, the Board finds that because the service member was not properly admitted to a VA facility for hospital, nursing home or domiciliary care, nor was he traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment or care, the appellant is not entitled to nonservice-connected burial benefits.

As regards a plot or interment allowance, the service member was not buried in a national cemetery or other cemetery controlled by the United States.  Nevertheless, any claim for plot or interment allowance would still fail,  as the service member was not eligible for a burial allowance and he did not die while admitted to a VA facility, as previously explained.  Nor was the service member discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty, for a service-connected death.  In other words, a plot or interment allowance would be precluded by other applicable provisions of 38 C.F.R. § 3.1707.  Consequently, the Board finds that the legal requirements for entitlement to a plot or interment allowance have not been met, and any claim for such must be denied.

The legal authority pertaining to nonservice-connected 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, on these facts, there is no legal basis to award nonservice-connected burial benefits, the appellant's claim must be denied as a matter of law.  See Sabonis, supra.



ORDER

The claim for nonservice-connected burial benefits, to include a plot or interment allowance, is denied.





____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs