Citation Nr: 1748367	
Decision Date: 10/26/17    Archive Date: 11/03/17

DOCKET NO.  17-31 114	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota

THE ISSUE

Entitlement to nonservice-connected burial benefits.


ATTORNEY FOR THE BOARD

K. Foster, Associate Counsel


INTRODUCTION

The record indicates that the Veteran had active military service from March 1962 to September 1962.  He died in August 2016.  The appellant is his surviving spouse.  She appealed to the Board of Veterans' Appeals (Board/BVA) from a December 2016 decision by the Department of Veterans Affairs (VA) Pension Management Center.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran died in August 2016.

2.  The record does not show that service connection was in effect for any disability at the time of his death.

3.  The record does not show that at the time of his death, he was receiving a VA pension or VA disability compensation benefits.

4.  The record does not show that there were claims for disability compensation or pension pending at the time of his death that would have resulted in the award of disability compensation or a pension.

5.  The record does not show that the Veteran was discharged from service due to a disability incurred or aggravated in the line of duty, and he is not buried in a state or national cemetery.

6.  The record does not show that the Veteran died while in a VA medical center, domiciliary, or a 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.





CONCLUSION OF LAW

The criteria for payment of nonservice-connected burial benefits are not met.  38 U.S.C.A. §§ 2302, 2303, 2305 (West 2014); 38 C.F.R. §§ 3.1700-1713 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Ace of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  Here, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law).  Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

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.A. § 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.

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.A. § 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.

The Veteran passed away in August 2016.  The record reflects that the appellant filed a timely claim for application for burial benefits in October 2016.  On the form she indicated that she was seeking reimbursement of $7,924.95 for transportation expenses.  However, an itemized receipt from the funeral home filed with the application indicates that this total may also include other expenses, such as basic services of the funeral director and staff, an embalming fee, obituaries, death certificates, etc.  

However, the undisputed facts reveal the criteria for entitlement to VA burial benefits are not met.  The Veteran's death certificate shows that he passed away at a nursing home.  The record does not indicate, nor does the appellant contend, that the nursing home was a VA facility or under VA contract.  The causes of death were listed on his death certificate as gastric cancer with mets to the liver and bile duct.  The record does not indicate that the Veteran was service-connected for such a disability at the time of his death and there has been no allegation that his death was related to service.  Furthermore, the record does not show that the Veteran was, at the time of his death, in receipt of VA service-connected compensation for any disability or nonservice-connected pension benefits.  Moreover, the record does not indicate, nor does the appellant assert, that the Veteran died while hospitalized by VA as defined in 38 C.F.R. § 3.1706 (b)(1)-(6).

The appellant does not dispute any of these facts.  Her application indicates that she is seeking benefits for non-service-connected death.  She indicates the following on her application: as the Veteran's spouse she did not previously receive a VA burial allowance; she did not incur expenses for the Veteran's burial or internment; she is not seeking benefits for the Veteran's non-service-connected death occurring at a VA medical center, nursing home under VA contract, or other VA facility; the Veteran was not buried in a state Veteran's cemetery, national cemetery, or one owned by the federal government; the federal/ state government or the Veteran's employer did not contribute to the burial.  Rather, she contends that the expenses were a great financial hardship and burial benefits should be awarded due to the Veteran's honorable service.  Regrettably, however, the law is dispositive in this case and there simply is no legal basis to award VA burial benefits.  The Board sympathizes with the appellant for her loss and appreciates the financial hardship posed by burial expenses.  The Board also acknowledges and values the Veteran's honorable service.  Under the circumstances of this case, however, the appellant's claim for burial benefits must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The preponderance of the evidence is against the claim and there is no doubt to be resolved.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991).


ORDER

The appeal seeking entitlement to nonservice-connected burial benefits, is denied.




____________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs



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