BVA9506385 DOCKET NO. 93-10 441 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to burial benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The veteran, [redacted], served in the Army Air Corps from February 1944 to October 1945. He died on January [redacted] 1990. The appellant is the veteran's widow. 38 C.F.R. § 3.50 (1993). This appeal arose from a June 1992 letter from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana (hereinafter "VARO") to the appellant which informed the appellant that her claim for burial benefits had been disallowed because it had not been timely filed. The appellant filed a Notice of Disagreement on July 10, 1992, and VARO issued a Statement of the Case on July 30, 1992. The appellant duly filed an Appeal to the Board of Veterans' Appeals (VA Form 1-9) in August 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that a claim for burial benefits was submitted in a timely fashion and that the claim for burial benefits should therefore be allowed. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's claim for entitlement to burial benefits should be granted. FINDINGS OF FACT 1. The veteran served on active duty during World War II. The appellant is the widow of the veteran. 2. The veteran died in January 1990. 3. In August 1990, a claim for burial benefits which was signed by the appellant was submitted to VARO. VARO rejected the claim based on lack of a proper signature and the fact that the veteran's death certificate was not certified by the custodian of public records. 4. The claim for burial benefits was again submitted in May 1992. It was rejected by VARO as being untimely filed. CONCLUSION OF LAW The appellant is entitled to VA burial benefits. 38 U.S.C.A. § 2302 (West 1991); 38 C.F.R. § 3.1600 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking VA burial benefits. Her claim was denied by VARO in June 1992, based on VARO's finding that the claim for burial benefits was not filed in a timely manner. Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that her claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, it is believed that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits may be made. The law and VA regulations provide that under certain circumstances, funeral and burial expenses will be paid by VA with respect to deceased veterans. 38 U.S.C.A. § 2302 (West 1991); 38 C.F.R. § 3.1600 (1993). The law and regulations further provide, in substance, that applications for reimbursement of burial expenses must be filed within two years after the burial of the veteran. If a claimant's application is incomplete at the time it is originally submitted, VA shall notify the claimant, who shall then have one year after the date of such notification to complete the application, or the claim shall not be paid. 38 U.S.C.A. § 2304 (West 1991); 38 C.F.R. § 3.1601 (1993). As noted above, the veteran died on January [redacted] 1990. VARO records indicate that an Application for Burial Benefits under 38 U.S.C., Chapter 23, (VA Form 21-530) was received at VARO on August 20, 1990. The application included a certification signed by the appellant. Attached to the form was an itemized list of expenses related to the veteran's funeral and burial and a photocopy of the veteran's certificate of military service. In September 1990, VARO wrote to the funeral director, requesting that the application be signed. In addition, VARO requested a copy of the death certificate which had been certified by the custodian of public records. VARO records show that nothing was received until May 1992, over one year after its September 1990 letter. The material received in May 1992 consisted of a fax cover sheet, signed by the bookkeeper of the funeral home, which included the message "third time submitted", and an Application for Burial Benefits with attachments, including a death certificate which had been certified by both the State Registrar and the Local Registrar. VARO denied the appellant's claim for burial benefits, based on untimeliness of filing. The appellant filed this appeal, contending that the application was filed in a timely fashion. In her August 1992 Appeal to the Board, the appellant stated that a claim for burial benefits had been initially filed in February 1990, shortly after funeral services had been conducted. No response had been received from VARO. The claim was therefore resubmitted in August 1990. After again getting no response from VARO, the claim was once again submitted to VARO in May 1992. At that time, the claim was rejected as untimely. After having carefully considered all of the evidence of record, as well as the pertinent law and regulations, the Board has concluded that the preponderance of the evidence is in the appellant's favor and that her claim should be granted. It is clear that, well within the two year period allowed by law, VARO was in receipt of an Application for Burial Benefits which was signed by the appellant and which was on the proper form. Moreover, the record contains a copy of the veteran's death certificate, which was certified by both the Local Registrar and the State Registrar, was received by VARO on April 1990. That copy is identical to the copy which was received at VARO in May 1992. In the Board's opinion, VARO's September 1990 letter was unnecessary and the appellant's August 1990 application for burial benefits was complete and timely filed. Accordingly, the benefit sought on appeal is granted. ORDER Entitlement to burial benefits is granted. C.P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.