Turner v. Gober

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 98-1863
IRMGARD M. TURNER, APPELLANT ,
V.
HERSHEL W. GOBER,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, IVERS, and GREENE, Judges.
ORDER
The appellant, Irmgard M. Turner, appeals from the August 31, 1998, decision of the Board
of Veterans' Appeals (Board or BVA) which denied her claim for reimbursement of expenses for
transporting the body of her deceased husband, the veteran, for burial. As this matter involves an
issue of statutory interpretation not previously addressed by the Court, this 3-judge panel is issuing
a precedential order. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990) (listing criteria for
single-judge disposition); 38 U.S.C. § 7254(b).
On April 19, 1994, the veteran died at Calvary Hospital in New York City. Record (R.) at
13, 39. On April 23, 1994, he was buried in Calvary Cemetery in Louisville, Kentucky. R. at 13,
16. Calvary Cemetery is not a national cemetery. R. at 42.
The appellant applied for burial benefits in December 1994, and VA authorized payment of
a $300 burial allowance plus a $150 interment allowance. See 38 U.S.C. §§ 2302, 2303(b)(2); R. at
16-17; Supplemental (Suppl.) R. at 1. The veteran's death was considered non-service-connected.
Id.A July 1996 rating decision granted service connection for the cause of the veteran's death.
R. at 22-23. In September 1996, the appellant filed an informal claim requesting reimbursement for
$1,500 spent toward burial costs. R. at 25; see 38 U.S.C. § 2307. She also sought reimbursement
for $2,075 spent for the transfer of the veteran's remains from the New York hospital in which he
had died, to Louisville, Kentucky, where he was buried. R. at 25; see 38 U.S.C. § 2308.
VA granted burial allowance in the amount of $1,050, pursuant to 38 U.S.C. § 2307 ($1,500
minus $450 previously awarded). Suppl. R. at 1-2. In October 1997, a VA regional office (RO)
denied the claim for reimbursement of the cost of transporting the veteran's remains. The appellant
appealed the RO denial to the Board, noting that she had attempted to have the veteran buried at a
national cemetery, but was informed that there was no space available at either Zachary Taylor or
New Albany National Cemeteries in New York. R. at 31, 42.
The law specifically provides for payment of the cost of transporting the remains of a
deceased veteran to a national cemetery. 38 U.S.C. § 2308. In pertinent part, the statute reads as
follows:
Where a veteran dies as the result of a service-connected disability, . . . the Secretary
may pay, in addition to any amount paid pursuant to section 2302 or 2307 of this
title, the cost of transportation of the deceased veteran for burial in a national
cemetery.
In this case, it is undisputed that the veteran was not buried in a national cemetery. In
denying reimbursement to the appellant of the cost of transportation of the veteran's remains for
burial, the Board concluded, pursuant to the explicit terms of the statute, that payment of the
transportation cost could be authorized only when a veteran had been buried in a national cemetery.
R. at 6-7. The Court finds that this application of the law to the facts of this case was in accordance
with law. See 38 U.S.C. § 7261(a)(3)(A) (Court shall set aside decisions that it finds to be not in
accordance with law).
Furthermore, the Court finds that the provisions of 38 U.S.C. § 2302(a) permit payment of
a maximum of $300 for "burial and funeral expenses of the deceased veteran and the expense of
preparing the body and transporting it to the place of burial." Concerning the appellant's suggestion
that "the expense of preparing the body and transporting it to the place of burial" (38 U.S.C.
§ 2302(a)) is not included in the maximum allowance of $300, the Court finds that an interpretation
of the statute to that end would defy the plain language contained therein, and would circumvent the
intent of Congress in enacting the statute. See Gardner v. Brown, 5 F.3d 1456, 1458 (Fed. Cir.
1993), aff'd, 513 U.S. 115 (1994) (if language of statute is clear, no further interpretation is needed).
The appellant has not made "an extraordinarily strong showing of clear legislative intent in
order to convince us that Congress meant other than what it ultimately said," Id. at 1460, and the
Court concludes that the Board properly interpreted and applied 38 U.S.C. §§ 2302, 2303, 2307, and
2308.
Upon consideration of the foregoing, it is
ORDERED that the August 31, 1998, BVA decision is AFFIRMED.
DATED: December 19, 2000 PER CURIAM.
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