Citation Nr: 1737511 Decision Date: 09/07/17 Archive Date: 09/19/17 DOCKET NO. 13-31 960 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to payment of Department of Veterans Affairs (VA) burial benefits in excess of $300. WITNESS AT HEARING ON APPEAL The Veteran's Daughter ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active, honorable service in the United States Army from February 1943 to December 1945, in Europe during World War II. Unfortunately, he died in March 2012. The appellant is his surviving daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 administrative decision by a VA Pension Management Center (PMC) in Philadelphia, Pennsylvania. That administrative decision granted nonservice-connected burial benefits in the amount of $300 (for funeral costs only). The claimant appealed for the payment of additional burial benefits in a December 2012 notice of disagreement. The claims file was subsequently transferred to the St. Petersburg, Florida VA Regional Office (RO), which currently has jurisdiction of the case. In April 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In her December 2012 notice of disagreement, the appellant has raised the issue of entitlement to accrued benefits to reimburse her for bearing the expense of the Veteran's last sickness under 38 U.S.C § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). The Agency of Original Jurisdiction (AOJ) has not yet adjudicated these claims and, so, the Board has no jurisdiction over them. Thus, these matters must be referred to the AOJ for appropriate consideration and action. 38 C.F.R. § 19.9(b). FINDINGS OF FACT 1. The Veteran died in March 2012, and was buried in Eternal Light Memorial Gardens. Eternal Light Memorial Gardens is not a national cemetery or other cemetery under jurisdiction of the United States. 2. The Veteran's death certificate lists the immediate cause of death as arteriosclerotic heart disease due to (or as a consequence of) sepsis and ventricular tachycardia. He was not service-connected for those disabilities. 3. At the time of the Veteran's death, he was in receipt of nonservice-connected special monthly pension based on the need for aid and attendance. 4. In November 2012, the appellant was awarded funeral expenses of $300, which is the maximum amount payable for a veteran who died as the result of a nonservice-connected disability. CONCLUSION OF LAW Entitlement to a burial allowance in excess of $300 is legally precluded. 38 U.S.C. §§ 101(2), 2302(a)(1), 2303(b)(2), 2402 (West 2014); 38 C.F.R. §§ 3.1703, 3.1705(b)(1), 3.1707(c)(1) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION As discussed below, the resolution of the appellant's claim on appeal turns on the law as applied to the undisputed facts in this case. As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the appellant with the claim. Consequently, no further notice or development under the Veterans Claims Assistance Act of 2000 (VCAA) is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). Burial allowances are warranted at differing rates when certain conditions are met. If a veteran's death is not the result of a service-connected disability, funeral expenses in an amount not to exceed $300 may be granted if, at the time of death, the veteran was in receipt of pension or compensation. See 38 U.S.C. § 2302(a)(1); 38 C.F.R. § 3.1705(b)(1). The Board notes that, during the pendency of the appeal, VA issued new regulations governing entitlement to burial benefits, including nonservice-connected burial allowances and plot allowances. Specifically, VA removed the prior regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new sections 3.1700 through 3.1713. See 79 Fed. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The new regulations, written and organized for clarity and ease of use, are intended to improve delivery of burial benefits, and are applicable to claims for burial benefits pending on or after July 7, 2014. Although the RO did not consider the appellant's claim under the new regulations or provide her notice thereof, no prejudice has resulted as under either version of the regulations, VA is limited to paying the maximum burial and plot allowances specified in 38 U.S.C. §§ 2302 and 2303. The record shows that the Veteran died in March 2012 due to a nonservice-connected disability. As this Veteran was in receipt of special monthly pension based on the need for aid and attendance at the time of his death, the Philadelphia PMC awarded $300 in burial benefits to the appellant in the November 2012 administrative decision on appeal. However, the appellant indicated in her June 2012 application that she was not claiming that his cause of death was due to service. Therefore, an amount in excess of $300 for the Veteran's funeral expenses is not warranted. 38 U.S.C. § 2302(a)(1); 38 C.F.R. § 3.1705(b)(1) A plot allowance is also warranted when certain conditions are met. In the case of a veteran who is eligible for burial in a national cemetery under 38 U.S.C. § 2402 and who is not buried in a national cemetery or other cemetery under the jurisdiction of the United States, a plot allowance in an amount not to exceed $700 may be granted if such veteran is eligible for a burial allowance under 38 U.S.C. § 2302. See 38 U.S.C. § 2303(b)(2). The record shows that the Veteran served in the United States Army on active duty from February 1943 to December 1945 and was discharged under honorable conditions. See 38 U.S.C. § 101(2) (defining veteran as a person "who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable"). Thus, he was eligible for burial in a national cemetery. See 38 U.S.C. § 2402. Yet, the Veteran's death certificate shows that he was buried at Eternal Light Memorial Gardens. On the June 2012 VA Form 21-530 (Application for Burial Benefits), the appellant noted that the cemetery where the Veteran is buried is not a national cemetery or cemetery owned by the federal government. These facts are not in dispute. In the November 2012 administrative decision, the Philadelphia PMC did not consider any additional plot allowance, as the appellant had not filed any evidence pertaining to the cost of the plot and/or internment in Eternal Light Memorial Gardens. The Philadelphia PMC explained that such evidence could be filed on VA Form 21-530 at any point within two years of the Veteran's final burial to be reimbursed under 38 C.F.R. § 3.1601. As discussed above, this same two year limit is currently codified at 38 C.F.R. § 3.1703. The RO reiterated the need for evidence that the appellant incurred the expense of internment at Eternal Light Memorial Gardens in the September 2013 statement of the case. That two year time period elapsed in March 2014, two years following the Veteran's final burial. To date, the appellant has not filed such evidence. Therefore, the Board must find that an additional plot allowance is not warranted in this case. Moreover, this fact is also not in dispute. The evidence of record does not suggest that the appellant actually incurred the cost of internment at Eternal Light Memorial Gardens. She testified at the April 2017 hearing that her father had prepaid all but $450 of his total funeral expenses. This is consistent with the Beth Israel Memorial Chapel Funeral Service Agreement showing a pre-need arrangement in the amount of $2,078, leaving a balance of $450. There can be no doubt from review of the record that the veteran rendered honorable and faithful service for which the Board is grateful. The Board is also sympathetic to the appellant's arguments. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992). The appellant's claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The appellant has argued in her December 2012 notice of disagreement, her October 2013 substantive appeal, and in her April 2017 testimony that she also bore the expense of the Veteran's last sickness, by contributing to his assisted living facility costs and paying home health aides. These costs may be eligible for reimbursement as an accrued benefit. See 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). As the appellant has not yet claimed this reimbursement, and the AOJ has not yet adjudicated this claim, the Board does not have jurisdiction over it. Accrued benefits claims must be filed within a year of the Veteran's death, and the Board is cognizant that the appellant initially raised this argument in her December 2012 notice of disagreement, within one year of the Veteran's March 2012 death. Therefore, the Board has referred this issue to the AOJ above to ensure that the VA exhausts every possibility of assisting the appellant in this case. The Board further acknowledges the appellant's questions regarding any benefits that may be available from the Veteran's pension benefits during the month of his death. The appellant referenced these funds as a possible source of benefit available to her as the Veteran's survivor in her December 2012 notice of disagreement and October 2013 substantive appeal. While 38 U.S.C. § 5310 provides a surviving spouse of a veteran a one-time benefit for the month of the veteran's death, i.e. a month of death check, the statutory terms chosen by Congress in enacting section 5310 clearly indicate that the 38 U.S.C. § 5310 benefit was intended solely for the surviving spouse of a veteran. See 38 C.F.R. § 3.20(b); Pelea v. Nicholson, 497 F.3d 1290, 1292 (Fed. Cir. 2007). In this case, as the appellant is not the Veteran's surviving spouse, the Veteran's month of death check is not available to her. ORDER Entitlement to burial benefits in excess of $300 is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs