Citation Nr: 1800017 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 15-02 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to nonservice-connected burial benefits, to include a plot or interment allowance. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel INTRODUCTION The Veteran had active military service from May 1942 to October 1945. He died in February 2012 and the Appellant is his wife. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 administrative decision of the VA Pension Management Center in St. Paul, Minnesota. Jurisdiction is currently held under the VA Regional Office (RO) in San Diego, California. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran died in February 2012 and was buried in a private cemetery. 2. The Veteran did not have a service-connected disability or a claim pending for entitlement to service connection for a disability at the time of his death, and was not in receipt of pension. 3. The Veteran was not discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and his body is not being held by a State. 4. The Veteran did not die while hospitalized by VA in a VA or non-VA facility or while under certain VA-authorized travel for examination, treatment, or care. CONCLUSION OF LAW The criteria for entitlement to the payment of nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302-2308; 38 C.F.R. §§ 3.1600-1610 (prior to July 7, 2014); 38 C.F.R. §§ 3.1700-1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act (VCAA); however, those provisions are not applicable in cases such as this where resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no effect on appeal limited to matter of law); see also 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. No amount of additional evidentiary development would change the result of this case. Accordingly, VA's duties to notify and assist are not applicable here and need not be addressed. II. Analysis 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 the new 38 C.F.R. §§ 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 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 May 2014, 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, the Board must consider both the new and old provisions, and apply the most favorable criteria. However, the provisions potentially applicable under the facts of this case have undergone no substantive changes. Both versions are equally favorable. For the sake of clarity, the Board will cite principally to the new regulations A burial allowance is payable under certain circumstances to cover some of a deceased veteran's burial, funeral, and transportation expenses. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1700. If a veteran's death is not due to service-connected causes, a sum may be paid to cover the burial and funeral expenses of the deceased Veteran and the expense of preparing the body and transporting it to the place of burial if one of the following conditions is met: (1) the veteran was in receipt of VA pension or compensation (or but for the receipt of military retired pay the veteran would have been in receipt of compensation) at the time of death; (2) the veteran had an original or reopened claim for either benefit pending at the time of death, and certain evidentiary criteria are met; or (3) the veteran served during a period of war, or was discharged or released from active service for a disability incurred or aggravated in the line of duty, and his or her body is being held by a State, and the body is unclaimed and there are insufficient resources in the veteran's estate to cover burial and funeral expenses. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705(b). An application for a nonservice-connected burial allowance 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. § 3.1703(a). There are no other time limitations to file claims for VA burial benefits. Id. Additionally, 38 C.F.R. § 3.1703(a)(2) creates a limited exception to the aforementioned time limit for instances where an application's timeliness was affected because a correction of the character of the veteran's discharge was necessary before the application could be filed. The Veteran died in February 2012 and was buried in March 2012. His death certificate shows that he died at his home and was not buried in a national cemetery or other cemetery controlled by the United States. At the time of his death, he was not in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of such); and he did not have an original or reopened claim for pension or compensation pending at the time death for which there was evidence of record on the date of death to have supported an award for such benefit. His body is not being held by a State with no next of kin or other person claiming the body and without sufficient resources in the Veteran's estate to cover burial and funeral expenses. In addition, the Veteran did not die while properly hospitalized by VA in a VA or non-VA facility or while under certain VA-authorized travel for examination, treatment, or care. The Appellant's initial claim was filed in May 2014. As the claim was received more than two years after the Veteran's death and the evidence shows that he was not buried in a national cemetery, the Appellant's claim was untimely. Further, the exception under 38 C.F.R. § 3.1703(b) is not applicable in this instance. The Board notes that the issue of the timeliness of the Appellant's claim was not previously raised by the RO; however, even if the claim were timely it would still be denied. In this case, none of the conditions for nonservice-connected burial benefits as set forth in 38 C.F.R. § 3.1705 discussed above have been met. The evidence does not show, nor does the Appellant contend, that at the time of the Veteran's death, he was in receipt of pension or compensation or that he had an original or reopened claim for pension or compensation pending for which there was evidence of record on the date of death to have supported an award for such benefit. Since the Veteran has been buried, the evidence also does not show that his body is being held by a State. As the Veteran's death certificate shows that he died at home, the evidence does not show, nor does the Appellant contend, that he died while properly hospitalized by VA in a VA or non-VA facility or while under certain VA-authorized travel for examination, treatment, or care. Consequently, the criteria for nonservice-connected burial benefits have not been met. The law also provides for the payment of plot or interment allowance in certain circumstances. A claim for entitlement to a plot or interment allowance is subject to the following conditions: (1) the deceased veteran is eligible for burial in a national cemetery; (2) the veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States; and (3) the applicable further provisions of 38 C.F.R. §§ 3.1707(b) or (c) are met. The Veteran is considered to have been a "veteran" for VA purposes such that he was eligible to have been buried in a national cemetery (see 38 C.F.R. § 38.620(a) and 38 C.F.R. § 3.1701), and his death certificate shows that he 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 Veteran was not eligible for a burial allowance under 38 C.F.R. §§ 3.1705, based on nonservice-connected death; he was not eligible for a burial allowance under 38 C.F.R. §§ 3.1706, based on death while admitted to a VA facility; he was not discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty; and he was not shown by official service records to have had a disability at the time of discharge from active service which would have justified a discharge for disability. In other words, plot 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 would necessarily be denied. The Appellant contends that nonservice-connected burial benefits, including plot or interment allowances, are warranted, asserting essentially that such benefits should be awarded based on the Veteran's long and honorable service. While the Board is sympathetic to her claim, entitlement to burial benefits is established based upon specific and unambiguous requirements that have not been met in the instant case. The Board has no authority to grant claims on an equitable basis but is constrained to follow specific provisions of law. See 38 U.S.C. § 7104(c). The Board emphasizes, however, that the denial of this claim does not in any way diminish the Veteran's distinguished service, which is duly acknowledged and appreciated. In conclusion, the evidence does not indicate that the conditions for burial benefits, set forth in 38 C.F.R. §§ 3.1700-3.1713 (formerly 38 C.F.R. § 3.1600 et seq.), have been met. There is no legal entitlement to a burial allowance and the appeal must be denied. ORDER Entitlement to nonservice-connected burial benefits, to include a plot or interment allowance, is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs