Citation Nr: 1804554 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-11 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to burial benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served with the American Merchant Marine in oceangoing service from June 1945 to December 1946 and for further periods thereafter. His service prior to August 15, 1945, is considered active military service sufficient for veteran status. 38 C.F.R. § 3.7(x)(15). He died in September 1963. The appellant is his granddaughter. This appeal is before the Board of Veterans' Appeals (Board) from a May 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. In her April 2014 substantive appeal, the appellant requested a hearing before the Board in Washington, DC. A hearing was subsequently scheduled for April 2015, but prior to that time the appellant indicated in an April 2015 letter that she would not be able to personally attend the hearing. She requested that her representative present argument at the hearing on her behalf. Her representative therefore submitted an April 2015 informal hearing presentation in compliance with 38 C.F.R. § 20.700(d). The appellant has made numerous communications reiterating her request that her representative appear at an in-person hearing on her behalf. In-person hearings are not conducted without the appellant's presence unless good cause has been shown. 38 C.F.R. § 20.700(b). As no good cause has been shown, the appellant's request for an additional hearing is denied. FINDING OF FACT The Veteran's death occurred more than 2 years prior to the filing of this claim and was unrelated to active service. CONCLUSION OF LAW The criteria for payment of burial benefits have not been met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1600-12 (2013); 38 C.F.R. §§ 3.1700-13 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant seeks burial benefits for the Veteran's death. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which include burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the regulations at 38 C.F.R. §§ 3.1600 through 3.1612 and replaced them with new §§ 3.1700 through 3.1713. The purpose of the new regulations was twofold: to reorganize and rewrite for clarity, in plain language, the provisions applicable to burial benefits, and to streamline the application and payment process. 78 Fed. Reg. 76574-75 (Dec. 18, 2013); 79 Fed. Reg. 32653 (June 6, 2014). The final rulemaking is applicable to claims for burial benefits pending on or after July 7, 2014. The Agency of Original Jurisdiction has not yet considered the appellant's claim in light of the new regulations; however, none of the amendments apply to the case at hand. Rather, the substantive requirements for a nonservice-connected burial allowance remain the same as in the previous version of the regulations. There is thus no prejudice to the Appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In general, 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. Because the new regulations were specifically rewritten for clarity, the Board will cite principally to the new regulations. The appellant does not specifically claim nonservice-connected burial benefits. In any event, claims for nonservice-connected burial benefits must be received within 2 years of burial or cremation. 38 C.F.R. § 3.1703(a). Because the Veteran was buried in September 1963 and no claim was received within 2 years, nonservice-connected burial benefits are unavailable to the appellant as a matter of law. Service-connected burial expenses of a deceased veteran are payable if the veteran died of a service-connected disability. 38 U.S.C.A. § 2307; 38 C.F.R. § 3.1600(a). The appellant's claim rests entirely on her contention that the Veteran died during a period of active military service. Unfortunately, the evidence indicates that the Veteran's active duty service ended on August 15, 1945, at which time service with the Merchant Marine ceased to be recognized as active military service. While it appears that he died on board a United States Maritime Service vessel, there are no service records indicating service in the armed forces at that time. Continued service in the Merchant Marine beyond August 15, 1945, is not considered active service for the purposes of eligibility for VA benefits. The Veteran therefore did not die in service, and there is no indication in the record that he had any service-connected disabilities. As such, the Board finds that the Veteran's death was unrelated to service, and service-connected burial benefits are therefore denied. Finally, the Board notes that as the Veteran's granddaughter, the appellant is not entitled to receive burial benefits without a showing that she personally paid for the costs being reimbursed or is the executor of the estate of the person who made such a payment. See 38 C.F.R. § 1702(c). ORDER Burial benefits are denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs