Citation Nr: 18145302 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-04 031A DATE: October 30, 2018 ORDER The claim of entitlement to nonservice-connected burial benefits greater than $300.00 is denied. FINDINGS OF FACT 1. In a February 2014 decision, the appellant was awarded $300.00 for nonservice-connected burial benefits. 2. The Veteran died at his residence in March 2013, and was buried later that month. The appellant’s application for burial benefits was received in April 2013. 2. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 3. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran’s death. 4. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 5. The Veteran’s body was not unclaimed, and the appellant paid expenses related to the Veteran’s burial. 6. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for the purpose of examination, treatment, or care. CONCLUSION OF LAW The criteria for payment of burial benefits greater than $300.00 are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1600-3.1610 (as in effect prior to July 7, 2014); 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1943 to October 1945. He died in This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2014 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania granted $300.00 in nonservice-connected burial benefits. In October 2014, the appellant filed a notice of disagreement (NOD) as to the amount awarded. In January 2015, a statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in February 2015. A supplemental SOC (SSOC) was issued in January 2016. The appellant asserts that she is entitled to nonservice-connected burial benefits greater than the $300.00 already awarded. Specifically, she argues that she is entitled to a plot or interment allowance to recoup incurred costs related to the purchase of the Veteran’s plot. 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 new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 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 April 2013, 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, VA may consider both the new and old provisions, with due consideration to the effective date of the changes, and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the old regulations, in effect at the time the appellant’s claim was filed in April 2013. As explained in the January 2015 SOC, the appellant was erroneously awarded $300.00 for nonservice-connected burial benefits in the April 2013 decision. Specifically, if the cause of a veteran’s death is not service-connected, entitlement is based upon the following conditions: at the time of death, the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or, the veteran had an original claim for either benefit pending at the time of her death for which there was evidence available on the date of death to support the award for compensation or pension or, in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, the deceased was a veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and there is no next of kin and the veteran’s estate funds are insufficient to cover expenses. See 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1600(b) (now 38 C.F.R. §§ 3.1705(b), (e); 3.1708(b),(c)). Alternatively, a burial allowance may be paid if a veteran died from nonservice-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. See 38 U.S.C. § 2303(a); 38 C.F.R. §§ 3.1600(c), 3.1605 (now 38 C.F.R. § 3.1706(b), (d)). Here, the evidence does not reflect that there was an original or reopened claim for either benefit pending at the time of the Veteran’s death, nor does the appellant claim that any such claim was pending. Additionally, the Veteran is not shown to have been discharged or released from active service for a disability incurred or aggravated in the line of duty nor was his body held by a State. Finally, it is uncontroverted that the decedent died at his residence. The Board acknowledges an April 2013 rating decision which granted nonservice-connected pension and special monthly compensation (SMC) based on aid and attendance, effective March 28, 2013. The Board notes that the Veteran died on March [redacted], 2013. As explained in the January 2015 SOC, the Veteran’s claim for nonservice-connected pension and SMC was received on March 28, 2013, following the Veteran’s death. Because the Veteran’s claim was not received in the RO until after his death, the claim did not survive his death. See Zevalkink v. Brown, 102 F.3d 1236,1243-4 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 47 (1994), Smith v. Brown, 10 Vet. App. 330, 333-34 (1997). Thus, his March 28, 2013 claim did not remain pending at the time of his death, which means, in turn, that the April 2013 rating decision should not have been issued. It carried no legal effect, and was null and void. See Smith v. Brown, 10 Vet. App. 330, 334 (1997). Furthermore, pension benefits were awarded effective March 28, 2013, which was after the Veteran’s death. Thus, the Veteran was not in receipt of VA compensation at the time of his death. Accordingly, as explained in the January 2015 SOC, as the criteria for nonservice-connected burial benefits were not actually met, the $300.00 awarded was in error. Regarding a plot or interment allowance, the Veteran 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 and he did not die while admitted to a VA facility, as previously explained. Nor was the Veteran discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty (or had a disability at the time of discharge that would have justified a discharge for disability). In other words, a plot or interment allowance would be precluded by other applicable provisions of 38 C.F.R. § 3.1600(f) (now 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 must be denied. The Board is sympathetic to the fact that the appellant incurred costs greater than $300.00 related to the Veteran’s funeral and burial. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. As, on these facts, there is no legal basis to award burial benefits, the appellant’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel