Citation Nr: 18145566 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-39 065A DATE: October 29, 2018 ORDER Entitlement to burial benefits in excess of $1,022 is denied. The appellant is not eligible for entitlement to accrued benefits. FINDINGS OF FACT 1. The Veteran died in December 2012; his death was not service-connected. 2. The appellant has received $300 for funeral costs and $722 for cemetery/plot costs, for a total of $1,022 for burial expenses. 3. The appellant is over the age of 23 years and the weight of the competent and probative evidence is against finding that he became incapable of self-support prior to the age of 18 years. CONCLUSIONS OF LAW 1. The criteria for entitlement to burial benefits in excess of $1,022 have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1705, 3.1707. 2. The criteria for basic eligibility for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 101(4), 5121; 38 C.F.R. §§ 3.57, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1951 to May 1953; he died in December 2012. The appellant is his child. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2014 and April 2014 decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the appellant and his spouse, in Roanoke, Virginia, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. 1. Entitlement to burial benefits in excess of $1,022 A January 2014 decision granted burial expenses to the appellant in the amount of $300 for funeral costs and $722 for cemetery/plot costs, for a total of $1,022. The appellant contends that he is entitled to reimbursement of burial expenses he incurred in excess of $1,022 already received. 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 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 June 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 affective date rules). However, the provisions potentially applicable under the facts of this case have undergone no substantive changes; both versions are equally favorable. Therefore, the Board will principally cite the regulations currently in effect. A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran. 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1704-3.1706. If a veteran’s death is not service-connected, a sum not exceeding $300 may be made paid toward funeral and burial expenses of the deceased veteran, subject to certain specified conditions. 38 U.S.C. § 2302; 38 C.F.R. § 3.1705(a). Also, if the eligible veteran was not buried in a national cemetery, an additional $700 is payable for a plot or internment allowance. 38 U.S.C. § 2303(b); 38 C.F.R. § 3.1707. Section 3.1707, in pertinent part, provides that, unless VA has evidence on the date it receives notice of the Veteran’s death that the expenses incurred were less, VA will pay the maximum plot or interment allowance specified in 38 U.S.C. § 2303(b)(2) to a claimant who incurred plot or interment expenses relating to the purchase of a burial plot for a deceased veteran if the veteran is buried in a cemetery other than a cemetery described in paragraphs (b)(1) and (b)(3) of this section and the veteran was eligible for a burial allowance under § 3.1705, burial allowance based on non-service-connected death. 38 U.S.C. § 2303(b)(2) allows for payment of a sum not exceeding $722 as a plot or interment allowance when the veteran’s death occurs after October 1, 2012, but before October 1, 2013. See 38 U.S.C. § 2303(c). Here, the appellant was already awarded $300 in nonservice-connected burial benefits. This is maximum amount allowable where a veteran’s death is not related to service. See 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1705(a). There is no argument or evidence that the Veteran’s death was related to service. In fact, the Veteran did not have any service-connected disabilities and there were no pending claims for service connection at the time of his death. As such, there is no basis for an award in excess of $300 for nonservice-connected funeral costs. Likewise, the appellant was awarded $722 for a plot allowance. He was not buried in a national cemetery. See 01/27/2014, VA 21-8947. Thus, the maximum amount for a plot allowance is $722, as he died between October 1, 2012, and October 1, 2013. See 38 U.S.C. § 2303(b), (c); 38 C.F.R. § 3.1707. As such, the appellant has already received the maximum amount payable for a plot allowance. The Board acknowledges the appellant’s argument that he incurred costs greater that the amounts he was awarded. However, as explained above, the criteria for awards greater than $300 for nonservice-connected funeral expenses and $722 for a plot or interment allowance simply are not met, despite the fact that the appellant may have incurred costs in excess of those amounts. The legal authority pertaining to the amount of nonservice-connected burial benefits and a plot or interment allowance 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 any additional amounts than those already awarded, the appellant’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). 2. Basic eligibility for entitlement to accrued benefits. The appellant contends that he is entitled to accrued benefits due and unpaid to the Veteran at the time of his death. Upon the death of a payee of VA benefits, periodic monetary benefits to which he or she was entitled to, on the basis of evidence in the file at the date of death (accrued benefits) may be paid to certain parties. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121(c). Persons eligible for such payments (which are paid upon the death of a veteran to the first living person listed) are: (i) his or her spouse; (ii) his or her children in equal shares; (iii) and his or her dependent parents or the surviving parent. 38 C.F.R. § 3.1000(a)(1). They are also payable upon the death of a surviving spouse or remarried surviving spouse to the veteran’s children. 38 C.F.R. § 3.1000(a)(2). The term “child” means an unmarried person who is a legitimate child, a legally adopted child, a stepchild who was a member of the veteran’s household at the time of death, or an illegitimate child (acknowledged by the veteran either in writing or via court ordered child support) of the veteran; and is under the age of 18 years; or before reaching the age of 18 years became permanently incapable of self-support; or after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4); 38 C.F.R. §§ 3.57, 3.1000(d)(2). (Continued on the next page)   The appellant is the Veteran’s child; however, he is over 23 years old and there is no evidence to suggest that he became permanently incapable of self-support before reaching the age of 18 years. See 04/27/1972, VA 21-526 (listing appellant’s date of birth as May 1958); 05/14/2015, Power of Attorney (Veteran’s general power of attorney in favor of appellant, indicating that appellant is capable of self-support). As the appellant does not fall within the statutorily enumerated categories of people eligible to receive benefits, he is ineligible for benefits exclusive of reimbursement for last sickness and burial expenses; accordingly, the claim is denied as a matter of law. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel