Citation Nr: 18149294 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-40 779 DATE: November 9, 2018 ORDER The claim of entitlement to nonservice-connected burial benefits is granted. FINDING OF FACT 1. The Veteran died in October 2013 and was cremated later that month. 2. The appellant’s application for burial benefits was received in October 2013. 3. At the time of his death, the Veteran had a claim for pension pending with the agency of original jurisdiction (AOJ). 4. In a July 2014 rating decision, nonservice-connected pension was granted, effective October 2, 2013, prior to the Veteran’s death. CONCLUSION OF LAW The criteria for payment of nonservice-connected burial benefits are 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 1950 to September 1953. He died in October 2013. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota denied entitlement to nonservice-connected burial benefits. In December 2013, the appellant filed a notice of disagreement (NOD). In November 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) later that month The appellant asserts her entitlement to burial benefits to recoup expenses related to the Veteran’s funeral and cremation. 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 October 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 October 2013. It is noted, at the outset, that claims for a burial allowance may be executed only by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses.” 38 C.F.R. § 3.1601(a)(1) (now at 38 C.F.R. § 3.1702(b)(3)). Initially, the Board notes that service connection for the cause of the Veteran’s death was denied in a July 2014 rating decision. The appellant did not disagree with that denial and, as such, service connection for the cause of the Veteran’s death is not before the Board. Accordingly, only eligibility for benefits on a nonservice-connected basis may be considered. Where a veteran’s death is not service-connected, a burial allowance to cover the burial and funeral expenses, as well as the expense of transporting the body to the place of burial may be payable, but only under certain circumstances. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1600(b) (now 38 C.F.R. § 3.1705). 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)). An application for nonservice-connected burial and funeral expenses 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. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)). This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1600(f). The two-year time limit does not apply to claims for service-connected burial allowance, or for the cost of transporting a veteran’s body to the place of burial when the veteran dies while properly hospitalized by VA, or for burial in a national cemetery. 38 C.F.R. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)). Here, the Board notes that the appellant’s claim for burial benefits was filed within two years of the Veteran’s cremation. Thus, it was timely filed. At the time of his death, the Veteran had a claim for pension pending with the AOJ. Notably, the claim for pension was received on October 3, 2013 and the Veteran died on October [redacted], 2013. Ultimately, in a July 2014 rating decision pension was granted, effective October 3, 2013 (for accrued benefits purposes). Thus, at the time of his death, the Veteran was entitled to pension benefits. As the Veteran had an original claim for pension pending at the time of his death for which there was evidence available on the date of death to support the award of pension, the criteria for nonservice-connected burial benefits have been met and the claim is granted. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel