Citation Nr: 18152536 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-01 726 DATE: November 27, 2018 ORDER The claim of entitlement to death pension benefits is denied. The claim of entitlement to burial benefits is denied. FINDINGS OF FACT 1. The Veteran served on active duty for more than 90 days during a period of war. 2. In calendar year 2015, the appellant’s countable income was $23,660 and exceeded the maximum annual pension rate for that year. 3. In December 2014, the Veteran died at a private hospital and was buried in January 2015. The appellant’s application for burial benefits was received in January 2015. 4. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 5. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran’s death, which was granted. 6. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 7. The Veteran’s body was not unclaimed, and the appellant paid expenses related to the Veteran’s burial. 8. 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. CONCLUSIONS OF LAW 1. The eligibility requirements for entitlement to Department of Veterans Affairs (VA) death pension benefits are not met. 38 U.S.C. §§ 101, 1501, 1503, 1541, 1543, 5107; 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.23, 3.102, 3.159, 3.262, 3.271, 3.272, 3.273, 3.274, 3.275. 2. The criteria for payment of burial benefits are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1949 to May 1953. He died in December 2014. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from May 2015 decisions in which the VA Regional Office (RO) in Philadelphia, Pennsylvania, which denied death pension and burial benefits. The appellant filed a notice of disagreement (NOD) in June 2016. The RO issued statements of the case (SOCs) in December 2015, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2016. I. Death Pension The appellant argues that she is entitled to a death pension. Improved death pension is a benefit payable to the surviving spouse of a veteran of wartime service who has died of nonservice-connected disability. Basic entitlement exists if (i) the veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. §§ 3.23 and 3.24. 38 U.S.C. §§ 101, 1521(j); 38 C.F.R. § 3.3(b)(4). In this case, review of the record reveals that the Veteran served from July 1949 through May 1953 during the Korean conflict. He died in December 2014 and was not service-connected for any disability. Therefore, the first of two criteria needed to establish basic entitlement to death pension benefits has been met. See 38 C.F.R. § 3.3(b)(4)(i). The Board must now consider whether the appellant meets the net worth requirements. In this regard, pension will be denied when the corpus of the estate is such that under all the circumstances, including consideration of annual income, it is reasonable that some part of the corpus of such estate be consumed for the surviving spouse’s maintenance. 38 U.S.C. § 1543(a)(1); 38 C.F.R. § 3.274(c). The terms “corpus of estate” and “net worth” are interchangeable and mean the market value, less mortgages or other encumbrances, of all real and personal property owned by the appellant, except the appellant’s dwelling (single family unit), including a reasonable lot area, and personal effects suitable to and consistent with the appellant's reasonable mode of life. 38 C.F.R. § 3.275(b). The surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of his or her countable income. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273. Payments of any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. The types of exclusions from income for VA pension purposes include certain unreimbursed medical expenses in excess of five percent of the MAPR that have been paid within the 12-month annualization period, educational expenses, and a child's work income. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.272. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). In January 2015, the appellant filed a formal claim submitted via VA Form 21-534 (Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse), the appellant reported having no assets and no medical expenses. The record reflects that beginning January 1, 2015, the appellant received $1,504.90 in Social Security Administration (SSA) benefits (which equates to $18,058.00 annually). She received $23.00 per month in employment pension benefits (which equates to $276.00 annually). She also received $492.00 per month from the Veteran’s employment pension (which equates to $5,904.00 annually) and a one-time payment of $255.00 from SSA due to the Veteran’s death. Thus, turning to the issue of countable income, the record shows that the appellant's annual income for VA purposes effective January 1, 2015, was $24,494.00. In 2015, the maximum allowable pension rate was $7,933 for a surviving spouse without a dependent child was $8,630.00. The record reflects that the appellant paid a Medicare premium of $1,258.00 in 2015. No other medical expenses were reported by the appellant. In considering whether the appellant’s unreimbursed medical expenses will be excluded from her income for calendar year 2015, VA must determine whether they were or will be in excess of five percent of the applicable maximum annual pension rate for the surviving spouse as in effect during the 12-month annualization period in which the medical expenses were paid. 38 C.F.R. § 3.272(g)(2)(iii). The MAPR is generally revised every December 1st based upon Federal data as to the increase in the cost of living and is applicable for the following 12-month period. Effective since December 1, 2014, the MAPR for a surviving spouse without a dependent child has been $8,630.00. Five percent of this amount is $431.00 for purposes of medical expenses. Because the appellant’s medical expenses of $1,258.00 for calendar year 2015 exceed five percent of the MAPR for that year, the entire amount of her medical expenses may be excluded from her total income. However, even after subtracting this amount ($1,258.00) from $24,494.00, the remaining countable income of $23,236.00 still far exceeds the MAPR. In summary, after reviewing all pertinent evidence, the Board finds that the appellant’s countable income exceeded applicable MAPR rate for calendar year 2015 and is, thus, a bar to receipt of death pension benefits. II. Burial Benefits The appellant asserts her entitlement to burial benefits to recoup expenses related to the Veteran’s funeral and burial. 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 January 2015, i.e., following 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 new regulations, in effect at the time the appellant’s claim was filed in January 2015. It is noted, at the outset, that claims for a burial allowance may be advanced only by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses.” at 38 C.F.R. § 3.1702(b)(3). Here, the Veteran died in December 2014 and the appellant filed the claim for burial benefits in January 2015. In her application for burial benefits, the appellant expressly stated that she was not claiming that service-connected burial benefits were warranted. Accordingly, the Board will only consider whether nonservice-connected burial benefits are warranted. 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. § 3.1705. 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. §§ 3.1705(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. § 3.1706(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. § 3.1703(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. § 3.1703(a). Here, the Board notes that the appellant’s claim for burial benefits was filed within two years of the Veteran’s burial. Thus, the application was timely. Nonetheless, the criteria for the award of nonservice-connected burial benefits are not met. At the time of his death in December 2014, the Veteran is not shown by the record to have been granted service connection for any disability, and he was not receiving any VA compensation or pension benefits. Further, the Veteran did not have any claims for VA benefits pending at the time of his death. Moreover, the Veteran was not entitled to VA compensation at the time of his death. 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. Further, it is uncontroverted that the Veteran died at a private hospital. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and burial, and acknowledges that the Veteran had honorable service. 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