Citation Nr: 1825697 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-34 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to burial benefits, on a service-connected or nonservice-connected basis. ATTORNEY FOR THE BOARD M. C. Wilson, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to February 1946. The Veteran died in February 2014 and the appellant is his son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 decision of the Department of Veterans Affairs (VA) Pension Center in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. The Veteran died in February 2014. 2. The Veteran was not service connected for any disease or disability at the time of his death. 3. The Veteran was not in receipt of VA disability compensation or pension at the time of his death, nor has it been suggested that, but for the receipt of military retirement pay, he would have been in receipt of compensation. 4. The Veteran had no pending claim for VA disability compensation or pension at the time of his death. 5. The Veteran's body is not being held by a State. 6. The Veteran did not die while hospitalized by VA in a VA or non-VA facility or while traveling under proper authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care. CONCLUSION OF LAW The criteria for burial benefits, either on a service-connected or nonservice-connected basis, are not met. 38 U.S.C. § 2302 (West 2002); 38 C.F.R. §§ 3.1600-3.1612 (2013); 38 C.F.R. §§ 3.1700-3.1713 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 38 C.F.R. §§ 3.1600 through 3.1612 and replaced them with new §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653, 32,658. As this claim was pending at the time of the regulation change, the Board shall analyze the claim under both the old and the new regulations. Here, the Veteran was not service connected for any disease or disability at the time of his death; thus, the evidence does not show that the Veteran's death was due to a service-connected condition and only the nonservice-connected burial benefits regulations are for potentially application. The claim for service-connected burial benefits is denied as a matter of law. See 38 C.F.R. § 3.1704. Under the previous regulations in the case of a nonservice-connected death, entitlement to burial benefits is based upon the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation; or, (2) the veteran had an original or reopened claim for either benefit pending at the time of the veteran's death and in the case of a reopened claim there is sufficient prima facie evidence of record on the date of the veteran's death to show entitlement; or (3) 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 the body of the deceased is being held by a State. 38 U.S.C. § 2302(a) (West 2002); 38 C.F.R. § 3.1600 (b) (2013). Burial benefits may also be paid if a person dies from nonservice-connected causes while "properly hospitalized" by VA (in a VA or non-VA facility). 38 C.F.R. § 3.1600(c) (2013). Finally, if a Veteran dies in route while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care, burial expenses will be allowed as though death had occurred while properly hospitalized by VA. 38 C.F.R. § 3.1605(a) (2013). The new regulation regarding nonservice-connected burial benefits is found at 38 C.F.R. § 3.1705. That regulation provides that a burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. As with the old regulation, burial allowance is also warranted for a veteran who died while hospitalized by VA or who died while traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care. 38 C.F.R. § 3.1706. The evidence shows that the Veteran died in February 2014 due to congestive heart failure while at home. The appellant and the Veteran's estate paid the expenses for the Veteran's funeral and the appellant filed the current claim in February 2014. See February 2014 Application for Burial Benefits (VA Form 21-530). The record reflects that, at the time of his death, the Veteran was not in receipt of VA compensation or pension benefits, he did not have a claim pending and, while he had war time service, there is no evidence that his body was held by a State because no next of kin could be located. Under these circumstances, non-service connected burial benefits are not warranted under either the old or new regulations. Under the old regulation, the claim fails both because the Veteran was not in receipt of pension or compensation benefits and because the Veteran did not have a claim pending at the time of his death. Moreover, while the Veteran had war time service, the claim also fails under the old regulation because the appellant does not claim and the record does not show that his body was held by a State and his war time service alone does not warrant awarding burial benefits. 38 C.F.R. § 3.1600(b) (2013). In this regard, there is also no evidence that the Veteran was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty. Id. Under the new regulations, the appellant's claim fails because the Veteran was not receiving VA pension or disability compensation, because there is no evidence that he would have been receiving disability compensation if not for the receipt of military retired pay, and because the Veteran did not have a claim pending at the time of his death. 38 C.F.R. § 3.1705(b) (2017). Likewise, as there is also no evidence that the Veteran died in a VA facility or while being transported to or from such a facility, the Board also finds that burial benefits are also not warranted under 38 C.F.R. § 3.1605(a) (2013) or 38 C.F.R. § 3.1706 (2017). The Board acknowledges and appreciates the Veteran's honorable military service and is sympathetic to the loss his family has suffered. The payment of burial benefits, however, is strictly based on specific statutory and regulatory guidelines, which have not been met in this case. There being no doubt to be resolved, the claim for entitlement to burial benefits is denied. ORDER Entitlement to burial benefits, on a service-connected or nonservice-connected bases, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs