Citation Nr: A21016490 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 200415-77906 DATE: October 7, 2021 ORDER The character of the decedent's discharge from service constitutes a bar to receiving Death and Indemnity Compensation (DIC) and death pension benefits, and the benefits sought are denied. The character of the decedent's discharge from service constitutes a bar to receiving service-connected and nonservice-connected burial benefits, to include plot or interment allowance and transportation reimbursement, and the benefits sought are denied. The character of the decedent's discharge from service constitutes a bar to receiving burial transportation allowance, and the benefit sought is denied. FINDING OF FACT The decedent was discharged from service under other than honorable conditions as the result of willful and persistent misconduct, and the decedent was not insane at the time he committed such misconduct. CONCLUSIONS OF LAW 1. The character of the decedent's discharge from service constitutes a bar to DIC and death pension benefits. 38 U.S.C. § 101, 1110, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.354 (2020). 2. The character of the decedent's discharge from service constitutes a bar to service-connected and/or nonservice-connected burial benefits, to include plot or interment allowance and transportation reimbursement. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1701 (2020). 3. The character of the decedent's discharge from service constitutes a bar to burial transportation allowance. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.12, 3.13, 3.354, 3.1701 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The decedent served on active duty from November 1973 to April 1975. He died in December 2019. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2020 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the April 2020 VA Form 10182, Decision Review Request: Board Appeal, the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. After the AOJ rating decision on appeal, in June 2020 the Board issued a decision finding that the character of the decedent's discharge from service is a bar to receiving benefits from VA. Because this is not new evidence, but rather a new legal finding, the Board may consider the effect of the June 2020 decision on the present appeal. Entitlement to DIC, death pension, and burial benefits. The Appellant requests compensation for DIC, death pension, and burial benefits. Governing law provides that any person classified as a "veteran" is eligible for burial benefits. 38 C.F.R. § 3.1701. A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). In pertinent part, 38 C.F.R. § 3.12 provides that if the former service member did not die in service, pension, compensation, or DIC is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. See 38 C.F.R. § 3.12(a). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. 38 C.F.R. § 3.12(b). The decedent died in December 2019 from cancer of the pancreas. He had not been awarded service connection for any disability at the time of his death. In January 2020, the Appellant filed applications requesting DIC, survivors pension, and burial benefits, which were denied in the March 2020 decisions presently on appeal. Prior to his death, the decedent appealed a July 2014 administrative decision which found that his service was not honorable for VA purposes. The matter was before the Board in April 2019, when the claim was remanded in order to attempt to obtain evidence relating to the decedent's December 2018 application for an upgrade of the character of his discharge and a medical opinion addressing the decedent's in-service sanity. In March 2020, the Appellant was granted substitution to continue the claim. In a June 2020 decision, the Board found that the decedent was discharged from service under other than honorable conditions. As such, the Board concluded that the character of the decedent's discharge from service is a bar to receiving VA compensation benefits. In making this determination, the Board observed that the decedent's misconduct was willful and persistent, and he was not insane at the time he committed such misconduct. See 38 C.F.R. § 3.12(d). VA's determination as to the character of the decedent's discharge is no longer on appeal and is therefore binding on the Board. Consequently, the character of his discharge is considered a bar to payment of VA benefits, including DIC, death pension, and burial benefits sought by the Appellant. 38 C.F.R. § 3.12(a). The appeal is denied. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.