Citation Nr: 21023887 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-10 598 DATE: April 21, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) for service connection for the cause of the Veteran’s death is denied. Entitlement to death pension is denied. Entitlement to accrued benefits is denied. Entitlement to burial benefits is denied. FINDINGS OF FACT 1. The Veteran died in August 2006. At the time of death, he had not been granted service connection for any disability. 2. The Appellant represents that she is the granddaughter or step-granddaughter of the Veteran. 3. The Appellant does not qualify for death pension or accrued benefits as she is over the age of 23 years and was not deemed incapable of self-support prior to the age of 18. 4. The Appellant’s applications for DIC, death pension, and accrued benefits were received in May 2018. 5. The Appellant’s application for burial benefits was also received in May 2018. CONCLUSIONS OF LAW 1. The criteria for DIC for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.57 (a), 3.102, 3.303, 3.312 (2018). 2. The criteria for death pension have not been met. 38 U.S.C. § 1541 (2012); 38 C.F.R. §§ 3.23, 3.57(a) (2018). 3. The criteria for accrued benefits have not been met. 38 U.S.C. §§ 5101, 5121 (2012); 38 C.F.R. §§ 3.57(a), 3.160, 3.1000 (2018). 4. The criteria for burial benefits have not been met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1700 -3.1713 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1943 to December 1945. He died in August 2006. The Appellant has contended she is his granddaughter or step-granddaughter. In August 2020 the Appellant was afforded a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. 1. DIC for service connection for the cause of the Veteran’s death 2. Death pension 3. Accrued benefits Death pension, accrued benefits, and dependency and indemnity compensation are available to a Veteran’s surviving spouse and/or children. For these benefits, the term “child” is defined, in pertinent part, as an unmarried child of the Veteran who is under the age of 18 years, became permanently incapable of self-support before reaching the age of 18 years, or after reaching the age of 18 years until reaching the age of 23 years is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 38 C.F.R. § 3.57(a). Nonservice-connected death pension is an income-based benefit for low income qualifying survivors of a veteran who had requisite service during a period of war or was receiving compensation or retirement pay for a service-connected disability at the time of death. 38 U.S.C. § 1541. Dependency and indemnity compensation is available to a qualifying survivor when a veteran died as a result of a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Accrued benefits are periodic monthly benefits to which an individual was entitled at death under existing ratings or decisions or those based on the evidence in the file at the date of death and were unpaid at death. In addition to a spouse, qualifying child, or parent, accrued benefits may be paid as necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(5); 38 C.F.R. § 3.1000(a)(5). Under 38 U.S.C. § 5121(c), a claim for accrued benefits requires the application be filed within one year of death. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Unfortunately, the Appellant’s claim fails to satisfy the criteria for DIC, death pension, and accrued benefits. 38 C.F.R. §§ 3.57, 3.312, 3.1000. At the August 2020 hearing, the Appellant testified that she is the nonbiological granddaughter of the Veteran. She reported that her grandparents raised her since birth, claimed her as a dependent on their taxes, and considered her their daughter. At the time of her May 2018 application for benefits, she was 47 years old. Unfortunately, the Appellant no longer qualifies as a recipient of DIC, pension, or accrued benefits. As noted above, a surviving child of a Veteran may only receive benefits if she is unmarried, under 18, under 23 and enrolled in school, or deemed permanently incapable of self-support before reaching 18. The Appellant is a surviving granddaughter, not child. There is no indication, and the Appellant has not alleged, that the Veteran adopted her as his child. Further, to the extent that she has raised the issue that she is permanently incapable of self-support, in stating that she is homeless, she is over the age of 23. To qualify as a child under VA laws, the question is not whether she is currently incapable of self-support, but whether she was deemed permanently incapable of self-support before reaching 18. Although the Board understands the Appellant has financial hardships, the evidence of record does not demonstrate that she was deemed permanently incapable of self-support before reaching the age of 18. For the accrued benefits claim, the Appellant’s claim is untimely. Under 38 U.S.C. § 5121(c), a claim for accrued benefits requires the application be filed within one year of death. Here, the Appellant filed her application for accrued benefits in 2018, more than one year after the Veteran’s 2006 death. Further, the record does not show that the Veteran had any unpaid benefits at the time of his death. In fact, he was not service connected for any disability. Moreover, the Appellant did not bear the expense of last sickness or burial. The Appellant has not submitted any funeral or burial receipts. On her application for burial benefits, she indicated that she did not incur any expenses related to the Veteran’s burial. Unfortunately, the Appellant’s claim fails to satisfy the criteria for DIC, pension, and accrued benefits. 38 C.F.R. §§ 3.57, 3.312, 3.1000. Based on the foregoing, the claims are denied. 4. Entitlement to burial benefits Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and nonservice-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 May 2018, 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 May 2018. An application for nonservice-connected burial benefits must be filed within two years after the burial or cremation of the veteran’s body. 38 C.F.R. § 3.1703(a). This time limit also applies to claims for a plot or interment. 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). In her May 2018 application for benefits, the Appellant indicated that she was solely claiming burial allowance for non-service-connected death. As such, the Board will only consider eligibility for nonservice-connected burial benefits. Pertinent to nonservice-connected burial benefits, VA received the Appellant’s application in May 2018. The Veteran died in August 2006, approximately 12 years prior to receipt of the burial application. He was cremated that same month. As the application for nonservice-connected burial benefits was not received within two years of the Veteran’s burial, it was untimely. 38 U.S.C. § 2304; 38 C.F.R. § 3.1703(a). Because the claim was not timely filed, the Board has no jurisdiction to adjudicate the merits of the claim and it must be denied as a matter of law. The Board is sympathetic 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). M. HYLAND 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.