Citation Nr: 18160419
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 09-41 338
DATE:	December 27, 2018
ORDER
The claim of entitlement to a death pension is denied.
The claim of entitlement to service connection for the cause of the Veteran’s death is denied.
The claim of entitlement to service-connected 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 2007, the appellant’s countable income was $12,621 and exceeded the maximum annual pension rate for that year.
3.  In calendar year 2008, the appellant’s countable income was $12,621 and exceeded the maximum annual pension rate for that year.
4.  In calendar year 2009, the appellant’s countable income was $12,550 and exceeded the maximum annual pension rate for that year.
5.  In calendar year 2014, the appellant’s countable income was $15,949 and exceeded the maximum annual pension rate for that year.
6.  In calendar year 2015, the appellant’s countable income was $13,080 and exceeded the maximum annual pension rate for that year.
7.  In calendar year 2016, the appellant’s countable income was $13,838 and exceeded the maximum annual pension rate for that year.
8. In calendar year 2017, the appellant’s countable income was $15,757 and exceeded the maximum annual pension rate for that year.
9.  The Veteran’s death certificate lists his respiratory failure as the immediate cause of death, with blood cancer as the sole underlying cause of death.
10.  At the time of the Veteran’s death in May 2007, service connection was in effect for type II diabetes mellitus and erectile dysfunction.
11.  Although the Veteran service in Vietnam during the Vietnam Era, and thus is presumed to have been exposed to herbicides (to include Agent Orange), blood cancer is not among the diseases recognized by the VA Secretary as etiologically related to such exposure.
12.  The blood cancer resulting in the Veteran's death first manifested many years following the Veteran’s separation from service, and the weight of the probative evidence is against a finding of a medical relationship, or nexus, between the cause of the Veteran’s and either service or service-connected disability.
13.  A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death.
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 service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1310, 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
3.  The criteria for payment of service-connected burial benefits are not 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 CONCLUSIONS
The Veteran served on active duty from November 1970 to September 1972.  He died in May 2007.  The appellant is his surviving spouse.
This appeal to the Board of Veterans’ Appeals (Board) arose from an September 2007 rating decision in which the VA Regional Office (RO) in Chicago, Illinois, inter alia, denied the claims for burial benefits, death pension, and service connection for the cause of the Veteran’s death.  In November 2007, the appellant filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in October 2009 that addressed the claims for death pension and service connection for the cause of the Veteran’s death and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month.
Pursuant to the Board’s remand directives, an SOC addressing the claim for burial benefits was issued in February 2008 and the appellant filed a substantive appeal in April 2018.
In September 2012, the appellant presented sworn testimony at a hearing before a Veterans Law Judge (VLJ) who is no longer with the Board.  A transcript of that hearing is of record.  The appellant has been notified of her right to have a new hearing, but elected to have his appeal decided on the evidence of record.  See October 2018 Hearing Options Response.
In February 2013, the Board denied the claims of service connection for MDS for accrued benefits purposes and dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318.  The Board remanded the claims for service connection for the cause of the Veteran’s death, death pension and burial benefits to the agency of original jurisdiction.  After accomplishing further action, the AOJ continued to deny the claims for death pension and service connection for the cause of the Veteran’s death (as reflected in a July 2018 supplemental SOC (SSOC) and returned these matters to the Board for further appellate consideration. 
Pursuant to the February 2013 remand directives, the AOJ issued an SOC with respect to the claim for burial benefits, as reflected above.  Further, terminal medical records from Rush University Medical Center were obtained and associated with the claims file.  Improved Pension Eligibility Verification Reports were provided to the appellant, which she completed and returned to the AOJ.  Finally, in June 2018, a VA examiner offered an opinion on the etiology of the Veteran’s cause of death, as will be discussed in greater detail below.  Thus, substantial compliance with the February 2013 remand directives has been achieved.  See Stegall v. West, 11 Vet. App. 268 (1998).  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
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 November 1970 to September 1972 during the Vietnam conflict.  He died in May 2007.  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 June 2007, 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 effective May 14, 2007, the appellant earned $12,621.00 annually in wages.  Effective December 1, 2007, she earned $12,621.00 in wages.  Effective June 1, 2008, she earned $12,550.00 in wages.  Effective December 1, 2008, she earned $12,550.00 in wages.  The appellant did not identify any medical expenses incurred during these periods.
Further, she did not note what her income was following 2009.  The next evidence of any income is beginning in February 2014, the appellant received $15,949.00 annually in Social Security Administration (SSA) benefits.  $209.80 in Medicare premiums were withheld in 2014.  In 2015, the appellant received $13,080.20 in SSA benefits and $1,258.80 for Medicare premiums was withheld.  In 2016, the appellant received $13,838.80 in SSA benefits and $1,258.80 for Medicare premiums was withheld.  Finally, in 2017, the appellant received $15,757.00 in SSA benefits and $2,232.00 in Medicare premiums was withheld.  The appellant did not claim any further medical expenses during these periods.
The MAPRs for a surviving spouse without a dependent child were as follows (for the years income information was provided): $7,239 (2007), $7,498 (2008), $7,933 (2009), $8,585 (2014), $8,630 (2015), $8,630 (2016), and $8,830 (2017).
For 2007, the appellant’s income was $12,621 and it exceeded the MAPR of $7,239 for that year.  The appellant did not submit any medical expenses for that year.  For 2008, the appellant’s income was $12,621 and it exceeded the MAPR of $7,498 for that year.  The appellant did not submit any medical expenses for that year.  For 2009, the appellant’s income was $12,550 and it exceeded the MAPR of $7,933 for that year.  The appellant did not submit any medical expenses for that year.
In 2014, the record reflects that the appellant paid a Medicare premium of $209.80.  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 2014, 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).  Effective since December 1, 2013, the MAPR for a surviving spouse without a dependent child has been $8,485.  Five percent of this amount is $424.00 for purposes of medical expenses. Because the appellant’s medical expenses of $209.80 for calendar year 2014 did not exceed five percent of the MAPR for that year, it cannot be excluded from her total income.  Thus, her income of $15,949.00 exceeded the MAPR for 2014.
In 2015, the record reflects that the appellant paid a Medicare premium of $1,258.80.  No other medical expenses were reported by the appellant.  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 $1,258.80 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 ($1,258.80) from $13,080.20, the remaining countable income of $11,822.00 still far exceeds the MAPR for 2015. 
In 2016, the record reflects that the appellant paid a Medicare premium of $1,258.80.  No other medical expenses were reported by the appellant.  Effective since December 1, 2015, 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 $1,258.80 for calendar year 2016 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 ($1,258.80) from $13,838.20, the remaining countable income of $12,580.00 still far exceeds the MAPR for 2016.
In 2017, the record reflects that the appellant paid a Medicare premium of $2,232.00.  No other medical expenses were reported by the appellant.  Effective since December 1, 2016, the MAPR for a surviving spouse without a dependent child has been $8,656.00.  Five percent of this amount is $432.00 for purposes of medical expenses.  Because the appellant’s medical expenses of $2,232.00 for calendar year 2017 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 ($2,232.00) from $15,757, the remaining countable income of $13,525.00 still far exceeds the MAPR for 2017.
In summary, after reviewing all pertinent evidence, the Board finds that the appellant’s countable income exceeded applicable MAPR rate for calendar years 2007, 2008, 2009, 2014, 2015, 2016, and 2017.  Thus, it is a bar to receipt of death pension benefits.
II.  Service Connection for the Cause of the Veteran’s Death
The appellant asserts that the Veteran’s fatal blood cancer is related to his exposure to herbicides, such that service connection for the cause of the Veteran’s death is warranted.
Dependency and indemnity compensation (DIC) may be awarded to a veteran’s spouse, children, or parents for death resulting from a service-connected or compensable disability.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.  In order for service connection for the cause of the Veteran’s death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it.  Id.  A service-connected disorder is one that was incurred in or aggravated by active service. 
Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death.  38 C.F.R. § 3.312(a).  Service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. § 3.312(b).
Generally, minor service-connected disabilities, particularly those of a static nature or not affecting a major organ, would not be held to have contributed to death primarily due to an unrelated disability.  38 C.F.R. § 3.312(c)(2).  Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health, rendering the veteran materially less capable of resisting the effects of the other diseases primarily causing death.  Where the service-connected condition affects the vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed.  38 C.F.R. § 3.312(c)(3).
In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death.  38 C.F.R. § 3.312(c).  See Harvey v. Brown, 6 Vet. App. 390, 393 (1994).  Therefore, service connection for the cause of a Veteran’s death may be demonstrated by showing that the Veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. 
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service.  38 U.S.C. § 1110.  In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Certain chronic diseases, such as a malignant tumor, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a).
For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id. 
However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as “a substitute way of showing in-service incurrence and medical nexus.”).
Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Secondary service connection may be established by a showing that a nonservice-connected disability was caused or aggravated (chronically worsened) by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era.  See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).
If a veteran was exposed to a herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 
Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied. 
The Veteran was born in September 1950.  He died in May 2007.  His death certificate lists his immediate cause of death as respiratory failure, and lists the underlying cause of death as blood cancer.  During his lifetime, service connection was established only for type II diabetes mellitus, rated as 20 percent disabling and erectile dysfunction, rated noncompensable.
In February 2012, a VA medical opinion was rendered.  The examiner noted that the Veteran’s death certificate listed the cause of death as “blood cancer.”  The examiner explained that in 40 years of practicing medicine, he has never seen “blood cancer” cited as a diagnosis.  In any event, the examiner explained that it was clear from the record that the Veteran died due to myelogenous leukemia, which evolved from myeloproliferative myelodysplastic disorder.  He explained that this was clear from a bone marrow test that was conducted just four days before death.  The examiner explained that the medical records confirmed that the Veteran had myelogenous leukemia, not any B-cell leukemia.  The Board finds the opinion of the February 2012 examiner, which is supported by a thorough explanation, is entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  Notably, the medical records associated with the claims file do not include any references to B-cell leukemia, but do document myelogenous leukemia.
To the extent that the appellant asserts the Veteran died due to B-cell leukemia, although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the matter of what cancer caused the Veteran’s death is a complex medical matter that falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer).  As the appellant is not shown to be other than a layperson without appropriate training and expertise, she is not competent to render an opinion as to the cause of the Veteran’s death.  Id.  Therefore, in connection with this claim, the appellant’s assertion that the Veteran died from B-cell leukemia is of no probative value. 
Thus, the weight of the competent and probative medical evidence reflects that the Veteran died due to myelogenous leukemia, not any B-cell leukemia.  Myelogenous leukemia is not a disability for which service connection is presumptively allowed for herbicide-exposed veterans.  See 38 C.F.R. § 3.309.   Thus, the provisions related to presumptive service connection are of no avail to the appellant in this case.  However, such does not prevent the appellant from prevailing on a direct basis.  Cf. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
The Board further finds that the record does not otherwise provide a basis to award service connection for cause of the Veteran’s death.  The service medical records are completely negative for findings or diagnoses of any blood cancer, and there is no medical evidence that the fatal myelogenous leukemia was manifested (to any degree) during the first post-service year.  Hence, the legal authority governing presumptive service connection for malignant tumor as a chronic disease is of no avail to the appellant.  See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  In fact, the first objective evidence of blood cancer is reflected in 2006 clinical records-many decades after the Veteran’s service.  These records reflect that myelogenous leukemia had its onset in 2006.
Significantly, moreover, the record includes no competent evidence or opinion even suggesting that there exists a medical relationship between myelogenous leukemia and Veteran’s military service, and neither the appellant nor her representative has presented, identified or alluded to the existence of any such evidence.
In August 2018, a VA examiner opined that it was less likely than not that either the cause of the Veteran’s death was related to active service, to include presumed exposure to herbicides.  As rationale, the examiner explained that neither myelodysplastic syndrome or acute myeloid leukemia have been associated with herbicide exposure.  The examiner explained that the National Academies of Science have not identified any study or evidence to support a finding that either disability is related to one’s exposure to herbicides.  The examiner also noted that neither disability is listed as presumptively related to herbicide-exposed veterans, as discussed above.
Finally, an August 2007 VA examiner opined that the Veteran’s cause of death was less likely than not that the Veteran’s death was related to his service-connected diabetes mellitus.  As rationale, the examiner explained that the Veteran’s diabetes was only present five years prior to his death.  Further, he explained that the Veteran’s diabetes was well controlled.  The examiner noted that if diabetes impacted the Veteran’s death, there would be evidence of severe hyperglycemia, hypoglycemia, or ketoacidosis.  As the Veteran’s diabetes was well-controlled, the examiner concluded that it was less likely than not that diabetes contributed to the Veteran’s death.
The Board finds the opinions of the August 2007 and August 2018 VA examiners probative, as they are both supported by thorough rationales.  See Nieves-Rodriguez, supra; Stefl, supra.
While the appellant has argued that the Veteran’s death was related to his exposure to herbicides or his service-connected diabetes, such are complex medical matters within the province of trained medical professionals.  Although lay persons are competent to provide opinions on some medical issues (see Kahana, supra), the specific matter of the etiology of disability resulting in the Veteran’s death is a complex medical matter that falls outside the realm of common knowledge of a lay person.  Here, neither the appellant nor her representative is shown to have the medical training and expertise to competently render a probative opinion as the etiology of the Veteran’s death.  As such, the lay assertions in this regard have no probative value.
On this record, the Board must conclude that the cause of the Veteran’s death, identified as myelogenous leukemia (or blood cancer), first manifested many years following the Veteran’s separation from service, and the weight of the probative evidence is against a finding that the cause of the Veteran’s death was related to his active service, to include his exposure to herbicides or that a service-connected disability materially contributed to the Veteran’s death.
For all the foregoing reasons, the claim on appeal must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against s the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56.
III.  Service-Connected Burial Benefits
The appellant asserts entitlement to service-connected burial benefits to help recoup the costs of the Veteran’s funeral and burial expenses.
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 June 2007, 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 June 2007.
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)).
Here, the Veteran died in October 2008 and the appellant filed the claim for burial benefits in December 2008.  In a January 2009 decision, the appellant was awarded nonservice-connected burial benefits.  She contends that service-connected burial benefits, a greater benefit, are warranted.  However, as discussed above, the criteria for service connection for the cause of the Veteran’s death have not been met.  As service connection for the cause of the Veteran’s death has not been established,  service-connected burial benefits are not payable.
The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and burial greater than the amount of nonservice-connected burial benefits already awarded, and acknowledges that the Veteran had honorable service.  However, the legal authority pertaining to service-connected 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 service-connected 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 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.