PREC 9-2003    Scope of Protection provided by 38 U.S.C. § 2305 in Claims for Burial Benefits under 38 U.S.C. Chapter 23     Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-2003, VAOPGCPREC 9-2003,2003

ISSUE PRESENTED:

What is the scope of the protection provided by 38 U.S.C. § 2305 in claims for burial benefits under 38 U.S.C. chapter 23?

HELD:  Section 2305 of title 38, United States Code, preserves rights individuals had under laws in effect on December 31, 1957, based on their status as members of particular units or organizations that fell within the scope of the laws defining classes of individuals potentially eligible for burial benefits under chapter 23 of title 38.  Veterans with wartime service prior to January 1, 1958, are not exempted by section 2305 from the amendments to eligibility criteria for nonservice-connected burial and funeral allowance currently codified in

38 U.S.C. § 2302(a) made by the Omnibus Budget Reconciliation Act of 1981,

Pub. L. No. 97-35, which eliminated wartime service as a basis for eligibility.  Burial benefits provided by operation of 38 U.S.C. § 2305 are to be paid based on the rates in effect on the date of the veteran’s death.