Citation Nr: 1800112	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-31 719	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to nonservice-connected burial benefits.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran had active service in the U.S. Navy from September 1943 to December 1945.  He passed away in August 2005.  The appellant has been identified as the legal representative of the Veteran's estate.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the appellant's claim for VA burial benefits.  The matter has otherwise been adjudicated by the RO in Columbia, South Carolina.

The appellant testified before the undersigned Veterans Law Judge at a Board hearing in August 2015.  A copy of the transcript is of record.


FINDINGS OF FACT

1.  The Veteran passed away and was interned in August 2005.

2.  The application for burial benefits was received in April 2013.


CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected burial benefits have not been met.  38 U.S.C. §§ 2302, 2304 (2012); 38 C.F.R. §§ 3.1703, 3.1705 (2017).



	(CONTINUED ON NEXT PAGE)

REASONS AND BASES FOR FINDINGS AND CONCLUSION

A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a Veteran and the expense of transporting the body to the place of burial.  38 U.S.C. § 2302; 38 C.F.R. § 3.1700.

If a Veteran's death is not service-connected, as in this case, entitlement is based upon the following conditions: (1) at the time of death, the Veteran was in receipt of pension or compensation, or would have been but for the receipt of retired pay; 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.  38 U.S.C. § 2302(a); 38 C.F.R. §§ 3.1700(a)(2), 3.1705.  Alternatively, burial benefits may be paid if a person dies from nonservice-connected causes while hospitalized by VA (in a VA or non-VA facility).  38 C.F.R. §§ 3.1700(a)(3), 3.1706.  

An application for nonservice-connected burial benefits must be filed within two years after the burial of the veteran's body.  38 U.S.C.A. § 2304; 38 C.F.R. § 3.1703(a).

The Veteran in this case passed away in August 2005.  The current claim for burial benefits was completed by the appellant in March 2013 and received in April 2013.  Unfortunately, this claim was filed more than two years after the Veteran's burial and is therefore not timely.

Notably, the appellant attached a copy of the funeral expenses paid for the Veteran to her claim.  This expense report notes the date of death as August 2005 but lists the funeral date as March 20, 2013.  However, the burial benefits claim form submitted by the appellant and the death certificate both indicate Veteran was buried in August 2005.  The death certificate references the same funeral home company as the expense report.  Moreover, in correspondence dated January 2014, the appellant wrote that time was a factor in seeing that the Veteran was buried with dignity.  Thus, the overall weight of the evidence indicates that the Veteran was indeed buried in 2005 and not 2013.

Finally, the appellant filed a claim for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits in March 2006.  The Board has reviewed this submission to see if it could be construed as a claim for burial benefits.  However, there is nothing contained within that submission which addresses the Veteran's burial, the expenses incurred for burial, or a request for reimbursement for any such expenses.  Therefore, it cannot be considered a claim for the purposes of this appeal.

The Board acknowledges the Veteran's honorable military service and is sympathetic to the loss his family has endured.  Unfortunately, the payment of burial benefits is based on specific guidelines which have not been met in this case.  The Board is bound by the law and is without authority to grant benefits on the basis of equity.  38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994).  Accordingly, the claim must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to nonservice-connected burial benefits is denied.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs