Citation Nr: 18139866 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-32 229 DATE: October 1, 2018 ORDER The claim of entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran was buried on January [redacted], 2013. 2. The appellant’s application for nonservice-connected burial benefits was received on February 26, 2015. CONCLUSION OF LAW As the application for nonservice-connected benefits was untimely, the criteria for payment of such benefits are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1940 to May 1961. He died in January 2013. The appellant is the Veteran’s adult daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2015 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin denied entitlement to nonservice-connected burial benefits. The appellant filed a notice of disagreement (NOD) in April 2015. The RO issued a statement of the case (SOC) in July 2015, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in September 2015. The appellant asserts her entitlement to burial benefits to recoup expenses related to the Veteran’s funeral and burial. 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 February 2015, 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 February 2015. An application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the veteran’s body. 38 U.S.C. § 2304; 38 C.F.R. § 3.1703(a). This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1600(f). 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). Here, it is uncontroverted that the Veteran was buried on January [redacted], 2013. The appellant’s application for nonservice-connected burial benefits was received on February 26, 2015. As the appellant’s application for nonservice-connected burial benefits was not received within two years of the Veteran’s burial, it was not timely and, as such, the claim must be denied. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and burial, 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). ( JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel