Citation Nr: 18140411 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-35 496A DATE: October 3, 2018 ORDER The claim of entitlement to reimbursement of the expenses incurred in transporting the Veteran’s remains to a national cemetery is denied. FINDINGS OF FACT 1. The Veteran died in May 2012 and was buried later that month at South Florida National Cemetery. 2. There is no evidence or argument that the Veteran’s death was related to service. 3. At the time of his death, the Veteran was not in receipt of VA compensation. 4. The Veteran was never in receipt of military retirement pay. CONCLUSION OF LAW The criteria entitlement to reimbursement of the expenses incurred in transporting the Veteran’s remains to a national cemetery 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 CONCLUSION The Veteran served on active duty from December 1982 to January 1987. He died in May 2012. The appellant is the Veteran’s adult sister. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania denied the appellant’s claim for burial benefits. In April 2014, the appellant filed a notice of disagreement (NOD) as to the denial of reimbursement of expenses incurred in transporting the Veteran’s remains to a National cemetery. In August 2015, a statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in November 2015. 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 2012, 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 2012. Here, the appellant argues that she should be reimbursed for the expenses incurred in transporting the Veteran’s remains to a national cemetery. It is uncontroverted that the Veteran was buried at South Florida National Cemetery. 38 C.F.R. § 3.1600(g) provides: Where a veteran dies as the result of a service-connected disability, or at the time of death was in receipt of disability compensation (or but for the receipt of military retired pay or nonservice-connected disability pension would have been entitled to disability compensation at time of death), there is payable, in addition to the burial allowance (either the amount specified in 38 U.S.C. § 2302 or the amount specified in 38 U.S.C. § 2307 if the cause of death was service connected), an additional amount for payment of the cost of transporting the body to the national cemetery for burial. This amount may not exceed the cost of transporting the body from the veteran’s place of death to the national cemetery nearest the veteran’s last place of residence in which burial space is available. The amounts payable under this paragraph are subject to the limitations set forth in §§ 3.1604 and 3.1606. Here, the appellant has not argued that the Veteran’s death was somehow related to service. See June 2012 Application for Burial Benefits. Likewise, the Veteran was not in receipt of VA compensation at the time of his death, nor was he in receipt of military retirement pay. There is no argument that the specific criteria for reimbursement of transportation expenses have been met. The Board is sympathetic to the fact that the appellant incurred costs related to transporting the Veteran’s remains to a national cemetery. However, the legal authority pertaining to reimbursement of such expenses 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