Citation Nr: 18142236 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-42 855 DATE: October 15, 2018 ORDER The claim of entitlement to burial benefits is denied. FINDINGS OF FACT 1. The appellant is the Veteran’s adult sister. 2. In an April 2015 decision, the Veteran’s surviving spouse was awarded the maximum $2,000.00 in service-connected burial benefits. CONCLUSION OF LAW The criteria for payment of burial benefits are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1702. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1982 to August 1984 and from July 1988 to September 1989. He died in April 2015. The appellant is his adult sister. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2015 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania denied the appellant’s claim of entitlement to burial benefits. The appellant filed a notice of disagreement (NOD) in July 2015. The RO issued a statement of the case (SOC) in August 2016 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. The appellant asserts entitlement to burial benefits to recoup expenses related to the Veteran’s funeral and burial. Her application for burial benefits was received in May 2015. 38 C.F.R. § 3.1702 governs the priority of payment of burial benefits. Section (a) governs automatic payments to the Veteran’s surviving spouse upon the death of the Veteran. It provides: On or after July 7, 2014, VA will automatically pay a burial benefit to an eligible surviving spouse when VA is able to determine eligibility based on evidence of record as of the date of the veteran's death. VA may grant additional burial benefits, including the plot or interment allowance, reimbursement for transportation, and the service-connected burial allowance under § 3.1704, to the surviving spouse or any other eligible person in accordance with paragraph (b) of this section and based on a claim described in § 3.1703. Section (b) governs priority of payments for claims received on or after July 7, 2014. 38 C.F.R. § 3.1702(b) states: (1) Except for claims a State, or an agency or political subdivision of a State, files under § 3.1707, Plot or interment allowance for burial in a State veterans cemetery or other cemetery, or § 3.1708, Burial of a veteran whose remains are unclaimed, VA will pay, upon the death of a veteran, the first living person to file of those listed below: (i) His or her surviving spouse; (ii) The survivor of a legal union between the deceased veteran and the survivor that is not covered by paragraph (b)(1)(i) of this section. For purposes of this paragraph, legal union means a formal relationship between the decedent and the survivor that (A) Existed on the date of the veteran’s death, (B) Was recognized under the law of the State in which the couple formalized the relationship, and (C) Was evidenced by the State’s issuance of documentation memorializing the relationship; (iii) His or her children, regardless of age; (iv) His or her parents or the surviving parent; or (v) The executor or administrator of the estate of the deceased veteran. If no executor or administrator has been appointed, VA may pay burial benefits based on a claim filed by a person acting for such estate who will distribute the burial benefits to the person or persons entitled to such distribution under the laws of the veteran's last State of residence. (2) In the case of a veteran whose remains are unclaimed, VA will pay the person or entity that provided burial services and transportation subject to the limitations prescribed in §§ 3.1708 and 3.1709. (3) VA will pay burial benefits to a single representative of the categories in paragraph (b)(1) of this section. VA will not divide applicable burial benefits among claimants; it is the responsibility of the recipient to distribute benefits as may be required. Pursuant to 38 C.F.R. § 3.1702(a), VA automatically paid the Veteran’s surviving spouse the maximum $2,000.00 for service-connected burial benefits. The Board acknowledges the appellant’s contention that the surviving spouse and the Veteran were estranged. See VA Form 9. However, there is no evidence or argument that they were not married at the time of the Veteran’s death. As such, as the Veteran’s surviving spouse was entitled to an automatic payment of the entirety of the service-connected burial benefits. The surviving spouse had a higher priority than the Veteran’s adult sister. See 38 C.F.R. § 3.1702(b). While the appellant incurred costs related to the Veteran’s burial and funeral, 38 C.F.R. § 3.1702(b)(3) provides that VA will only pay burial benefits to a single representative and it is the responsibility of the recipient to distribute benefits as may be required. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s 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). (Continued on the next page) JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel