Citation Nr: 18142290 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-48 540 DATE: October 15, 2018 ORDER The claim of entitlement to burial benefits is denied. FINDINGS OF FACT 1. The Veteran died in July 2011, and was cremated in August 2011. 2. The appellant’s application for burial benefits was received on September 9, 2013. CONCLUSION OF LAW The criteria for payment of burial benefits 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 September 1945 to October 1946. He died in July 2011. The appellant is his adult daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2014 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania denied the appellant’s claim for burial benefits. In May 2014, the appellant filed a notice of disagreement (NOD). In August 2016, 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 September 2016. Also, this appeal has been advanced on the Board’s docket, pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900(c). The appellant asserts her entitlement to burial benefits to help recoup the costs of the Veteran’s funeral and cremation expenses. 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 September 2013, 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 September 2013. 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. § 3.1601(a) (now 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. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)). Here, the appellant has expressly stated that she is not claiming that the Veteran’s death was related to service. See September 2013 Application for Burial Benefits. Moreover, it is uncontroverted that the Veteran did not die while hospitalized by VA and he was not buried in a national cemetery. The Veteran was cremated in August 2011, and the appellant’s application for burial benefits was received on September 9, 2013—more than two years thereafter. As such, the application was untimely, and the claim for burial benefits must be denied. The Board acknowledges the appellant’s argument that she completed an application for burial benefits shortly following the Veteran’s death and provided the application to an employee of the private funeral home where the Veteran’s funeral was held. See September 2016 VA Form 9. While the Board does not question the appellant’s veracity, the mere act of giving a completed form to an employee of a private company is not sufficient to find that the appellant timely filed a claim with VA. Indeed, the regulations are clear that a claim must be filed with VA in order to begin the claims process. See 38 C.F.R. § 3.1601(a). As a claim was not timely filed, the appellant’s argument is unavailing and does not provide a basis for relief. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and cremation. 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