Citation Nr: 18144109 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 17-50 144A DATE: October 23, 2018 ORDER The claim of entitlement to burial benefits is denied. FINDINGS OF FACT 1. The appellant’s claim for burial benefits was received in October 2016. 2. The appellant is the Veteran’s adult son. 3. In a February 2017 decision, the Veteran’s surviving spouse was awarded $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 1954 to July 1957, from October 1957 to September 1960 and from December 1960 to December 1966. He died in October 2016. The appellant is the Veteran’s adult son. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2017 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania denied entitlement to burial benefits. The appellant filed a notice of disagreement (NOD) in April 2017. The RO issued a statement of the case (SOC) in April 2017, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in October 2017. The appellant asserts that he incurred costs related to the Veteran’s funeral and is entitled to burial benefits to recoup those costs. 38 C.F.R. § 3.1702 governs the priority of payment of burial benefits. Section (b) governs priority of payments for claims received on or after July 7, 2014. As the appellant's claim for burial benefits was received in October 2016, only those provisions will be considered. 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. In this instance, in a February 2017 decision, the Veteran’s surviving spouse was awarded $2,000.00 in service-connected burial benefits. As noted above, under 38 C.F.R. § 3.1702(b)(1)(i), the Veteran’s surviving spouse has priority in the award of burial benefits. It is further noted that, under 38 C.F.R. § 3.1702(b)(3), VA will only pay burial benefits to a single claimant and will not divide applicable burial benefits among claimants. As VA has already awarded burial benefits to the Veteran’s surviving spouse and she had the highest priority for being awarded burial benefits, the appellant cannot be awarded any additional burial benefits. 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 and the appellant’s claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel