Citation Nr: 18144400 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 14-24 156 DATE: October 25, 2018 ORDER Entitlement to burial allowance is denied. FINDING OF FACT 1. The Veteran died at a private hospital in January 2012, and was buried later that month. The appellant’s application for burial benefits was received in March 2012. 2. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 3. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran’s death. 4. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 5. The Veteran’s body was not unclaimed, and the appellant paid expenses related to the Veteran’s burial. 6. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for the purpose of examination, treatment, or care. CONCLUSION OF LAW The criteria for payment of a burial allowance 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 1961 to April 1966. He died in January 2012. The appellant is his surviving spouse. In April 2017, the appellant testified before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In January 2018, the Board remanded this matter for further development. The agency of original jurisdiction (AOJ) substantially complied with the January 2018 remand directives. First, the AOJ provided the appellant a letter detailing how to substantiate a claim for burial allowance in a letter dated July 2018. Second, the AOJ determined, after a search of available records, that all available documents were associated with the Veteran’s claims file. See June 2018 AOJ Correspondence. As such, the Board concludes that substantial compliance with the January 2018 remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a final preliminary matter, in a July 2018 submission, the appellant explained that she would like to file a claim for “Camp Lejeune Benefits.” To date, this issue has not been developed or adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The appellant asserts that she is entitled to burial benefits to recoup the costs of the Veteran’s funeral and burial 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 March 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 March 2012. It is noted, at the outset, that claims for a burial allowance may be executed only by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses.” 38 C.F.R. § 3.1601(a)(1) (now at 38 C.F.R. § 3.1702(b)(3)). Here, in her March 2012 application for burial benefits, the appellant expressly stated that she was not claiming that the Veteran’s death was related to service. Further, the Board notes that service connection for the cause of the Veteran’s death was denied in a July 2014 rating decision. The appellant did not disagree with the decision and, as such, the matter of service connection for the cause of the Veteran’s death is not before the Board. As such, the Board will only consider whether nonservice-connected burial benefits are warranted. Where a veteran’s death is not service-connected, a burial allowance to cover the burial and funeral expenses, as well as the expense of transporting the body to the place of burial may be payable, but only under certain circumstances. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1600(b) (now 38 C.F.R. § 3.1705). Specifically, if the cause of a veteran’s death is not service-connected, entitlement is based upon the following conditions: at the time of death, the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or, the veteran had an original claim for either benefit pending at the time of her death for which there was evidence available on the date of death to support the award for compensation or pension or, in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, the deceased was a veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and there is no next of kin and the veteran’s estate funds are insufficient to cover expenses. See 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1600(b) (now 38 C.F.R. §§ 3.1705(b), (e); 3.1708(b),(c)). Alternatively, a burial allowance may be paid if a veteran died from nonservice-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. See 38 U.S.C. § 2303(a); 38 C.F.R. §§ 3.1600(c), 3.1605 (now 38 C.F.R. § 3.1706(b), (d)). 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 Board notes that the appellant’s claim for burial benefits was filed within two years of the Veteran’s burial. Thus, it was timely filed. However, the evidence does not establish that any of the criteria for nonservice-connected burial benefits have been met. The Veteran was not in receipt of VA compensation at the time of his death. Additionally, the Veteran is not shown to have been discharged or released from active service for a disability incurred or aggravated in the line of duty nor was his body held by a State. Finally, it is uncontroverted that the decedent died at a private hospital. The Board acknowledges the appellant’s argument that the Veteran may have had a claim for service connection pending at the time of his death. The record shows that VA acknowledged the Veteran’s claim for service connection in a letter dated April 11, 2000. The Veteran, in kind, responded to that letter on April 17, 2000, by explaining that he was seeking service connection for a left arm scar, that purportedly was the result of an in-service burn. A May 15, 2000, letter, from VA explained that the claim was being denied. There is no evidence or argument that the Veteran disagreed with that denial such that it has remained pending. As such, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1104. Simply, there is no evidence that the May 2000 decision was appealed such that it remained pending at the time of the Veteran’s death. As such, as a claim was not pending at the time of the Veteran’s death, the criteria for nonservice-connected burial benefits have not been met. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and burial. 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). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel