Citation Nr: 18145929 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-40 839A DATE: October 30, 2018 ORDER The claim of entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran died in March 2012 and was buried later that month. 2. The appellant’s application for burial benefits was received in August 2015. CONCLUSION OF LAW The criteria for payment of burial benefits are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1953 to February 1954. He died in March 2012. The appellant is his adult daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2015 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the claim for nonservice-connected burial benefits. In April 2016, the appellant filed a notice of disagreement (NOD). In July 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 August 2016. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107 (a)(2) 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 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 August 2015, i.e., after 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 new regulations, in effect at the time the appellant’s claim was filed in August 2015. 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. § 3.1703(a). This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1700(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. § 3.1703(a). Here, the claim appealed to the Board was for nonservice-connected 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 buried in March 2012, and the appellant’s application for burial benefits was received in August 2015—over three years later. As such, the application was untimely, and the claim for nonservice-connected burial benefits must be denied on this basis. 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, the appellant’s application for burial benefits was untimely, the claim for such 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