Citation Nr: 18157394 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-14 569 DATE: December 12, 2018 ORDER The claim of entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. In February 1990, the Veteran died at a private hospital and was buried in a private cemetery later that month. 2. The appellant’s application for nonservice-connected burial benefits was received in September 2014. CONCLUSION OF LAW Due to an untimely application, the criteria for payment of nonservice-connected 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 December 1953 to November 1956. He died in February 1990. The appellant is his adult son. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2014 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin denied entitlement to nonservice-connected burial benefits. The appellant filed a notice of disagreement (NOD) in October 2014. The RO issued a statement of the case (SOC) in March 2016 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in April 2014. The appellant asserts entitlement to burial benefits to help recoup the costs of the Veteran’s 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 September 2014, 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 September 2014. 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. § 3.1702(b)(3). Here, the Veteran died in February 1990. The appellant filed an application for nonservice-connected burial benefits in September 2014. 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. § 3.1705. 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. §§ 3.1705(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. § 3.1706(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. § 3.1703(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 Board notes that the appellant’s claim for burial benefits was not filed within two years of the Veteran’s death, as he died in February 1990, was buried later that month and the appellant’s claim was not filed until September 2014—nearly 14 years following the burial of the Veteran. As such, for purposes of nonservice-connected burial benefits, the claim was not timely filed. (Continued on the next page)   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 nonservice-connected burial benefits, 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