Citation Nr: 18158070 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-15 781A DATE: December 14, 2018 ORDER The claim of entitlement to payment of burial benefits for the Veteran's surviving spouse is denied. FINDING OF FACT The Veteran’s surviving spouse was not a veteran. CONCLUSION OF LAW The criteria for basic eligibility for payment of burial benefits for the Veteran’s surviving spouse are not met. 38 U.S.C. §§ 101, 2302, 2303; 38 C.F.R. §§ 3.1600-3.1610; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1942 to November 1945. The Veteran died in June 2007. The appellant was the Veteran’s son-in-law. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2015 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania denied entitlement to burial benefits for the Veteran’s deceased surviving spouse. The appellant filed a notice of disagreement (NOD) in November 2015. 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 2016. A supplemental SOC (SSOC) was issued in March 2018. The appellant asserts entitlement to burial benefits based on the death of his mother-in-law, the Veteran’s surviving spouse. 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 February 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 February 2015.   The applicable regulation states that: For purposes of providing burial benefits under subpart B of this part, the term “veteran” means the same as provided in 38 U.S.C. 101(2). A veteran must be deceased, and burial benefits for that veteran must be authorized by a specific provision of law. F or purposes of the nonservice-connected burial allowance under 38 U.S.C. 2302, the term “veteran” includes a person who died during a period deemed to be active military, naval, or air service under §§ 3.6(b)(7), 3.7(m) and 3.7(o). 38 C.F.R. § 3.1710. Further, 38 U.S.C. § 101(2) states “[t]he term ‘veteran’ means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” There is no evidence or argument that the Veteran’s surviving spouse, for whom burial benefits are sought, served in the military, naval or air service. As the Veteran’s surviving spouse was not a veteran, in this case, the criteria for basic eligibility for burial benefits simply are not met. See 38 C.F.R. § 3.1710. The Board is sympathetic to the fact that the appellant incurred costs related to the surviving spouse’s 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 for the death of the Veteran’s surviving spouse, 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