Citation Nr: 18159955 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-53 591 DATE: December 20, 2018 ORDER The claim of entitlement to nonservice-connected burial benefits, to include a plot or interment allowance, is denied. FINDING OF FACT 1. The Veteran died at a private hospital in June 2015, and was buried later that month. The appellant’s application for burial benefits was received in August 2015. 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 which was ultimately granted. 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 burial benefits, to include a plot or interment allowance, 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 September 1952 to July 1954. He died in June 2015. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2015 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota denied the appellant's claim for nonservice-connected burial benefits, to include a plot or interment allowance. In November 2015, the appellant filed a notice of disagreement (NOD). In September 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 October 2016. In September 2017, the Board remanded this claim for the agency of original jurisdiction (AOJ) to adjudicate the claims for service connection for bilateral hearing loss, tinnitus, and an acquired psychiatric disorder, for accrued benefits purposes. Such claims were adjudicated in an October 2018 rating decision, which the appellant has not disagreed with. As such, the record reflects substantial compliance with the September 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff’d, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that substantial, rather than strict, compliance is sufficient). Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a)(2)(C) and 38 C.F.R. § 20.900(c). Burial Benefits 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 nonservice-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. 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 June 2015 and the appellant filed her claim for burial benefits in August 2015. In her claim, the appellant expressly stated that she was not claiming that the Veteran’s death was related to service. Hence, the Board will consider the claim on appeal as one for nonservice-connected burial benefits. 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. § 3.1600(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. § 3.1703(a). Here, the Board notes that the appellant’s claim for burial benefits was filed within two years of the Veteran’s burial. Hence, for purposes of nonservice-burial benefits, the application was timely. However, the remaining criteria for such benefit simply are not met in this case. The Veteran was not receiving any VA compensation or pension benefits at the time of his death, and the evidence does not reflect that there was an original or reopened claim for either benefit pending at the time of his death which was ultimately granted. Indeed, as discussed above, the claims for service connection that were pending at the time of the Veteran’s death were denied and the appellant did not disagree with any of those denials ails. Additionally, he 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 Veteran died at a private hospital. Regarding a plot or interment allowance, notably, the Veteran was not buried in a national cemetery or other cemetery controlled by the United States. Moreover, the Veteran was not eligible for a burial allowance and he did not die while admitted to a VA facility, as previously explained. Nor was the Veteran discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty (or had a disability at the time of discharge that would have justified a discharge for disability). In other words, a plot or interment allowance would be precluded by other applicable provisions of 38 C.F.R. § 3.1707. Consequently, the Board finds that the criteria for payment of a plot or interment allowance are not met. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and 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 burial benefits, to include a plot or interment allowance, 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