Citation Nr: 18160822 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-20 953 DATE: December 27, 2018 ORDER The claim of entitlement to nonservice-connected burial benefits greater than $300.00 is denied. FINDINGS OF FACT 1. The Veteran died in July 2014 and was buried at a VA national cemetery. 2. The appellant was awarded $300.00 in nonservice-connected burial benefits. CONCLUSION OF LAW The criteria for nonservice-connected burial benefits greater than $300.00 are not met. 38 U.S.C. §§ 101, 2302, 2303, 2402, 5107; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1945 to October 1946. He died in July 2014. The appellant is his adult daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2014 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania granted $300.00 in nonservice-connected burial benefits. In July 2015, the appellant filed a notice of disagreement (NOD) as to the amount awarded in August 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 2016. The appellant argues that she is entitled to nonservice-connected burial benefits greater than $300.00. 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 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 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 affective date rules). However, the provisions potentially applicable under the facts of this case have undergone no substantive changes. Both versions are equally favorable. Therefore, the Board will principally cite the new regulations, in effect at the time the appellant's claim was filed in August 2014. A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C. § 2302; 38 C.F.R. § 3.1600; 38 C.F.R. §§ 3.1704-3.1706. If a veteran’s death is not service connected, a sum, not exceeding $300.00 may be made paid toward funeral and burial expenses of the deceased veteran and the expense of preparing the body and transporting it to the place of burial, subject to certain specified conditions. 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1705(a), 3.1706(a). Also, if the eligible veteran was not buried in a national cemetery, an additional $700.00 is payable for a plot or internment allowance. 38 U.S.C. § 2303(b); 38 C.F.R. § 3.1600(f); 38 C.F.R. § 3.1707. Section 3.1707, in pertinent part, provides that, unless VA has evidence on the date it receives notice of the Veteran’s death that the expenses incurred were less, VA will pay the maximum plot or interment allowance specified in 38 U.S.C. § 2303(b)(2) to a claimant who incurred plot or interment expenses relating to the purchase of a burial plot for a deceased veteran if the veteran is buried in a cemetery other than a cemetery described in paragraphs (b)(1) and (b)(3) of this section and the veteran was eligible for a burial allowance under § 3.1705, burial allowance based on nonservice-connected death. 38 U.S.C. § 2303(b)(2) currently allows for payment of a sum not exceeding $700.00 as a plot or interment allowance. Here, the appellant was already awarded $300.00 in nonservice-connected burial benefits. This is maximum amount allowable where a veteran’s death is not related to service. See 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1600(b), (c), 3.1605(a); 38 C.F.R. §§ 3.1705(a), 3.1706(a). Moreover, the appellant, in her claim for burial benefits, did not assert that service-connected burial benefits were warranted. Given that service connection for the cause of the Veteran’s death has not been established, and the appellant has not asserted that service connection for the cause of the Veteran’s death is warranted, there is no basis for an award greater than $300.00 for nonservice-connected burial benefits. Moreover, an award of a plot or interment allowance is not warranted as the Veteran was cremated, not buried. Because he was buried in a VA national cemetery, a plot or interment allowance is not allowable as a matter of law. 38 C.F.R. § 3.1707(d). The Board acknowledges the appellant’s argument that she incurred costs greater that the amounts she was awarded. However, as explained above, the criteria for an award greater than $300.00 for nonservice-connected burial benefits simply are not met, despite the fact that the appellant may have incurred costs in excess of that amount. The legal authority pertaining to the amount of nonservice-connected 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 any additional amounts than those already awarded, the appellant’s claim must be denied as a 456085244matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel