Citation Nr: 1822210 Decision Date: 04/13/18 Archive Date: 04/25/18 DOCKET NO. 14-32 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to non-service-connected burial benefits. REPRESENTATION Appellant represented by: Joanne Healy ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1952 to June 1955. He died in January 2011 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 decision from the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. At the time of his death, the Veteran was not in receipt of compensation or pension benefits and no application for benefits was pending. 2. The Veteran was cremated in February 2011, and the appellant's claim for reimbursement of burial and funeral expenses was received by VA in June 2013. CONCLUSION OF LAW The criteria for the payment of a non-service-connected funeral or burial allowance have not been met. 38 U.S.C. §§ 2302, 2304 (2013), 38 C.F.R. §§ 3.1600-1610 (prior to July 7, 2014); 38 C.F.R. §§ 3.1700-1713 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks reimbursement of cremation and funeral expenses incurred after the death of the Veteran. The Veteran died in January 2011 and his funeral and cremation occurred in February 2011. See Application for Burial Benefits. At the time of his death, the Veteran was not in receipt of VA compensation or pension benefits, nor was a claim for benefits pending. The appellant's claim for reimbursement of burial and funeral expenses was received by VA in June 2013, more than two years after the Veteran's cremation. The appellant reports that she was unaware that she may be entitled to a burial allowance until she was informed of the existence of such benefits in April 2013. See May 2013 Correspondence; see also April 2014 Notice of Disagreement. She seeks burial benefits on an equitable basis. The appellant does not contend that the Veteran died as the result of a service-connected disability. See Application for Burial Benefits (noting that the Veteran's death was not due service). Nor does she contend that at the time of his death the Veteran was admitted to a VA facility or a non-VA facility at VA expense. Accordingly, only eligibility for benefits on a non-service-connected basis under 38 U.S.C. § 2302 will be considered. The Board notes that the appellant's claim for burial benefits has been pending since June 2013, prior to the effective date of a change in the applicable regulations on July 7, 2014. See 79 Fed. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). When a regulation changes during the pendency of a claim, the Board must consider both the new and old provisions and apply the most favorable criteria. In this case, there have been no substantive changes in the regulations that are applicable here. Both versions are equally favorable. The Board will cite principally to the regulations in effect at the time the appellant's claim was received in 2013. The Board notes that there has been no change to the applicable governing statutes (38 U.S.C. §§ 2302 and 2304) during the pendency of the appellant's claim. Where a Veteran's death is not service-connected, an allowance may be payable under certain circumstances to cover the burial and funeral expenses of a deceased veteran who, at the time of death, was in receipt of compensation or pension benefits or had a pending claim for benefits. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1600(b) (2013) (now 38 C.F.R. § 3.1705). Applications for reimbursement of non-service-connected burial and funeral expenses must be received by VA within two years after the burial or cremation of the veteran's body. 38 U.S.C. § 2304; 38 C.F.R. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)). The Board finds that burial benefits are not warranted in this case. The criteria for payment of non-service-connected burial benefits under 38 U.S.C. § 2302 and 38 C.F.R. § 3.1600(b) (now 38 C.F.R. § 3.1705) have not been met, and the appellant's application for burial benefits was not received within two years of the Veteran's cremation. It is not shown that the Veteran was receiving VA compensation or pension benefits at the time of his death, and the appellant indicated on her application for reimbursement that the Veteran's death was not due to service. The record also does not show that the Veteran had ever filed a compensation or pension claim. Moreover, as noted above, the Veteran was cremated in February 2011, but the appellant's application for reimbursement of burial expenses was not received by VA until June 2013, more than two years later. For these reasons, non-service-connected burial benefits are not warranted. The Board notes that the revised regulations allow for an automatic payment to an eligible surviving spouse for claims pending on or after July 7, 2014 when VA is able to determine eligibility based on evidence of record as of the date of the veteran's death. 38 C.F.R. § 3.1702(a) (2014). However, this provision is not applicable in this case because there was no information or evidence available to VA regarding the Veteran or his death until the appellant sought burial benefits in June 2013. Without any information or evidence regarding the Veteran's death, VA could take no action. Additionally, as noted above, the appellant is not otherwise eligible for such benefits. The appellant contends, essentially, that non-service-connected burial benefits are warranted on an equitable basis. While the Board is sympathetic to her claim, entitlement to burial benefits must be established based upon specific requirements that have not been met in this case. The Board has no authority to grant claims on an equitable basis in this matter. See 38 U.S.C. § 7104(c). The Board acknowledges and appreciates the Veteran's service in the United States Navy. Unfortunately, there is no legal entitlement to a burial or funeral allowance, and the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to non service-connected burial benefits is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs