Citation Nr: 1828124 Decision Date: 05/09/18 Archive Date: 05/18/18 DOCKET NO. 15-02 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to nonservice-connected burial benefits in excess of $300.00 and a plot or interment allowance in excess of $195.00. ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. He died in September 2013. The appellant is the Veteran's adult daughter. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2014 decision in which the RO in St. Louis, Missouri awarded $300.00 for nonservice-connected burial costs and $195.00 for cemetery/plot costs. In July 2014, the appellant filed a notice of disagreement (NOD) as to the amounts awarded. In November 2014, 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 January 2015. A supplemental SOC (SSOC) was issued in March 2015. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. All such records have been reviewed. FINDINGS OF FACT 1. The Veteran died September 2013 and was cremated. 2. The appellant was awarded $300.00 of nonservice-connected burial benefits. 3. The appellant was awarded $195.00 for a plot/interment allowance. CONCLUSION OF LAW The criteria for nonservice-connected burial benefits in excess of $300.00 or a plot or interment allowance in excess of $195.00 are not met. 38 U.S.C. §§ 101, 2302, 2303, 2402, 5107 (2012); 38 C.F.R. §§ 3.1600-3.1610 (as in effect prior to July 7, 2014); 38 C.F.R. §§ 3.1700-3.1713 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). As will be explained below, the claim for nonservice-connected burial benefits in excess of $300.00 and a plot/interment allowance in excess of $195.00 lacks legal merit. As the law, and not the facts, is dispositive of the appellant's claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2014); see also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter); 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). II. Analysis The appellant argues that she is entitled to nonservice-connected burial benefits in excess of $300.00 and a plot/interment allowance in excess of $195.00. 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 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 2013, i.e., prior to 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 old regulations, in effect at the time the appellant's claim was filed in September 2013. 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 (2012); 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. §§ 3.1600(b), (c), 3.1605(a); 38 C.F.R. §§ 3.1705(a), 3.1706(a). Also, if the eligible veteran was not buried in a national cemetery, an additional $300.00 is payable for a plot or internment allowance. 38 U.S.C. § 2303(b) (2012); 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 non-service-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 for 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, there is no argument or evidence that the Veteran's death was somehow related to service and, as such, there is no basis for an award in excess of $300.00 for nonservice-connected burial benefits. As to the assertion that an amount in excess of $195.00 for a plot or internment allowance, the death certificate shows that the Veteran was actually cremated. Because he was cremated, the Veteran was not "buried in a cemetery" as provided under the governing statute at 38 U.S.C. § 2303(b)(2). Moreover, the implementing regulation provides that the plot or burial plot means the final disposal site of the remains, whether it is a grave, mausoleum vault, columbarium niche, or other similar pace. Since the Veteran was not buried in the cemetery and no plot was purchased or obtained, the Veteran's final remains were neither situated at a grave, mausoleum vault, columbarium niche, or other similar place. 38 C.F.R. § 3.1601(a)(3). As the Veteran was cremated, no plot or interment was purchased; hence, the criteria for any plot or internment allowance were never actually met. The appellant has already been awarded $195.00 for a plot allowance (which the Board cannot disturb); however, under these circumstances, there clearly is no basis to award a plot or interment allowance in excess of the $195.00 erroneously awarded.. 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 awards greater than $300.00 for nonservice-connected burial benefits and $195.00 for a plot or interment allowance simply are not met, despite the fact that the appellant may have incurred costs in excess of those amounts. The legal authority pertaining to the amount of nonservice-connected burial benefits and a plot or interment allowance 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 matter of law. See Sabonis, supra. ORDER The claim for nonservice-connected burial benefits in excess of $300.00 and a plot or interment allowance in excess of $195.00 is denied ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs