Citation Nr: 19115451 Decision Date: 03/01/19 Archive Date: 03/01/19 DOCKET NO. 16-46 025A DATE: March 1, 2019 ORDER The claim of entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran died at his residence in February 2015, and was cremated later that month. The appellant’s application for burial benefits was received in October 2015. 2. At the time of his death, the Veteran was not receiving any VA compensation or pension benefits, and there was no original or reopened claim for VA compensation or pension benefits pending which was ultimately granted. 3. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 4. The Veteran’s body was not unclaimed, and the appellant paid expenses related to the Veteran’s cremation. 5. 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 nonservice-connected burial benefits 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 November 1971 to January 1973. He died in February 2015. The appellant is his adult daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2016 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania denied the appellant’s claim for nonservice-connected burial benefits. In April 2016, 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. Entitlement to Burial Benefits The appellant asserts entitlement to burial benefits to recoup the costs of the Veteran’s funeral and cremation 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 October 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 October 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 February 2015 and the appellant filed her claim for burial benefits in October 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 cremation 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 cremation. Hence, for purposes of nonservice-burial benefits, the application was timely. However, the remaining, substantive criteria for such benefits simply are not met in this case. At the time of his death, the Veteran was not receiving any VA compensation or pension benefits, and the evidence does not reflect that there was an original or reopened claim for either benefit pending which was ultimately granted. Additionally, the 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 his residence. The Board acknowledges the appellant’s argument that the Veteran was receiving compensation from VA. See September 2016 VA Form 9. The record shows that the Veteran was in receipt of pension benefits until April 2009, when those benefits were terminated due to the Veteran’s income being excessive. The Veteran did not disagree with that decision and it became final. As it is uncontroverted that the Veteran was not in receipt of VA compensation at the time of his death, the criteria for nonservice-connected burial benefits have not been met. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and cremation, 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, 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