Citation Nr: 19153409 Decision Date: 07/10/19 Archive Date: 07/10/19 DOCKET NO. 17-46 644 DATE: July 10, 2019 ORDER The claim of entitlement to non-service connected death benefits for a plot allowance is denied. FINDING OF FACT No burial plot was purchased for the interment of the Veteran's ashes. CONCLUSION OF LAW The criteria for payment of nonservice-connected burial benefits for a plot allowance are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. He died in October 2013. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2014 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied the appellant’s claim for nonservice-connected burial plot allowance. Entitlement to Nonservice-Connected Burial Plot Allowance The appellant asserts entitlement to a burial plot allowance. The Board notes that the appellant has already been awarded $300.00 for funeral expenses, the maximum award for a nonservice-connected death. Here, the Veteran died in October 2013 and the claim for burial benefits was filed in March 2014. The Board notes that the appellant has a separate claim for service connection for cause of the Veteran's death pending a hearing. Hence, the Board will consider the claim on appeal as one for nonservice-connected burial plot allowance. Where a Veteran’s death is not service connected, a plot allowance to cover the cost of the final site of interment of the Veteran's remains may be payable, but only under certain circumstances. 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1707. 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 State veterans cemetery or a national cemetery, and the veteran is eligible for a burial allowance under § 3.1705, burial allowance based on non-service-connected death; the veteran is eligible for a burial allowance under § 3.1706, burial allowance for a veteran who died while hospitalized by VA; the veteran was discharged from active service for a disability incurred or aggravated in line of duty; or the veteran, at the time of discharge from active service, had a disability, shown by official service records, which in medical judgment would have justified a discharge for disability. Plot or burial plot means the final disposal site of the remains, whether it is a grave, mausoleum vault, columbarium niche, or other similar place. Plot or interment expenses are those expenses associated with the final disposition of the remains and are not confined to the acts done within the burial grounds but may include the removal of remains for burial or interment. 38 C.F.R. 3.1707(d). At the time of his death, the Veteran was in receipt of VA compensation or pension benefits and was awarded burial benefits under 38 C.F.R. § 3.1705. The appellant contends that the Veteran’s cremated remains were interred at the family home and that a decorative stone, purchased for his remains, should be considered his final resting place, for the purposes of 38 C.F.R. § 3.1707. However, 38 C.F.R. § 3.1707 contemplates a cemetery and specifically defines an eligible burial plot as “the final disposal site of the remains, whether it is a grave, mausoleum vault, columbarium niche, or other similar place”, that is, a place purchased for the interment of remains. Here, the Veteran was interred at the appellant’s home, thus no site for the interment of the Veteran's remains was purchased. The Board finds the decorative stone to be more analogous to a casket or headstone than to columbarium niche or other similar place. (Continued on the next page)   The Board has sympathy for the appellant and acknowledges that the Veteran had honorable service. However, the legal authority pertaining to the benefit claimed 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 plot allowance, the appellant’s claim must be denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.