Citation Nr: 19166702 Decision Date: 08/28/19 Archive Date: 08/27/19 DOCKET NO. 18-24 452 DATE: August 28, 2019 ORDER The claim of entitlement to nonservice-connected burial benefits is denied. The claim of entitlement to service-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran died at his residence in September 2015, and was buried 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 burial. 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. 6. Service connection for the cause of the Veteran’s death was denied in an October 2015 rating decision. 7. The appellant did not disagree with the October 2015 denial of service connection for the cause of the Veteran’s death within one year of the issuance of the October 2015 rating decision. CONCLUSIONS OF LAW 1. 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. 2. The criteria for payment of service-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 CONCLUSIONS The Veteran served on active duty from August 1957 to February 1958. He died in September 2015. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2016 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied the appellant’s claim for burial benefits. In August 2017, the appellant filed a notice of disagreement (NOD). In December 2017, 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 May 2018. A supplemental SOC (SSOC) was issued in May 2018. Analysis The appellant asserts entitlement to burial benefits to recoup the costs of the Veteran’s funeral and burial 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). 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 burial. 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 private residence. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and burial, 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 nonservice-connected burial benefits, the appellant’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service-Connected Burial Benefits As regards service-connected burial benefits, that benefit requires that service connection for the cause of the Veteran’s death be granted. Here, in an October 2015 rating decision, service connection for the cause of the Veteran’s death was denied. The appellant did not submit an NOD within one year of the issuance of that decision. Indeed, she has not disagreed with that decision to date. As such, the denial as to service connection for the cause of the Veteran’s death is final as the appellant did not disagree with the rating decision that denied service connection for the cause of the Veteran's death within one year of its issuance. See 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Given that service connection for the cause of the Veteran’s death has not been established, nor did the appellant disagree with the denial of such, the criteria for service-connected burial benefits have not been met. As, on these facts, there is no legal basis to award service-connected burial benefits, the appellant’s claim must be denied as a matter of law. See Sabonis, supra. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Sanford, 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.