Citation Nr: 20021406 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-30 640 DATE: March 25, 2020 ORDER Entitlement to nonservice-connected burial benefits, to include plot or internment allowance, is denied. FINDINGS OF FACT 1. The appellant, the Veteran’s sister, paid for burial expenses and filed a timely claim for VA burial benefits in April 2017. 2. The Veteran died in February 2017 from myocardial infarction as a consequence of myocardial insufficiency at a private nursing home long-term care facility; he was not admitted to that facility with prior VA authorization and at VA expense for the purpose of examination, treatment or care. 3. At the time of his death, the Veteran was not in receipt of VA compensation or pension benefits (or retired military benefits in lieu of VA compensation or pension benefits); nor does the evidence demonstrate that he had a claim for VA compensation or pension benefits pending before VA at that time of his death. 4. The Veteran was buried in a national cemetery. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected burial benefits, to include plot or internment allowance, have not been met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1700-1713 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1969 to December 1969. He died in February 2017. The appellant is his sister. 1. Entitlement to nonservice-connected burial benefits The appellant asserts entitlement to nonservice-connected burial benefits for expenses related to the Veteran’s 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 April 2017, i.e., following 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 April 2017. It is noted, at the outset, that claims for a burial allowance may be advanced only by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses.” at 38 C.F.R. § 3.1702 (b)(3). Here, the Veteran died in February 2017. The appellant filed a claim for burial benefits in April 2017. In her application, the appellant solely requested entitlement to nonservice-connected death benefits. She submitted a funeral expense report. Accordingly, the Board will only consider whether nonservice-connected burial benefits are warranted. 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. An application for nonservice-connected burial and funeral 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). Specifically, if the cause of a veteran’s death is not service-connected, entitlement is based upon the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation (or (2) but for the receipt of military retirement pay would have been in receipt of compensation; or,) (3) the veteran had an original claim for either benefit pending at the time of his death for which there was evidence available on the date of death to support the award for compensation or pension or, (4) in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, (5) the Veteran 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 the body of the Veteran is being held by a State (or a political subdivision of a State), and the Secretary determines, (i) that there is no next of kin or other person claiming the body of the veteran, and (ii) that there are not available sufficient resources in the veteran’s estate to cover burial and funeral 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 dies 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). The appellant’s claim for burial benefits was timely filed; however, the Board finds that none of the criteria for payment of nonservice-connected burial benefits under C.F.R. §§ 3.1705 and 3.1708 are met. Here, the Veteran was not receiving VA compensation or pension, nor did he have any pending claims for benefits at the time of his death. In fact, the record does not show he had any disability for which he was service connected during his lifetime. His DD Form 214 shows active duty service from November 7, 1969 to December 29, 1969. There is no indication of wartime service or that he was 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. On the contrary, he was discharged from service due to not meeting medical standards at enlistment. Further, the Veteran did no die at a VA facility. The certificate of death lists his place of death as a private nursing home long-term care facility, a non-VA facility. There is no indication that he was admitted to this private facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. The Board acknowledges the appellant’s contention that the Veteran was treated a VA hospital after service, however, according to the death certificate he died at a private nursing home. An April 2018 report of general information documents a telephone call to the private nursing home to determine whether the Veteran was under VA contract at the nursing home. An employee at the nursing home reported that the Veteran was not under VA contract, as the facility does not have any VA contracts. Plot and interment allowances are available for a veteran who was eligible for burial in a national cemetery under 38 U.S.C. § 2402, but was not buried in a national cemetery or other cemetery under the jurisdiction of the U.S., provided that other criteria are met. 38 C.F.R. § 3.1707 (2018). Here, the Veteran is considered to have been a ‘veteran’ for VA purposes such that he was eligible to have been buried in a national cemetery. See 38 U.S.C. § 2402. However, the record reflects that the Veteran was, in fact, buried at a national cemetery. The death certificate lists the place of disposition as Ft. Mitchell National Cemetery. Consequently, the Board finds that the legal requirements for entitlement to a plot or interment allowance have not been met, as one of the threshold requirements are not satisfied. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s death and acknowledges that he 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). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.