Citation Nr: 20056017 Decision Date: 08/25/20 Archive Date: 08/25/20 DOCKET NO. 20-21 618 DATE: August 25, 2020 ORDER Entitlement to burial benefits in excess of $300.00 is denied. FINDINGS OF FACT 1. The appellant, the Veteran’s surviving spouse, paid for the Veteran’s burial expenses and filed a timely claim for VA burial benefits in August 2018. She did not incur any expenses for plot or interment. 2. The Veteran died in March 2018 from massive pulmonary embolism due to coronary artery disease as a consequence of post-bypass at a private medical facility. 3. The Veteran was not buried in a national cemetery. CONCLUSION OF LAW The criteria for burial benefits in excess of $300.00 have not been met. 38 U.S.C. §§ 101, 2302, 2303, 2402, 5107 (2012); 38 C.F.R. §§ 3.1700-3.1713 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1976 to January 1981. He died in March 2018. The appellant is his surviving spouse. 1. Entitlement to burial benefits in excess of $300.00 The appellant asserts that she is entitled to burial benefits in excess of $300.00. 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 August 2018, 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 August 2018. 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). The Veteran died in March 2018 from massive pulmonary embolism due to coronary artery disease as a consequence of post-bypass. In her application for benefits, the appellant did not mark whether she was applying for service-connected or nonservice-connected burial benefits. Notably, the appellant has already been awarded $300.00 for nonservice-connected burial benefits. In an October 2019 letter, VA informed the appellant of a prior $300.00 payment for burial costs and that the appellant did not indicate whether she was applying for service-connected burial benefits. The letter denied claims for plot or internment allowance and transportation reimbursement. In a notice of disagreement (NOD), dated the same month, the appellant requested compensation for plot or interment allowance and transportation costs. As such, the Board finds that the claim has been limited to whether compensation is warranted for plot or internment and transportation costs. 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 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 the body of the deceased 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 deceased 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 August 2018 claim for burial benefits was timely filed within two years of the Veteran’s death in March 2018; however, the Board finds that none of the criteria for payment in excess of $300.00 for burial benefits are met. Plot or 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. The claim for plot or interment allowance fails. Although the Veteran was cremated, there is no indication that the appellant paid for plot or interment expenses. In her application for burial benefits, the appellant did not list a place of burial or location of the deceased Veteran’s remains, or indicate that she incurred expenses for plot or interment. In support of her application, the appellant submitted a funeral invoice but no itemized expenses. The certificate of death shows that the Veteran was cremated and a funeral was held, however, there is no indication that he has a plot or interment. Further, the Board notes that there is no indication that the State is claiming the plot or intermittent allowance for burial of the Veteran. 38 C.F.R. § 3.1707 (b). In her application for benefits, the appellant indicated that a government entity did not contribute to burial costs. Consequently, the Board finds that the legal requirements for entitlement to a plot or interment allowance have not been met, and any claim for such must be denied. As regards transportation allowance under 38 C.F.R. § 3.1709, VA will reimburse the costs of transportation only if a veteran was buried in a national cemetery. Here, there is no indication that the Veteran was buried in a national cemetery. As discussed, the death certificate indicates that the Veteran was cremated and a funeral was held both at non-VA facilities, however, there is no indication of a plot or interment. Further, the application for burial benefits does not list a place of burial or location of the deceased Veteran’s remains. Because the Veteran was not buried in a national cemetery, reimbursement for transportation expenses is not available. See 38 C.F.R. § 3.1709 (2018). The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s death 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. Here, there is no legal basis to award burial benefits in excess of $300.00 and the 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.