Citation Nr: 20059986 Decision Date: 09/11/20 Archive Date: 09/11/20 DOCKET NO. 17-27 319 DATE: September 11, 2020 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran died on February [REDACTED], 2002. He was buried on February [REDACTED], 2002. 2. The appellant’s application for burial benefits was filed in July 2016. CONCLUSION OF LAW The criteria for payment of burial benefits 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 October 1947 to October 1951. He died in February 2002. The appellant is the Veteran’s adult son and executor of his estate. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to nonservice-connected burial benefits. Pursuant to the appellant’s request, a January 2020 hearing was scheduled before a Veterans Law Judge. The appellant did not appear at that hearing, and has not provided good cause. Accordingly, the Board deems his hearing request withdrawn. See 38 C.F.R. § 20.704(d). Entitlement to nonservice-connected burial benefits Initially, the Board notes that 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). Here, the application for burial benefits was not filed within two years of the Veteran’s burial, as he was buried in February 2002 and the claim was filed in July 2016. See July 2016 Application for Burial Benefits. Accordingly, the claim was not filed within two years of the Veteran’s burial. Regardless, the appellant’s claim is denied for the following reasons. In his July 2016 claim, the appellant expressly stated that he was not claiming that the Veteran’s death was related to service. 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). 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 unclaimed. It is uncontroverted that the Veteran died at Harris Methodist Hospital, a non-VA facility. See February 2002 Certificate of Death. As there is no evidence that the Veteran was admitted to Harris Methodist Hospital with prior authorization and at VA expense, the claim must be denied. The appellant stated that the Veteran had applied for VA pension or compensation benefits in the past, but was told his service records were destroyed in the July 1973 fire at the National Personnel Records Center in St. Louis, Missouri. See May 2017 VA Form 9. The Board notes that the documents destroyed in the July 1973 fire were those of the Official Military Personnel Files for the Army and Air Force. VA records were not destroyed in the fire. See www.archives.gov/st-louis/military-personnel/fire-1973.html. As stated above, VA has no documentation of the Veteran applying for any form of pension or compensation. Regarding a plot or interment allowance, as explained above, the Veteran was not eligible for a burial allowance and he did not die while admitted to a VA facility. Nor was the Veteran discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty (or had a disability at the time of discharge that would have justified a discharge for disability). In other words, a plot or interment allowance is precluded by the applicable provisions of 38 C.F.R. § 3.1707. 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. 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 burial benefits, the appellant’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.