Citation Nr: 21061385 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 16-49 221 DATE: October 1, 2021 ORDER The claim of entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran passed away in November 2014 at a nursing home-long term care facility. His cause of death was lung cancer. 2. The appellant, the Veteran's sibling, paid for the Veteran's burial expenses and filed a claim for VA burial benefits in February 2015. 3. At the time of his passing, the Veteran was not in receipt of VA pension or compensation benefits, nor would have been in receipt of such benefits but for receipt of military retired pay. 4. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran's death that would result in VA disability benefits. 5. The Veteran did not die while admitted to a VA facility or hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for examination, treatment, or care. CONCLUSION OF LAW The criteria for payment of nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302 -2308; 38 C.F.R. §§ 3.1700-3.1706. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had periods of active duty service with the United States Army from August to September 1973 and June to September 1975. He passed away in November 2014, and his sibling, the appellant in the present matter, filed a claim for nonservice-connected burial benefits in February 2015. In May 2021, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. The claim of entitlement to nonservice-connected burial benefits The appellant asserts entitlement to nonservice-connected burial benefits. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which include burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the current regulations (38 C.F.R. §§ 3.1600 through 3.1612), and it replaced them with new §§ 3.1700 through 3.1713; see also 79 Fed. Reg. 32653. Applicable here, as the present claim was filed in February 2015, the new regulation regarding nonservice-connected burial benefits is found at 38 C.F.R. § 3.1705. That regulation provides that a burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. As with the old regulation, burial allowance is also warranted for a veteran who died while hospitalized by VA or who died while traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care. 38 C.F.R. § 3.1706. In the present case, the Veteran passed away in November 2014 due to lung cancer. His death certificate lists his place of death as a nursing home-long term care facility. The evidence of record does not reflect that this was a VA facility or one authorized at VA expense, nor does the appellant claim such. At the time of his passing, the Veteran was not in receipt of VA pension or disability compensation, nor would he have been entitled to it but for the receipt of military retired pay. The Veteran also did not have a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution at the time of his passing. Similarly, the Veteran did not pass away while hospitalized by VA or while traveling with VA authorization. Thus, entitlement to nonservice-connected burial benefits has not been established. (Continued on the next page) The Board is sympathetic 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. § 21.101(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). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.