Citation Nr: A21016357 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 200804-164031 DATE: October 5, 2021 ORDER The claim of entitlement to reimbursement of transportation expenses is denied. FINDINGS OF FACT 1. The Veteran was not buried in a national cemetery. 2. The Veteran passed away at a private facility, and the claims file does not reflect that his care was at VA expense at the time of his passing. CONCLUSION OF LAW The criteria for reimbursement of transportation expenses have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700, 3.1706, 3.1709. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service with the United States Air Force from January 1966 to February 1974. He passed away in February 2020, and his spouse, the appellant in the present matter, filed a claim for burial benefits in April 2020. The Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), took effect on February 19, 2019. The instant matter is on appeal from an August 2020 decision. The appellant filed a Notice of Disagreement the same month and selected the Evidence Submission Docket specifically on the issue of reimbursement of transportation expenses. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. The claim of entitlement to reimbursement of transportation expenses Initially, 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." 38 C.F.R. § 3.1702(b)(3). Here, the appellant indicated that she had incurred expenses related to the transportation of the Veteran's remains to the place of burial. Where, as here, a veteran's death is not shown to be connected to his service, the expense of transporting the veteran's bodily remains to the place of burial may be payable, but only under certain limited circumstances. These circumstances include where a veteran died while hospitalized by VA as defined by 38 C.F.R. § 3.1706(b), or where other eligibility criteria are met, and a veteran is buried in a national cemetery. 38 C.F.R. §§ 3.1705, 3.1706. In this case, the appellant's April 2020 application for burial benefits indicated that the Veteran was buried at the West Tennessee Veterans Cemetery. The West Tennessee Veterans Cemetery is a state veterans cemetery, not one owned by the federal government. Thus, transportation expenses for burial in a national cemetery are not warranted. 38 C.F.R. § 3.1709. Alternatively, reimbursement of transportation expenses is also available pursuant to 38 C.F.R. § 3.1706(d), based on a death that occurred while hospitalized by VA. To be eligible for reimbursement of the expense for transporting a Veteran's body based on a death while hospitalized by VA, the Veteran must have been 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. 38 C.F.R. § 3.1706(b). Here, there is no evidence that the Veteran was at a non-VA facility at the time of his death at the expense of VA. The Veteran passed away at a private hospital, but there is no evidence that his admission was at VA expense, nor does the appellant allege this. 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 reimbursement of transportation expenses, the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. MULLINS 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.