Citation Nr: 21067877 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-65 630 DATE: November 5, 2021 ORDER Entitlement to a burial allowance based on a service-connected death, including reimbursement of transportation expenses, is denied. FINDINGS OF FACT 1. The Veteran died in June 2017. 2. On June 28, 2017, VA received a claim for burial benefits from the Veteran's daughter including proof of the Veteran's death and a statement certifying that she had incurred burial expenses for the deceased Veteran. The daughter was the first to file a claim and included all required elements to establish eligibility for payment of burial benefits. 3. On July 7, 2017, VA received the appellant's claim for burial benefits, including a receipt confirming her as the individual whose personal funds were used to pay funeral expenses for the Veteran in the amount of $1,694.68. 4. A burial allowance based on a service-connected death was paid to the Veteran's daughter in August 2017. CONCLUSION OF LAW The criteria for entitlement to VA burial benefits have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-1709. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1954 to September 1975. He died in June 2017. The appellant is the Veteran's friend. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 administrative decision. In August 2021, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing testimony is considered as evidence in this appeal. Entitlement to VA burial benefits is denied. The appellant asserts her entitlement to VA burial benefits to help recoup expenses incurred for the Veteran's cremation and related funeral home services. VA regulations specify in pertinent part that the agency will pay, upon the death of a veteran, the first living person to file a claim for burial benefits in the following priority: a veteran's surviving spouse, the survivor of a legal union with the veteran, the veteran's children (regardless of age), the parents or surviving parent of the veteran, or the executor or administrator of the estate of the deceased veteran. 38 C.F.R. § 3.1702(b). To pay burial benefits, except in the limited case of allowable automatic payments to surviving spouses of eligible deceased veterans that is not applicable here, VA must generally receive all of the following supporting evidence: a claim, acceptable proof of a veteran's death, and for the individuals listed in the above paragraph, a statement certifying that the claimant incurred burial, plot or interment or transportation costs for the deceased veteran. 38 C.F.R. § 3.1703(b)(1). For reimbursement of transportation expenses specifically, VA must also receive a receipt, preferably on letterhead, showing who paid the costs, the name of the deceased veteran, the specific transportation expenses incurred, and the dates of the services rendered. 38 C.F.R. § 3.1703(b)(2). Regulations require that VA will only pay burial benefits to a single representative of the categories of individuals listed above from 38 C.F.R. § 3.1703(b)(1). 38 C.F.R. § 3.1702(b)(3). VA will not divide applicable burial benefits among claimants; it is the responsibility of the recipient to distribute benefits as may be required. Id. In this case, the facts are not in dispute. Benefits are payable for this Veteran in the same manner as if his death were service-connected based on the provisions of 38 U.S.C. § 1318 that establishes benefits for certain veterans rated totally disabled at the time of their death. See Rating decision, July 2017. On that basis, the Veteran was eligible for a VA burial allowance based on a service-connected death. The Veteran's daughter filed a claim, received by VA on June 28, 2017, including the required proof of the Veteran's death and a certified statement that she had incurred funeral costs for the deceased Veteran. Under the applicable regulation, a receipt or other documentation or verification of the veracity of this statement was not required for the service-connected burial benefit to be payable. 38 C.F.R. § 3.1703(b)(1). Nine days later, on July 7, 2017, VA received a claim from the appellant including a receipt from the funeral home showing that she paid $1,694.68 for the Veteran's cremation and related funeral services. In August 2017, VA paid the Veteran's daughter a $2000 burial allowance based on a service-connected death, as she was the first claimant to file, is an eligible family member of the Veteran, and submitted the required supporting evidence for the claim to be granted. The appellant asserts that the daughter's certification that she incurred expenses for the Veteran's burial was false because the appellant is shown to have paid the burial expenses as substantiated by a receipt from the funeral home. The Board does not dispute this assertion, but unfortunately it does not change the outcome of this appeal. The Board acknowledges the Veteran's honorable military service and is sympathetic to the fact that the appellant incurred unreimbursed costs related to the Veteran's funeral and burial. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and the Board is bound by those 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 must apply the laws and regulations as they are written and is without authority to grant benefits on an equitable basis. As, on these facts, there is no legal basis to award burial benefits because service-connected burial benefits have been paid to another prior claimant in compliance with the legal requirements, the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has further considered whether the appellant may be entitled to reimbursement of burial transportation expenses because this type of expense does require substantiation by a receipt and has not been previously paid to the Veteran's daughter. The receipt provided by the appellant, however, does not itemize a specific transportation cost but only states that the cost of transferring the Veteran's remains to the funeral home was included in the direct cremation package. Moreover, for a service-connected death, transportation expenses are reimbursable only for burial in a national cemetery. See 38 C.F.R. § 3.1704(c)(1). In this case as confirmed by the official Certificate of Death, the Veteran was buried in a State veterans cemetery, which is not a national cemetery operated by VA. See National Cemetery Listing, https://www.cem.va.gov/cems/allnational.asp (last visited Oct. 26, 2021). As such, reimbursement of transportation expenses is not available. In all, it is regrettable that the claimant who was paid burial benefits may not have been honest in the statement she provided to VA regarding her role in paying for the Veteran's funeral services. Nonetheless, she did provide the supporting evidence required by regulation and her claim was validly paid as the first living claimant to file for burial benefits for this Veteran. Although recoupment may be unlikely given the family situation described by the appellant in her August 2021 hearing testimony, it is now the responsibility of the Veteran's daughter who received the burial benefits to distribute those benefits appropriately. The appeal must be denied. 38 C.F.R. §§ 3.1702-3.1704, 3.1709. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.