Citation Nr: A21017607 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 210930-188829 DATE: November 1, 2021 ORDER Entitlement to burial transportation reimbursement is denied. FINDING OF FACT As of August 25, 2021, VA had not received a receipt detailing the requested transportation costs pursuant to 38 C.F.R. § 3.1703(b)(2). CONCLUSION OF LAW The criteria for entitlement to reimbursement for transportation expenses have not been met. 38 U.S.C. §§ 2302, 2303, 2305; 38 C.F.R. §§ 3.1700-1713. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1949 to December 1968. He died in December 2019, and the appellant is his son. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2021 Appeals Modernization Act (AMA) decision from the Agency of Original Jurisdiction (AOJ) that considered the evidence of record on that date. The appellant timely appealed the decision to the Board by filing a timely VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the AOJ. AMA regulations state that the record closes the date of the AMA decision under the Direct Review Appeal Docket Lane. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. See 38 C.F.R. § 20.301. In this case, that date is August 25, 2021. The Board notes that the appellant submitted evidence to include an explanation of his expenses in support of his claim with his Direct Review Request. As noted above, since the appellant selected the Direct Review option, and as the Board is deciding the claim of entitlement to burial benefits, it may not consider this evidence in its decision. See 38 C.F.R. § 20.300. The appellant may file a Supplemental Claim and re-submit or identify this new evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board also acknowledges that the decision was for "non-service-connected burial benefits" but the Veteran's cause of death was due to a heart attack as a consequence of hypertension, diabetes mellitus, dyslipidemia and atrial fib; and prior to his death, the Veteran was service connected, in part, for a heart disability, diabetes mellitus, and hypertension. The August 2021 letter included information for the appellant, specifically alerting him that on the application form, as he did not check which type of burial allowance benefit he was requesting, it was assumed he was claiming the non-service-connected burial allowance; but if he would like to claim the service-connected burial allowance, he must resubmit VA Form 21P-530, Application for Burial Benefits, requesting the "Service-Connected Death" burial allowance type. The appellant is reminded that there is no time limit for filing a claim for the service-connected burial allowance. Initially, the Board notes that in the August 2021 decision, the appellant was denied the claim for the non-service-connected burial allowance and denied his claim for transportation allowance and plot allowance because the application received from the appellant did not indicate that he incurred any expenses, nor did he provide any receipts. However, in the Form 10182, the appellant only appealed the denial of the transportation allowance. Under 38 C.F.R. § 3.1709(b)(2), the costs incurred to transport a veteran's remains for burial in a national cemetery will be reimbursed if the veteran was receiving service-connected disability compensation on the date of death. In this case, the Veteran was indeed in receipt of service-connected disability compensation. Next, it is noted, at the outset, that in order to pay transportation costs, VA must receive a receipt showing who paid the costs, the name of the deceased veteran, the specific transportation expenses incurred, and the dates of the services rendered. See 38 C.F.R. § 3.1703(b)(2). Here, in his application for burial benefits, the appellant indicated he had incurred expenses for the Veteran's burial. See August 2021 Application for Burial Benefits. However, he did not provide an itemized cost for the funeral, to include transportation; rather, the transportation costs were only noted in the total expenses incurred on his application for Burial Benefits. Additionally, the Board notes that no receipt was received with the application or prior to the August 2021 AMA decision. As VA did not and has not received a receipt pursuant to the requirements of 38 C.F.R. § 3.1703(b)(2), the claim as a matter of law must be denied. The Board again reiterates that although the appellant submitted a statement as to the expense incurred for the transportation costs for the funeral services for the Veteran, VA still has not received a receipt nor did they receive this statement until September 2021 after the August 2021 decision. The appellant also very clearly selected the Direct Review option on his Form 10182 which explained that he could not submit additional evidence. The appellant also received an AMA docketing letter in October 2021 which clearly noted that the appeal was placed on the Direct Review docket and that additional evidence could not be submitted. The docketing letter also contained a section advising the appellant on how he can switch dockets, but it does not appear from the record that the appellant filed any request to switch dockets. Therefore, the Board is unable to consider the statement for the transportation costs at this time, but, as noted above, the appellant may file a Supplemental Claim with the new evidence. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran's funeral transportation and acknowledges and sincerely appreciates the Veteran's honorable service. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the AOJ 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 transportation allowance and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.