Citation Nr: 21072502 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-42 571 DATE: December 3, 2021 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDING OF FACT 1. The Appellant, the Veteran's surviving sister, paid for the Veteran's burial expenses. 2. The Veteran died in February 2015. At the time of his death, the Veteran was not in receipt of VA compensation or pension benefits (or retired military benefits in lieu of VA compensation or pension benefits); nor does the evidence demonstrate that he had a claim for VA compensation or pension benefits pending before VA at that time. Additionally, the Veteran was not admitted to a facility with prior VA authorization and at VA expense for the purpose of examination, treatment, or care. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 101, 2302, 2303, 2402, 5107; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1976 to February 1980. Unfortunately, he died in February 2015. The Appellant is the Veteran's sister. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant disagreed with the RO's determination and a Statement of the Case (SOC) was issued in July 2017 addressing the matter. The appellant timely appealed. At her request, the Appellant was scheduled for a Travel Board hearing to be held in October 2021. However, the Appellant failed to report for the hearing, and neither furnished an explanation for her failure to report, nor requested a postponement or another hearing. As such, the Appellant's hearing request is deemed withdrawn. 38 C.F.R. § 20.603. Entitlement to nonservice-connected burial benefits Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for burial benefits pending on or after July 7, 2014. (The Appellant's claim for burial benefits has been pending since August 2016, i.e., following the effective date of the rule change on July 7, 2014). Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and old provisions, with due consideration to the effective date of the changes and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the new regulations, in effect at the time the Appellant's claim was filed in August 2016. It is noted, at the outset, that 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." at 38 C.F.R. § 3.1702(b)(3). In this instance, the Appellant has provided receipts showing that she paid for the Veteran's burial expenses. The Appellant requests reimbursement for the Veteran's burial expenses. In her application for benefits, the appellant indicated that she is only applying for non-service-connected death benefits. Accordingly, only eligibility for benefits on a nonservice-connected basis will be considered. 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. 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). Specifically, if the cause of a veteran's death is not service-connected, entitlement is based upon the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation (or (2) but for the receipt of military retirement pay would have been in receipt of compensation; or,) (3) the veteran had an original claim for either benefit pending at the time of his death for which there was evidence available on the date of death to support the award for compensation or pension or, (4) in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, (5) 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 the body of the deceased is being held by a State (or a political subdivision of a State), and the Secretary determines, (i) that there is no next of kin or other person claiming the body of the deceased veteran, and (ii) that there are not available sufficient resources in the veteran's estate to cover burial and funeral 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 die 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). The Appellant's March 2016 claim for burial benefits was timely filed within two years of the Veteran's death in February 2015; however, the Board finds that none of the criteria for payment of nonservice-connected burial benefits under C.F.R. §§ 3.1705 and 3.1708 are met. Here, the Veteran was not receiving VA compensation or pension, nor did he have any pending claims for benefits at the time of his death. In fact, the record does not show he had any disability for which he was service-connected during his lifetime. 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 held by a State. Although the claims file confirms VA primary care treatment, the Veteran did not die at a VA facility. The certificate of death lists his place of death as Calvary Hospital, a non-VA hospital. Based on the foregoing, the Board finds that none of the criteria for payment of nonservice-connected burial benefits under C.F.R. §§ 3.1705 and 3.1708 are met. Regarding plot or interment allowance, the Veteran was not buried in a national cemetery or other cemetery controlled by the United States. Instead, he was buried at a private cemetery. The death certificate lists Beth El Cemetery as the place of disposition. Nevertheless, any claim for a plot allowance would still fail, as the Veteran was not eligible for a burial allowance as he did not die while admitted to a VA facility, as previously explained. Nor was he discharged from the active military, naval, or air service for a disability incurred or aggravated in the line of duty, for a service-connected death. In other words, a plot allowance would be precluded by other applicable provisions of 38 C.F.R. § 3.1707. Consequently, the legal requirements for entitlement to a plot allowance have not been met. For transportation allowance under 38 C.F.R. § 3.1709, VA will reimburse the costs of transportation only if a veteran was buried in a national cemetery. As stated, the Veteran was buried at a private cemetery. Because the Veteran was not buried in a national cemetery, reimbursement for transportation expenses is not available. The Board is sympathetic to the fact that the Appellant incurred costs related to the Veteran's 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 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 burial benefits and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Rachel Walker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.