Citation Nr: 21073861 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-48 196 DATE: December 10, 2021 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 2. There was no claim for VA compensation or pension benefits pending at the time of the Veteran's death. 3. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for the purpose of examination, treatment, or care. 4. The Veteran's body was claimed and the appellant incurred expenses related to the Veteran's burial. CONCLUSION OF LAW The criteria have not been met to establish eligibility for nonservice-connected burial benefits. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1979 to March 1980. He died in March 2017. The appellant is the Veteran's mother who incurred costs related to the Veteran's burial. The appellant requested a personal hearing before the Board in September 2018. In July 2021, however, she failed to appear for a scheduled hearing and no request for postponement was received. Therefore, the case is processed as though the request for a hearing was withdrawn and the Board will proceed with adjudication of the appeal. 38 C.F.R. § 20.704(d). Entitlement to nonservice-connected burial benefits is denied. The Veteran died from cardiopulmonary arrest due to prostate cancer. Certificate of Death, April 2017. The appellant has not claimed, nor does the record otherwise indicate, that the cause of the Veteran's death was due to a service-connected disability. See, e.g., Burial benefits claim, May 2017 (noting only that benefits based upon a nonservice-connected death were sought). Thus, the Board turns to the criteria necessary to establish VA burial benefits based on a nonservice-connected death. Where the cause of a veteran's death is not related to his active service, monetary burial benefits may be paid, but only in certain circumstances. At least one of the following conditions must be met: at the time of death, (1) a veteran was in receipt of VA pension or compensation benefits (or but for the receipt of military retirement pay would have been in receipt of compensation); or, (2) a veteran had pending an original claim or petition to reopen a previously denied pension or disability compensation claim with evidence in the claims file sufficient to grant the pending claim before the date of death; or (3) a veteran died while hospitalized by VA under the definition established by regulations; or (4) there is no next of kin or other person claiming the remains of the deceased veteran and there are not sufficient resources in a veteran's estate available to cover the burial and funeral expenses. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705, 3.1706, 3.1708. Other burial benefits may then be available, in addition to the nonservice-connected burial allowance, for transportation expenses related to burial in a national cemetery, or a plot or interment allowance for burial in a State veterans cemetery, but again only in certain circumstances that do not apply here where the Veteran is buried in a private cemetery rather than a national or State veterans cemetery. 38 C.F.R. §§ 3.1707, 3.1709. Here, at the time of the Veteran's death, he was not receiving any VA compensation or pension benefits, and there was no claim pending for either benefit. A prior pension claim was last denied in August 2012, several years prior to the Veteran's death. It is also uncontested that the Veteran died in a private hospital, not a VA facility. See Certificate of Death, April 2017; see also Application for burial benefits, May 2017 (noting the death upon which benefits are sought did not occur at a VA medical center, nursing home under VA contract, or other VA facility). Finally, the Veteran's remains were not unclaimed and the appellant paid expenses related to his burial. Based on these facts, the criteria are not met to establish eligibility for VA burial benefits based on a nonservice-connected death. The Board acknowledges the Veteran's honorable military service, and that the appellant incurred expenses related to his burial. However, the legal authority pertaining to VA 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 the requirements 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 beyond those established by the relevant eligibility criteria. As, on these facts, there is no legal basis to award burial benefits, the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The denial of this claim for benefits, however, can in no way diminish the honor of the Veteran's service for which the Board remains grateful. David Gratz 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.