Citation Nr: 21012886 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-00 305 DATE: March 5, 2021 ORDER Entitlement to burial benefits, to include transportation reimbursement for burial in a national cemetery, is denied. FINDING OF FACT 1. In January 2018, the Veteran died at private hospital and was buried later that month. The appellant’s application for burial benefits was received in February 2018. 2. At the time of his death, the Veteran was not receiving any VA compensation or pension benefits, and there was no original or reopened claim for VA compensation or pension benefits pending which was ultimately granted. 3. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 4. The Veteran’s body was not unclaimed, and the appellant paid expenses related to the Veteran’s burial. 5. 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. CONCLUSION OF LAW The criteria for entitlement to burial benefits have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1952 to November 1957. He died in January 2018. The appellant is his adult daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 decision of the Department of Veterans Affairs (VA) Pension Management Office (PMC) in Philadelphia, Pennsylvania. Entitlement to burial benefits The appellant asserts entitlement to burial benefits to recoup the costs of the Veteran’s funeral and burial expenses. It is noted, at the outset, that claims for a burial allowance may be executed 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). An application for nonservice-connected burial and cremation 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). The two-year time limit does not apply to claims for service-connected burial allowance, or for the cost of transporting a veteran’s body to the place of burial when the veteran dies while properly hospitalized by VA, or for burial in a national cemetery. 38 C.F.R. § 3.1703(a). Here, the Veteran died in January 2018 and the appellant filed her claim for burial benefits the following month. In her claim, the appellant expressly stated that she was not claiming that the Veteran’s death was related to service. Hence, the Board will consider the claim on appeal as one for nonservice-connected burial benefits. 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. Specifically, if the cause of a veteran’s death is not service connected, entitlement is based upon the following conditions: at the time of death, the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or, the veteran had an original claim for either benefit pending at the time of her death for which there was evidence available on the date of death to support the award for compensation or pension or, in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, 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 there is no next of kin and the veteran’s estate funds are insufficient to cover 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 died 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). At the time of his death, the Veteran was not receiving any VA compensation or pension benefits, and the evidence does not reflect that there was an original or reopened claim for either benefit pending which was ultimately granted. 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. Finally, it is uncontroverted that the Veteran died at a private facility, Plaza del Carmen Medical Service. The Board acknowledges the appellant’s assertion that Veteran was en route to a VA medical facility by ambulance but was diverted to Plaza del Carmen Medical Service due to his rapidly deteriorating health. See October 2018 Notice of Disagreement. Regardless, there is still no suggestion that the care received at the private hospital was VA-contracted care. Moreover, the appellant provided a bill from the Veteran’s insurance, which lists MCS Classicare as the Veteran’s insurer which paid for his emergency room treatment at Plaza del Carmen Medical Service. In order for the criteria for nonservice-connected burial benefits to be met, the Veteran must have died at a facility under VA contract. As there simply is no evidence that the private care was under VA contract, the criteria for nonservice-connected burial benefits are not met. Regarding a transportation allowance under 38 C.F.R. § 3.1709, reimbursement for transportation expenses is permitted only when the Veteran is buried in a national cemetery and the Veteran died as the result of a service-connected disability, or was receiving service-connected disability compensation on the date of death, or would have been receiving service-connected disability compensation on the date of death but for the receipt of military retired pay or non-service-connected pension. 38 C.F.R. § 3.1709(b). Although the Veteran is buried in a national cemetery, the record does not show that he died as the result of a service-connected disability, or was receiving service-connected disability compensation on the date of death, or would have been receiving service-connected disability compensation on the date of death but for the receipt of military retired pay or non-service-connected pension. As such, the criteria for reimbursement of transportation expenses for burial in a national cemetery have not been met. (Continued on the next page)   The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and 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 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. § 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. 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). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.