Citation Nr: 21015751 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-05 820A DATE: March 18, 2021 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDING OF FACT The Appellant, the Veteran’s surviving spouse, did not incur any expenses for the Veteran’s burial. CONCLUSION OF LAW The criteria for nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1700-1713. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1949 to July 1962 with additional Marine Reserve service. He died in November 2010. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. 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 July 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 July 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.” 38 C.F.R. § 3.1702(b)(3). The Veteran’s certificate of death shows that he died in November 2010. In her July 2016 application for burial benefits, the Appellant listed $1,587.00 in burial expenses paid by insurance. She marked “yes” that expenses have been paid in full, and that persons whose funds were used had been reimbursed. In support of her claim, the Appellant submitted a funeral bill listing $1,587.00 in burial expenses paid in full by a January 2011 check. Notably, the check is not of record. The bill lists Keith Oster as the billed person, and the funeral bill was signed by the Veteran’s sister-in-law. As the Appellant did not personally incur any expenses related to the Veteran’s burial, the legal requirements for entitlement to nonservice-connected burial benefits have not been met. 38 C.F.R. § 3.1702(b)(3). The Board acknowledges the Appellant’s July 2018 contention that burial benefits should be awarded because the Veteran was disabled at the time of his death, however, being disabled is not a legal criteria for the award of burial benefits. 38 C.F.R. §§ 3.1700 through 3.1713. To the extent the Appellant contends that the Veteran did not leave her any insurance and that this entry on her application was a mistake, associated funeral bills do not demonstrate that she incurred any expenses related to the Veteran’s burial. See May 2017 Notice of Disagreement. As stated, a person other than the Appellant is listed as the person billed, and the funeral bill was signed by the Veteran’s sister-in-law. Notably, the Appellant’s name is not listed in the funeral bill. Although the funeral bill indicates that expenses were paid in full by a check, the associated check is not of record. After being notified in January 2017 that her claim was denied because she did not incur expenses related to the Veteran’s funeral, the Appellant subsequently submitted a duplicate funeral bill but no additional evidence demonstrating that she incurred expenses. Based on the foregoing, the preponderance of the evidence is against finding that the Appellant incurred expenses related to the Veteran’s burial. The Board 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.   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). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.