Citation Nr: 21021301 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 19-18 676 DATE: April 12, 2021 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The appellant, the Veteran’s surviving sister, paid for the Veteran’s burial expenses and filed a timely claim for VA burial benefits in August 2018. 2. The Veteran died in July 2018 from cardiopulmonary failure due to chronic obstructive pulmonary disease at a non-VA nursing home long-term care facility; the Veteran was not admitted to that facility with prior VA authorization and at VA expense for the purpose of examination, treatment or care. 3. 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. 4. The Veteran was buried at a national cemetery. 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 (2012); 38 C.F.R. §§ 3.1700-3.1713 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service with the United States Air Force from July 1965 to April 1970. The Veteran passed away in July 2018. The appellant is the Veteran’s surviving sister. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 administrative decision issued by the Department of Veterans Affairs (VA) denying nonservice-connected burial allowance. The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2020. A transcript of the hearing is associated with the electronic claims file. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2020). In October 2020, the Board remanded the claim for additional development, to include verification of whether VA paid for the Veteran’s care at a non-VA facility. As applicable records have been associated with the claims file, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to nonservice-connected burial benefits The appellant asserts that she is entitled to burial benefits, to include a plot or interment allowance and transportation reimbursement. 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 2018, 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 2018. 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). The Veteran died in July 2018 from cardiopulmonary failure due to chronic obstructive pulmonary disease. 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 dies 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 August 2018 claim for burial benefits was timely filed within two years of the Veteran’s death in July 2018; 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 Nurse Care of Buckhead, a non-VA nursing home long-term care facility. At the August 2020 hearing, the appellant testified that this non-VA facility was under contract with the federal government. As such, in October 2020 the Board remanded the claim for verification on whether the Veteran was admitted to this non-VA facility with prior VA authorization and at VA expense. Private medical records have been associated with the claims file and show that the Veteran was admitted to the non-VA facility in April 2018 at which time the primary payer listed was Hospice Medicaid. Admission records also list a second payer as patient liability, and third payer as Medicare B. Contrary to the appellant’s testimony, the Veteran was not admitted to this non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. Next, plot and interment allowances are available for a veteran who was eligible for burial in a national cemetery under 38 U.S.C. § 2402, but was not buried in a national cemetery or other cemetery under the jurisdiction of the U.S., provided that other criteria are met. 38 C.F.R. § 3.1707 (2020). Here, the Veteran is considered to have been a ‘veteran’ for VA purposes such that he was eligible to have been buried in a national cemetery. See 38 U.S.C. § 2402. However, the record reflects that the Veteran was, in fact, buried at a national cemetery. The appellant’s application for benefits clearly states that the Veteran was buried at Georgia National Cemetery. The Death Certificate also lists Georgia National Cemetery as the place of disposition. Consequently, the Board finds that plot or interment allowance is precluded by 38 C.F.R. § 3.1707. As regards transportation reimbursement under 38 C.F.R. § 3.1709, although the Veteran was buried at a national cemetery, the eligibility requirements under 38 C.F.R. § 3.1709(b) have not been met. Here, the Veteran did not die as the result of a service-connected disability, and he was not in receipt of VA compensation on the date of his death. Nor would he have been receiving service-connected disability compensation on the date of his death, but for the receipt of military retired pay or nonservice-connected disability pension. Further, his remains have not been unclaimed pursuant to § 3.1708. In other words, transportation reimbursement is precluded by applicable provisions of 38 C.F.R. § 3.1709(b). Consequently, the legal requirements for entitlement to reimbursement of transportation expenses have not been met. The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s death 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. Here, there is no legal basis to award nonservice-connected burial benefits and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). TANYA SMITH 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.