Citation Nr: 21024923 Decision Date: 04/27/21 Archive Date: 04/26/21 DOCKET NO. 16-63 004 DATE: April 27, 2021 ORDER Entitlement to nonservice-connected burial benefits, to include transportation allowance, is denied. FINDINGS OF FACT 1. The Veteran died in April 1994 and was buried in May 1994. 2. The Appellant’s application for nonservice-connected burial benefits was received in November 2015. 3. The Appellant did not personally pay for the Veteran’s burial expenses, including transportation costs. CONCLUSION OF LAW The criteria for nonservice-connected burial benefits, to include transportation allowance, have not been met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1700 -3.1713 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1943 to January 1946. He died in April 1994. The Appellant is his surviving child. 1. Entitlement to nonservice-connected burial benefits The Appellant asserts entitlement to reimbursement of expenses related to the Veteran’s burial, including transportation allowance. 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 November 2015, 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 November 2015. An application for nonservice-connected burial benefits must be filed within two years after the burial or cremation of the veteran’s body. 38 C.F.R. § 3.1703(a). This time limit also applies to claims for a plot or interment. 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). In her November 2015 application for benefits, the Appellant explicitly stated that she was solely claiming burial allowance for non-service connected death. Accordingly, only eligibility for benefits on a nonservice-connected basis will be considered. VA received the Appellant’s application for burial benefits in September 2018. The Veteran died in April 1994 and was buried in May 1994, more than two years prior to the receipt of the Appellant’s application for nonservice-connected burial benefits. As the application for nonservice-connected burial benefits was not received within two years of the Veteran’s burial, it was untimely. 38 U.S.C. § 2304; 38 C.F.R. § 3.1703(a). Because the claim was not timely filed, the Board has no jurisdiction to adjudicate the merits and it must be denied as a matter of law. The Board acknowledges the Appellant’s contention that she is entitled to nonservice-connected burial expenses because VA paid for the Veteran’s burial plot. See October 2016 VA Form 9. Although the Board is sympathetic that the Veteran’s family incurred expenses related to his burial, the Board is bound by the law establishing specific burial benefits regulations, including strict filing timelines. 38 C.F.R. § 3.1703(a). As such, the Board is required to rule accordingly. As for transportation allowance, under applicable VA regulations, the two-year time limit does not apply to claims 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). In her application for burial benefits, the Appellant requested reimbursement of $3,810.00 for transportation costs. 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). Here, there is no indication that the Appellant personally incurred expenses related to the Veteran’s burial. In fact, in her application for burial benefits, she indicated that she did not incur any expenses related to the Veteran’s burial. A review of the Veteran’s funeral bill lists paid transportation expenses; however, the bill is addressed to a person other than the Appellant. To this regard, during an October 2016 VA phone call, the Appellant stated that her mother paid for the Veteran’s burial expenses. As the Appellant did not personally pay for expenses related the Veteran’s burial, reimbursement for transportation expenses is denied. 38 C.F.R. § 3.1702(b)(3). The Board acknowledges the Veteran’s honorable military service, including service during World War II Era. 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 or transportation allowance 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.