Citation Nr: 21029248 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-40 726 DATE: May 13, 2021 ORDER Entitlement to nonservice-connected burial benefits in excess of $300.00 and a plot or internment allowance in excess of $745.00 is denied. FINDINGS OF FACT 1. The Veteran died in March 2015 and was buried at a private cemetery. 2. The appellant was awarded $300.00 in nonservice-connected burial benefits. 3. The appellant was awarded $745.00 for a plot/internment allowance. CONCLUSION OF LAW The criteria for nonservice-connected burial benefits in excess of $300.00 or a plot or interment allowance in excess of $745.00 are not met. 38 U.S.C. §§ 101, 2302, 2303, 2402, 5107; 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1954 to May 1958. He died in March 2015. The appellant is his brother. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) awarded $300.00 for nonservice-connected burial costs and $745.00 for cemetery/plot costs. The appellant requested a hearing before the Board, which was scheduled for November 2019, but he failed to appear. Neither the appellant nor his representative have requested that the hearing be rescheduled or submitted good cause for this absence. Therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). Entitlement to nonservice-connected burial benefits in excess of $300.00 and a plot or internment allowance in excess of $749.00 A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1704-3.1706. If a veteran's death is not service connected, a sum, not exceeding $300.00 may be made paid toward funeral and burial expenses of the deceased veteran and the expense of preparing the body and transporting it to the place of burial, subject to certain specified conditions. 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1705(a), 3.1706(a). Also, if the eligible veteran was not buried in a national cemetery, an additional $700.00 is payable for a plot or internment allowance. 38 U.S.C. § 2303(b); 38 C.F.R. § 3.1707. Section 3.1707, in pertinent part, provides that, unless VA has evidence on the date it receives notice of the Veteran's death that the expenses incurred were less, VA will pay the maximum plot or interment allowance specified in 38 U.S.C. § 2303(b)(2) to a claimant who incurred plot or interment expenses relating to the purchase of a burial plot for a deceased veteran if the veteran is buried in a cemetery other than a cemetery described in paragraphs (b)(1) and (b)(3) of this section and the veteran was eligible for a burial allowance under § 3.1705, burial allowance based on non-service-connected death. 38 U.S.C. § 2303(b)(2) currently allows for payment of a sum not exceeding $700.00 as a plot or interment allowance. Here, the appellant was already awarded $300.00 in nonservice-connected burial benefits. This is maximum amount allowable where a veteran's death is not related to service. See 38 U.S.C. § 2302; 38 C.F.R. §§ 3.1705(a), 3.1706(a). The appellant claimed that the Veteran's cause of death is related to his active duty service. See April 2014 Application for Burial Benefits (requesting service-connected burial benefits). Service-connected burial benefits are not warranted as service connection for the cause of the Veteran's death has not been established. See September 2015 Rating Decision. In this regard, the Veteran's death certificate lists his cause of death as cardiac arrest due to pneumonia. See March 2015 Certificate of Death. During his lifetime, the Veteran was service connected for loss of part of skull, brain disease due to trauma, scars, and limited flexion of the forearm. The Veteran's service treatment records show no report of cardiac symptoms or pneumonia. Rather, the Veteran was diagnosed with pneumonia one week before he died. The appellant has not asserted, nor does the evidence suggest, that the Veteran's cause of death is related to his active duty service. See 38 U.S.C. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The appellant was also awarded $745.00 for a plot allowance. The Veteran was not buried in a national cemetery; rather, he was buried at a private cemetery. See April 2014 Application for Burial Benefits. Thus, the maximum amount for a plot allowance is $700.00. See 38 U.S.C. § 2303(b) 38 C.F.R. § 3.1707. As such, the appellant has already received an amount greater than the maximum amount payable. The Board acknowledges the appellant's argument that he incurred costs greater that the amounts he was awarded. However, as explained above, the criteria for awards greater than $300.00 for nonservice-connected burial benefits and $745.00 for a plot or interment allowance simply are not met, despite the fact that the appellant may have incurred costs in excess of those amounts. The legal authority pertaining to the amount of nonservice-connected burial benefits and a plot or interment allowance 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 any additional amounts than those already awarded, the appellant's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (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.