Citation Nr: 21031219 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-34 144 DATE: May 20, 2021 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDINGS OF FACT 1. The Veteran died in September 2014. 2. The Veteran was not receiving any VA compensation or pension benefits at the time of his death. 3. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran's death which was ultimately granted. 4. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 5. The Veteran's body was not unclaimed and the appellant incurred expenses related to the Veteran's burial. 6. 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 nonservice-connected 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 November 1980 to November 1984. He died in September 2014. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Philadelphia, Pennsylvania. The appellant requested a hearing before the Board, which was scheduled for September 2019, but she failed to appear. The appellant has not requested that the hearing be rescheduled, nor has she submitted good cause for this absence. Therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). In October 2020, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Entitlement to nonservice-connected burial benefits 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). In her claim, the appellant stated that she incurred these costs. In the claim, the appellant expressly stated that she was not claiming that the Veteran's death was related to service. Therefore, the Board will consider the claim 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 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 their 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. In this regard, the Veteran had submitted a claim for pension prior to his death. However, the record reflects that the Veteran's active duty service was during peacetime and not during a period of war. See 38 U.S.C. § 1521(j). Therefore, an original claim for pension which would have been ultimately granted was not pending at the time of his death. 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 unclaimed. It is uncontroverted that the Veteran died at the Carolinas Medical Center. See September 2014 Certificate of Death. Although the appellant asserts that the Veteran was transferred to Carolinas Medical Center under VA authorization and at VA expense, there is no evidence that the Veteran was admitted to Carolinas Medical Center with prior authorization and at VA expense. See September 2014 Carolinas HealthCare System Admission Record (reflecting the Veteran was admitted under "self-pay"); Report of General Information, dated March 13, 2021 ("VAMC contact notes that the Veteran was not hospitalized by VA nor traveling under proper authority and at VA expense for the purpose of examination, treatment or care at the time of his death."). Accordingly, the claim must be denied. The Board is sympathetic 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 Stedman, Michael 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.