Citation Nr: A21006038 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 210303-139588 DATE: March 18, 2021 ORDER Entitlement to nonservice-connected burial benefits is denied. FINDING OF FACT 1. The Veteran died in November 2020. 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 FINDINGS AND CONCLUSION The Veteran served on active duty from September 1969 to June 1970. He died in November 2020. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2021 Appeals Modernization Act (AMA) decision from the Agency of Original Jurisdiction (AOJ) that considered the evidence of record on that date. The appellant appealed the decision to the Board by filing a timely VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the AOJ as it pertained to the denial of reimbursement of transportation expenses. AMA regulations state that the record closes the date of the AMA decision under the Direct Review Appeal Docket Lane. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. In this case, that date is January 28, 2021. The Board notes that the appellant submitted evidence in support of her claim with her Direct Review Request. As the Board is deciding the claim of entitlement to burial benefits, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The appellant may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board does note, however, that the assertions/evidence provided by the appellant with her Direct Review Request are essentially equitable in nature. She stated that the Veteran was hospitalized by VA until November 13, 2020. Because he was not allowed visitors due to COVID restrictions and did not wish to die alone in the hospital, she arranged for his discharge from the VA hospital on November 13, 2020. She stated that he was transported to his home by ambulance and died two days later on November 15, 2020. The Secretary of VA, but not the Board, has discretionary power to provide equitable relief, and the appellant is at liberty to apply to the Secretary and request that he exercise his discretionary authority to grant this claim on an equitable basis. See 38 U.S.C. § 503; 38 C.F.R. § 2.7. Authority to award equitable relief under 38 U.S.C. § 503(a) is committed to the sole discretion of the Secretary. The Board is without jurisdiction to consider matters which are solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). The Board offers no opinion on this matter, but advises the appellant that if she wishes to petition for equitable relief, she may file such a petition with the Secretary. 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). As stated above, the appellant has been found to have incurred these costs. In her 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. 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. Finally, it is uncontroverted that the Veteran died at his residence. See November 2020 Certificate of Death. (Continued on the next page)   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 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.