38 C.F.R. § 3.1705

Burial allowance based on non-service-connected death

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(a) General rule. VA will pay the maximum burial allowance specified in 38 U.S.C. 2303 for the burial and funeral expenses of a veteran described in paragraph (b) of this section, unless VA has evidence on the date it receives notice of the veteran's death that the expenses incurred were less than that amount. Payment of the non-service-connected burial allowance is subject to other applicable regulations in subpart B of this part.

(b) Eligibility. A burial allowance is payable under this section for a veteran who, on the date of death:

(1) Was receiving VA pension or disability compensation;

(2) Would have been receiving disability compensation but for the receipt of military retired pay; or

(3) Had pending any of the following claims:

(i) An original claim for pension or disability compensation, and the evidence in the claims file on the date of death and any evidence received under paragraph (d) of this section is sufficient to grant pension or disability compensation effective before the date of death; or

(ii) A claim to reopen a previously denied pension or disability compensation claim, based on new and material evidence, and the evidence in the claims file on the date of the veteran's death and any evidence received under paragraph (d) of this section is sufficient to reopen the claim and grant pension or disability compensation effective before the date of death; or

(iii) A claim for which a person would be eligible to substitute for the deceased veteran under 38 U.S.C. 5121A, Substitution in case of death of claimant, and that claim, once processed to completion by the substitute, results in the grant of pension or disability compensation effective before the date of death.

(c) Evidence in the claims file on the date of the veteran's death means evidence in VA's possession on or before the date of the deceased veteran's death, even if such evidence was not part of the VA claims file on or before the date of death.

(d) Requesting additional evidence. If the veteran had either an original claim or a claim to reopen pending on the date of death and there is sufficient evidence in VA's possession to support an award of compensation or pension prior to the date of death, but VA determines that additional evidence is needed to confirm that the deceased would have been entitled prior to death, VA will request such evidence. If VA does not receive such evidence within 1 year after the date of the request, it will deny the claim.

(e) Additional benefits available based on non-service-connected death. In addition to the non-service-connected burial allowance authorized by this section:

(1) VA may pay the transportation benefit under § 3.1709; and

(2) VA may pay the plot or interment allowance under § 3.1707.

(Authority: 38 U.S.C. 2303, 2304, 2308) Cross Reference: § 3.1(i), for the definition of “State”.[79 FR 32658, June 6, 2014, as amended at 89 FR 78254, Sept. 25, 2024]

Notes of Decisions

Cited in 10 cases (3 in the last 5 years), 2015–2022 · leading case: 15-08 051 (Board of Vet. App. 2018).

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15-08 051 (Board of Vet. App. 2018). · cites it 2× “1600 (b) (now 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…”

191016-37835 (Board of Vet. App. 2019). · cites it 2× “Therefore, the claim would be considered pursuant to the regulations regarding nonservice-connected burial benefits as set forth in 38 C.F.R. § 3.1705 . This regulation provides that a burial allowance is payable for a veteran who, on the date of his or her death: (1) was…”

191213-113074 (Board of Vet. App. 2021). · cites it 2× “§ 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…”

11-08 888 (Board of Vet. App. 2015). · cites it 2× “The new regulation regarding nonservice-connected burial benefits is found at 38 C.F.R. § 3.1705 . That regulation provides that a burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have…”

10-05 468 (Board of Vet. App. 2015). · cites it 2× “The new regulation regarding nonservice-connected burial benefits is found at 38 C.F.R. § 3.1705 . That regulation provides that a burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have…”

200113-63837 (Board of Vet. App. 2020). “Nonservice-connected burial benefits are governed by the regulation at 38 C.F.R. § 3.1705 . That regulation provides that a burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been…”

Perry v. Wilkie, 983 F.3d 484 (Fed. Cir. 2020). “at *3 (citing 38 C.F.R. § 3.1705 (b)). The Veterans Court found that Mr.”

191202-46870 (Board of Vet. App. 2020). “§ 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.”

Kriner v. McDonough (Fed. Cir. 2022). “38 C.F.R. § 3.1705 (b); see 38 C.F.R. § 3.”

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