[Federal Register Volume 79, Number 109 (Friday, June 6, 2014)]
[Rules and Regulations]
[Pages 32653-32662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13230]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-A082


Burial Benefits

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations governing entitlement to monetary burial benefits, which 
include burial allowances for service-connected and non-service-
connected deaths, a plot or interment allowance, and reimbursement of 
transportation expenses. As amended, the regulations establish rules to 
support VA's automated payment of burial allowances to surviving 
spouses, conversion to flat-rate burial and plot or interment 
allowances that are equal to the maximum benefit authorized by law, and 
priority of payment to non-spouse survivors. The purpose of these 
regulations is to streamline the program and make it easier for 
veterans and their families to receive the right benefits and meet 
their expectations for quality, timeliness, and responsiveness.

DATES: Effective Date: The final rule is effective July 7, 2014.
    Applicability Date: This final rule applies to claims for burial 
benefits pending on or after July 7, 2014.

FOR FURTHER INFORMATION CONTACT: Ms. Damali Mason, Pension and 
Fiduciary Service (21PF), Veterans Benefits Administration, Department 
of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420; 
(202) 632-8852. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on December 18, 2013 (78 FR 76574), VA proposed revising its 
regulations governing eligibility for and payment of monetary burial 
benefits. The 30-day public comment period ended on January 17, 2014. 
VA received nine comments from interested individuals and 
organizations. The comments generally concerned priority of payments 
and who is a proper claimant for burial benefits. The comments are 
discussed below. Based on the rationale described in this document and 
in the notice of proposed rulemaking (NPRM), VA adopts the proposed 
rule as revised in this document.

Section 3.1700--Types of VA Burial Benefits

    In proposed Sec.  3.1700(b), we defined ``burial'' for purposes of 
describing the types of services that VA has authority to pay for as a 
burial benefit. VA liberally defined burial as including, but not 
limited to, all legal methods for disposing of a deceased person's 
remains. One commenter recommended that VA include alkaline hydrolysis 
within the proposed definition of burial. According to the commenter, 
alkaline hydrolysis is a water-based dissolution process for human 
remains that uses alkaline chemicals to accelerate natural 
decomposition. To the extent that alkaline hydrolysis is a lawful 
method for disposing of human remains in a particular State, the broad 
language in proposed Sec.  3.1700(b), ``all the legal methods,'' would 
necessarily include this method of disposition in VA's definition of 
burial. Because alkaline hydrolysis, where lawful, is a service that VA 
would pay for as a burial benefit under the language of proposed Sec.  
3.1700(b), we make no change to the proposed rule because it is 
unnecessary.
    One commenter supported the cross-references in proposed Sec.  
3.1700(c) to other benefits and services related to memorialization or 
interment because they reflect the options available to families. The 
commenter also approved of the specific reference to both 
``memorialization'' and ``interment,'' which are two distinct concepts, 
as discussed in the preamble of the proposed rule. VA appreciates the 
commenter's support for these changes.

Section 3.1702--Persons Who May Receive Burial Benefits; Priority of 
Payments

    Under 38 CFR 3.1601, VA accepted a claim for burial benefits from 
the funeral director, any person who used his or her funds to pay 
burial or funeral expenses, or the executor or administrator of the 
estate of the veteran. Those rules did not allow VA to automate or 
expedite the payment of these small, one-time benefit payments to 
survivors who generally have an immediate need for supplemental 
financial assistance after the veteran's death. To facilitate efficient 
processing of claims, we proposed inSec.  3.1702(a) to automate certain 
payments to surviving spouses based upon information in VA systems as a 
first priority and in Sec.  3.1702(b) to establish a priority of 
payments for other eligible individuals.
    We received several comments regarding the payment priority in 
proposed Sec.  3.1702, whereby VA would automatically pay the burial 
allowance to an eligible surviving spouse in conjunction with the 
month-of-death benefit in 38 CFR 3.20, without the need for a separate 
claim, and regardless of a claim for the same benefit made by other 
claimants. If there were no surviving spouse, child, or parent, we 
stated that VA would pay an executor or administrator of the veteran's 
estate based upon the executor's or administrator's claim, or in the 
case of an unclaimed veteran, a funeral service provider based upon the 
provider's claim. As a result of this revised priority of payment, VA 
would no longer prioritize payment to funeral directors or other 
service providers.
    One commenter stated that benefits should not be paid to funeral 
homes and recommended that VA pay burial benefits directly to 
beneficiaries for use in paying for the burial. The commenter went on 
to state that, ``once the process is automated and simplified, funeral 
homes will be natural beneficiaries of faster benefit payment.'' 
Another commenter stated that the benefit

[[Page 32654]]

``should be paid upfront so the family can use it right away.''
    Two commenters, both funeral service trade and business 
associations, advocated that VA rewrite Sec.  3.1702 in order to 
prioritize payment to funeral service providers. The commenters 
recommended that funeral homes be given priority because they are the 
actual providers of burial services. One of the trade groups suggested 
an alternate approach whereby VA would first pay burial providers where 
services have been rendered or previously contracted. Both commenters 
reasoned that proposed Sec.  3.1702 would further delay funeral service 
providers being paid for the goods and services they have already 
provided. VA disagrees.
    As we mentioned in the NPRM, the priority of payment provisions 
will enable VA to automatically pay annually the basic burial allowance 
($300 or $2,000) to approximately 62,000 eligible surviving spouses 
shortly after being notified of a veteran's death. In order to 
establish an automatic payment process, VA needs to use existing data 
of record, which would be a veteran's dependent information. Although 
this policy change will reduce those instances in which a funeral 
service provider will be a proper claimant for VA burial benefits, it 
will ultimately place the survivors and estates of deceased veterans in 
a better financial position to pay funeral service providers in a 
timely manner. VA also notes that its monetary burial benefits 
generally do not cover the entire cost of a burial and funeral, which 
means that funeral service providers' current business model already 
includes collection of charges from survivors and other individuals who 
pay for the services. Further, the NPRM and effective date provisions 
of this final rule provide service providers with notice that they will 
no longer be afforded priority of payment and they may change their 
business practices accordingly. Finally, in cases where the deceased 
veteran has neither survivors nor an estate, such as when a deceased 
veteran's remains are unclaimed, Sec.  3.1702(b)(3) provides that the 
person or entity that provided burial services is a proper claimant. In 
those circumstances, if a funeral service provider incurred costs for 
the funeral and burial of the remains of an unclaimed and intestate 
veteran, VA would pay that funeral service provider as a proper 
claimant. Therefore, we make no changes to Sec.  3.1702 based on 
comments regarding priority of payment.
    As to a comment that VA should permit the assignment of benefits by 
funeral homes to third-party providers, federal law precludes 
assignment of VA benefits. Section 5301(a)(1) of title 38, United 
States Code, provides in part that ``[p]ayments of benefits due or to 
become due under any law administered by the Secretary [of Veterans 
Affairs] shall not be assignable except to the extent specifically 
authorized by law.'' No statutory authority currently exists permitting 
the assignment of VA burial benefits. Accordingly, VA makes no change 
based on this comment.
    As to one commenter's concerns about the timeliness of 
reimbursement for burial services already provided, VA anticipates that 
the proposed rules as a whole will increase the timeliness of all 
burial claims by reducing the evidentiary requirements for deciding all 
claims pending on the effective date of the final rule. Under proposed 
Sec.  3.1703(b), apart from proof of death and a claim filed on a VA 
form, VA will generally require from a claimant only a statement that 
he/she incurred burial, plot or interment, or transportation costs 
rather than the itemized receipts and bills required under the current 
rule. VA will apply these reduced evidentiary requirements to all 
claims pending on the effective date of the final rule, which will 
decrease processing time to the benefit of all claimants for monetary 
burial benefits. VA makes no change based on this comment.
    One commenter recommended that VA recognize all legal marriages for 
purposes of burial benefits and urged VA to incorporate in Sec.  3.1702 
``a place of celebration rule'' for burial benefits only. Citing 
language in the NPRM that ``[t]he law provides VA with discretion to 
prescribe who may be properly paid burial benefits,'' the commenter 
asserted that VA's burial statutes do not restrict nor require payment 
to a specific person or group but rather to ``such person as the 
Secretary prescribes.'' Although sections 101 and 103 of title 38, 
United States Code, limit the definition of the term ``spouse,'' the 
commenter asserts that the broad authority in section 2302 ``permits a 
more expansive determination of eligible recipients here.'' The 
commenter also noted that a place of celebration rule would be 
consistent with other definitions adopted by other agencies following 
the Supreme Court's decision in United States v. Windsor, No. 12-307, 
133 S. Ct. 2675 (2013).
    The same commenter also recommended that VA further revise proposed 
Sec.  3.1702(b)(1) to allow living veterans to designate any 
beneficiary of their choice for burial benefits. By permitting 
designation of such a beneficiary, the commenter states that VA would 
enable veterans to appoint a representative that ``more closely matches 
the reality of their relational ties.''
    The same commenter recommended that VA revise proposed Sec.  
3.1702(b) to include a ``legally recognized domestic partner or civil 
union partner.'' According to the commenter, states such as Colorado, 
Oregon and Nevada do not allow same-sex marriages, but do recognize 
civil unions or domestic partnerships. The commenter asserts that VA 
can, with minor revisions to Sec.  3.1702(b), permit payment of burial 
benefits to a deceased veteran's survivor from a civil union or 
domestic partnership.
    Current section 101(3) and (31) of title 38, U.S.C., limits the 
definitions of ``surviving spouse'' and ``spouse'' for purposes of 
title 38 to only a person of the opposite sex of the veteran. The 
language in these provisions is substantively identical to the language 
in section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, which 
the Supreme Court in Windsor declared to be unconstitutional because it 
discriminates against legally-married, same-sex couples. On September 
4, 2013, the United States Attorney General informed Congress that the 
President had directed the Executive Branch to cease enforcement of 
sections 101(3) and (31) of title 38, U.S.C., to the extent that those 
provisions preclude the recognition of legally-valid marriages of same-
sex couples. Pursuant to the President's direction, VA is no longer 
enforcing the section 101(3) and (31) provisions to the extent that 
they require a ``spouse'' or a ``surviving spouse'' to be a person of 
the opposite sex. Unlike most other Federal agencies, VA is required by 
statute to use a place-of-residency rule to determine whether a 
veteran's marriage is recognized for the purpose of veterans' benefits. 
Specifically, 38 U.S.C. 103(c) requires that ``[i]n determining whether 
or not a person is or was the spouse of a veteran, their marriage shall 
be proven as valid for the purposes of all laws administered by the 
Secretary according to the law of the place where the parties resided 
at the time of the marriage or the law of the place where the parties 
resided when the right to benefits accrued.'' Thus, VA would recognize 
a surviving spouse, including a same-sex surviving spouse, whose 
marriage to a veteran is recognized under the section 103(c) provision. 
VA is working with the Department of Justice to address this statutory 
provision in light of recent legal developments.

[[Page 32655]]

    As explained previously, in order to establish an automatic payment 
process, VA needs to use existing data of record, which would be a 
veteran's spouse of record. To make automatic payments to any other 
individual would require VA to create a pre-death designation process 
as suggested by the commenter. The commenter's proposed pre-death 
designation of burial benefits would complicate rather than simplify 
and streamline adjudication of these benefits. To implement the 
suggestion would require that VA establish and maintain a process for 
documenting a pre-death benefits designation and, in the case of a 
conflict, for adjudicating a deceased veteran's designation of 
beneficiary. In the context of a program that makes, on average in a 
particular year, over 139,000 relatively small one-time payments, the 
burden associated with establishing and maintaining such a process is 
inconsistent with the purpose of this regulation.
    With respect to the commenter's suggestion to include individuals 
in relationships that are recognized under state law but not recognized 
by VA under section 103(c), such as domestic partnerships, civil 
unions, and other formal relationships, within the priority of payment 
list under Sec.  3.1702(b), we agree with the commenter that VA has 
authority under section 2302 to expand the class of eligible 
recipients. Accordingly, to clarify that we do not intend to exclude 
individuals who had meaningful relationships with veterans but do not 
meet the requirements of section 103(c), we have revised Sec.  
3.1702(b) to also prescribe payment of burial benefits to the survivor 
of a legal union between the deceased veteran and the survivor that is 
not otherwise covered by Sec.  3.1702(b)(1)(i) regarding surviving 
spouses. We define ``legal union'' to mean a formal relationship 
between the decedent and the survivor that existed on the date of the 
veteran's death, was recognized under the law of the State in which the 
couple formalized the relationship, and was evidenced by the State's 
issuance of documentation memorializing the relationship.
    Consistent with the goal of streamlining adjudication, we have also 
revised the rule to provide that, except for automatic payments to 
surviving spouses under Sec.  3.1702(a), which take precedence over all 
other categories of individuals, VA will pay the first-to-file of the 
individuals listed in Sec.  3.1702(b). In the proposed rule, the first-
to-file rule applied only within a specific priority category. By 
implementing a first-to-file rule across categories of individuals, the 
individual who takes initiative to file the claim and certify that he 
or she incurred burial, plot or interment, or transportation costs of 
the veteran (see Sec.  3.1703(b)(1)(iii)), will be paid. In addition, 
such a rule will aid in streamlining adjudication because when VA 
receives a claim VA will not need to determine whether any individuals 
in a higher priority group exist.
    In the course of reviewing the priority of payments under Sec.  
3.1702(b), we noticed that the use of the term ``child'' would not 
include an adult child of a deceased veteran given the statutory 
definition of ``child'' at 38 U.S.C. 101(4), which includes only minor 
children, children who became permanently incapable of self-support 
before the age of eighteen, or children under the age of twenty-three 
if pursuing a course of instruction at an approved educational 
institution. Therefore, we add the phrase ``regardless of age,'' after 
the word ``child'' in Sec.  3.1702(b)(1)(ii).
    Finally, regarding the priority provisions in Sec.  3.1702(b), VA 
does not intend to apply the provisions to invalidate claims that are 
pending on the effective date of this final rule, such as those that VA 
received from funeral homes. Accordingly, we revise paragraphs (a) and 
(b) to make it clear that automatic payments to surviving spouses and 
the priority of payments provision apply to claims VA receives on or 
after the effective date of the final rule, July 7, 2014. In addition, 
we revise Sec.  3.1702 to add paragraph (c), which, with two minor 
reference changes, restates current Sec.  3.1601(a)(1) and (a)(2) for 
claims VA received before July 7, 2014.
    Finally, regarding Sec.  3.1702, a commenter pointed out that the 
proposed regulation did not expressly address the possibility of a 
surviving spouse receiving an automatic non-service-connected burial 
allowance under Sec.  3.1702(a) but later establishing eligibility for 
the more generous service-connected burial allowance provided under 
Sec.  3.1704. To remedy this, the commenter recommended that VA insert 
clarifying language in Sec.  3.1702(a). VA analyzed available data 
prior to initiating this rulemaking and determined that the largest 
portion of deaths that are ultimately determined to be service-
connected, are those in which the Veteran had a total service-connected 
disability rating at the time of death. The surviving spouses of those 
Veterans will receive the automated service-connected burial allowance 
payment. In proposing this regulation, it was VA's intent that a 
surviving spouse who received an automatic non-service-connected burial 
allowance could claim, and if eligible receive, the difference between 
the non-service-connected and the service-connected burial allowances. 
We agree with the commenter and revise Sec.  3.1702(a) to include a 
reference to ``the service-connected burial allowance under Sec.  
3.1704''.

Section 3.1703--Claims for Burial Benefits

    In proposed Sec.  3.1703(a)(2), we specified that claims for the 
non-service connected burial allowance based on a corrected character 
of discharge must be filed within two years of the date that the 
service department corrected the discharge record. One commenter 
expressed support for VA's decision to provide burial payments to 
survivors of veterans whose character of discharge had changed. VA 
makes no change based on this comment.

Section 3.1707--Plot or Interment Allowance for Burial in a State 
Veterans or Other Cemetery

    One commenter, citing preamble language from the NPRM describing 
the additional State plot or interment allowances VA pays based on 
service-connected death, suggested that VA modify proposed Sec.  3.1707 
and Sec.  3.1704(c)(2) (referring to Sec.  3.1707(a)) to permit VA to 
pay tribal cemeteries the plot or interment allowance when veterans 
eligible for burial in a national cemetery are buried in tribal 
cemeteries. Proposed Sec.  3.1707(c) implements 38 U.S.C. 2303(b)(2), 
which provides for a plot or interment allowance for burials in other 
than State veterans cemeteries. This would include otherwise eligible 
burials in tribal cemeteries. Proposed Sec.  3.1704 implements 38 
U.S.C. 2307, which specifically provides that payments of service-
connected death burial and funeral expenses under that section are ``in 
lieu of'' the plot or interment allowance for burial in other than a 
State veterans cemetery under 38 U.S.C. 2303(b)(2). However, as 
expressed in proposed Sec.  3.1704(c)(2), VA has authority to pay the 
plot or interment allowance for burial in a State cemetery under 38 
U.S.C. 2303(b)(1). For this reason, proposed Sec.  3.1704(c)(2) 
accurately reflects the statutory authority found in 38 U.S.C. 2307. 
Therefore, we make no changes based on this comment.
    One commenter recommended that VA rewrite Sec.  3.1707(b)(3)(ii) 
because paragraphs (A) and (B) appear to grant eligibility for plot or 
interment allowance based on reserve component service on a less 
stringent basis than National Cemetery Administration (NCA) Directive 
3210/1, ``Eligibility Requirements,'' which provides guidance for 
determining eligibility for

[[Page 32656]]

burial in a VA national cemetery as authorized under 38 U.S.C. 2402. 
The commenter misreads the proposed rule. VA derived Sec.  
3.1707(b)(3)(ii)(A) and (B) from current 38 CFR 3.1604(d)(1)(ii), which 
it published in 2001 (66 FR 48558, 48559) to implement section 333 of 
Public Law 106-419, the Veterans Benefits and Health Care Improvement 
Act of 2000 (the Act). The allowance under 38 U.S.C. 2303(b) was 
previously payable only if the cemetery, or section of the cemetery, 
was used solely for the interment of persons who were eligible for 
burial in a national cemetery. Section 333 of the Act amended 38 U.S.C. 
2303(b) to include cemeteries, or sections of cemeteries, that are also 
used for the interment of persons who were members of a reserve 
component of the Armed Forces not otherwise eligible for burial in a 
national cemetery or who were former members of such a reserve 
component not otherwise eligible for burial in a national cemetery who 
were discharged or released from service under conditions other than 
dishonorable. The reference to reserve members in proposed Sec.  
3.1707(b)(3)(ii)(A) and (B) relates to the criteria for the cemetery or 
section of a cemetery in which the individual is buried, and is 
substantively a repetition of the corresponding statutory provision in 
38 U.S.C. 2303(b)(1)(A) and (B). This plot or interment allowance 
remains available only to individuals eligible for burial in a national 
cemetery under 38 U.S.C. 2402, as specified in proposed Sec.  
3.1707(a), General eligibility, which provides that VA will pay the 
allowances described in that section ``[f]or a veteran who was eligible 
for burial in a national cemetery under 38 U.S.C. 2402, but was not 
buried in a national cemetery or other cemetery under the jurisdiction 
of the U.S.'' Because proposed Sec.  3.1707 accurately reflects the 
eligibility criteria established in 38 U.S.C. 2303(b), VA makes no 
changes based on this comment.

Section 3.1708--Burial of the Remains of a Veteran Whose Remains Are 
Unclaimed

    We received three comments about proposed Sec.  3.1708, which would 
govern burial benefits for veterans whose remains are unclaimed. One 
commenter expressed concern with Sec.  3.1708(d), which assigns 
responsibility for making burial arrangements for unclaimed veterans 
with the Director of the VA Regional Office in the area in which the 
veteran died. The commenter stated that regional offices did not have 
enough experience in such matters and needed training in this area. We 
will not make any changes to the rule at this time based upon the 
comments. However, we will carefully consider whether regional office 
directors need additional training regarding burial arrangements for 
unclaimed veterans in connection with the implementation of the final 
rule.
    Another commenter supported the provisions in proposed Sec.  
3.1708, which do not include the wartime service and discharge due to 
disability requirements in current Sec.  3.1600(b)(3). As mentioned in 
the preamble, VA eliminated these requirements based on amendments to 
38 U.S.C. 2302(a) enacted in section 104 of Public Law 112-260. The 
same commenter also expressed concern as to whether proposed Sec.  
3.1708 would make funeral homes that provided funeral services for 
unclaimed veterans eligible claimants for purposes of reimbursement of 
funeral, burial, and transportation expenses. Proposed Sec.  
3.1702(b)(2) provided that VA will pay the ``person or entity'' that 
provided burial services for the remains of an unclaimed veteran. To 
the extent that a funeral home provided burial services for the remains 
of an unclaimed veteran, it is an eligible ``entity'' under Sec.  
3.1702(b)(2). However, VA agrees that the rule should be revised to 
clarify that VA will also pay transportation expenses in such cases. 
Therefore, we revise Sec.  3.1702(b)(3) to expressly include 
``transportation subject to the limitations prescribed in Sec. Sec.  
3.1708 and 3.1709.''
    Another commenter suggested that VA revise proposed Sec.  3.1708(c) 
to include transportation to a State veterans cemetery or tribal 
cemetery. Proposed Sec.  3.1708(c) provided that VA may reimburse a 
claimant under Sec.  3.1709 for the expenses of transporting the 
unclaimed remains of a veteran to a national cemetery. VA's authority 
to reimburse a claimant for transportation expenses associated with 
unclaimed remains is limited by law to ``the cost of transportation of 
the deceased veteran . . . for burial in a national cemetery.'' 38 
U.S.C. 2308(a). Further, ``[s]uch payment shall not exceed the cost of 
transportation to the national cemetery nearest the veteran's last 
place of residence in which burial space is available.'' Id. Because 38 
U.S.C. 2308 limits reimbursement authority to transportation costs for 
burial in a national cemetery, VA is unable to expand through 
rulemaking reimbursement eligibility for transportation to State 
veterans and tribal cemeteries. Accordingly, VA makes no changes based 
on this comment.
    Proposed Sec.  3.1708(d) provided that when VA determines that a 
veteran's remains are unclaimed, the regional office director in the 
area in which the veteran died is responsible for making arrangements 
for burial in a national cemetery or cemetery satisfying the 
requirements of ``paragraph (a) of Sec.  3.1707.'' The citation to 
``paragraph (a)'' in proposed Sec.  3.1708(d) is incorrect because 
paragraph (b) of proposed Sec.  3.1708(d) is the paragraph containing 
the cemetery requirements. Accordingly, we revise Sec.  3.1707(d) to 
correct this error. In addition, we note that under Sec.  3.1708(d), as 
revised, a regional office director may make burial arrangements for 
the unclaimed remains of a veteran at a cemetery satisfying the 
requirements of Sec.  3.1707(b), which would include a State veterans 
cemetery. The statutory authority for a burial allowance under proposed 
Sec.  3.1708 is 38 U.S.C. 2302, which provides for ``a sum not 
exceeding $300 . . . to cover the burial and funeral expenses of the 
deceased veteran and the expense of preparing the body and transporting 
it to the place of burial.'' For the reasons explained above, VA would 
not be authorized to pay for transportation under 38 U.S.C. 2308 when 
transportation is not to a national cemetery.

Section 3.1709--Transportation Expenses for Burial in a National 
Cemetery

    We received two comments regarding proposed Sec.  3.1709, which 
implements VA's authority to reimburse transportation expenses 
associated with burial in a national cemetery. As discussed in the 
NPRM, except for new provisions authorizing VA to reimburse claimants 
for the transportation of unclaimed veterans remains to national 
cemeteries, proposed Sec.  3.1709 was largely unchanged from current 
burial regulations.
    One commenter ``strongly supported'' the simplified language in 
proposed Sec.  3.1709(d)(2) stating that VA would reimburse any 
reasonable transportation expense.
    Another commenter suggested that VA consider amending proposed 
Sec.  3.1709(a), (b), and (c) to include State and tribal veterans 
cemeteries. Again, VA's authority to reimburse a claimant for 
transportation expenses associated with unclaimed remains is limited by 
law to ``the cost of transportation of the deceased veteran . . . for 
burial in a national cemetery'' and such payment ``shall not exceed the 
cost of transportation to the national cemetery nearest the veteran's 
last place of residence in which burial space is available.'' 38 U.S.C. 
2308(a). Accordingly, paragraph (a) of Sec.  3.1709

[[Page 32657]]

provides that VA will, subject to limits, reimburse the costs of 
transportation of veterans' remains to a national cemetery. Paragraph 
(b) prescribes specific eligibility criteria for transportation 
expenses, and paragraph (c) establishes a maximum amount for 
reimbursement by providing that the amount payable will not exceed the 
costs of transporting the remains to the national cemetery nearest the 
veteran's last place of residence in which burial space is available. 
Because section 2308 limits reimbursement authority to transportation 
costs for burial in a national cemetery, VA is unable to use this 
rulemaking to expand its reimbursement authority to cover the cost of 
transportation of a veteran's remains to a State or tribal cemetery. VA 
makes no changes based on this comment.
    In the course of considering comments regarding proposed Sec.  
3.1709, VA noticed that the reference in proposed Sec.  3.1709(c) to 
``paragraph (e) of this section'' should be to ``paragraph (d) of this 
section,'' because Sec.  3.1709 contains no paragraph (e). We therefore 
revised Sec.  3.1709 accordingly.

General Matters

    In the background section of the preamble to the proposed rule, we 
explained that, for purposes of efficiency, we proposed to adopt a 
flat-rate payment process where permitted by law based on a presumption 
that the expenses incurred were at least equal to the statutory 
maximum, unless VA has evidence to the contrary on the date it receives 
notice of the veteran's death. One commenter agreed with the flat-rate 
principle and suggested that VA ``just come up with two different 
dollar amounts.'' However, the statutory maximum burial rates are 
prescribed in statutes, e.g., 38 U.S.C. 2302 prescribes a $300 maximum 
payment. As a result, VA cannot through regulations establish new 
maximum rates. We make no changes based on this comment.
    Another commenter, ``strongly support[ed] the ability of the VA to 
authorize and automate the payment of burial benefits at the statutory 
maximum.'' Recognizing that survivors face both emotional and economic 
loss, the same commenter also stated that the proposed rule ``would 
allow more eligible survivors to receive the burial benefits 
efficiently and painlessly.''
    One commenter, a funeral services trade association, expressed 
concern with the effects of 1990 legislation amending the National 
Cemeteries Act of 1973, which limited plot and marker allowances for 
veterans who preferred interment in non-governmental cemeteries. The 
commenter stated that the ``pre-1990 plot and marker allowances were a 
win/win benefit that should be restored.'' As the commenter 
acknowledged, such a comment is beyond the scope of this rulemaking. 
Accordingly, we make no changes to the proposed rule.

Paperwork Reduction Act

    The Office of Management and Budget (OMB) assigns a control number 
for each collection of information it approves. Except for emergency 
approvals under 44 U.S.C. 3507(j), VA may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number. In the 
proposed rule, we stated that proposed Sec.  3.1703 constitutes a 
collection of information under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521). Specifically, except for 
automated burial benefit payments under Sec.  3.1702(a), it requires an 
individual seeking burial benefits to file a claim with VA that 
includes proof of the veteran's death and a statement certifying that 
the individual incurred burial, plot or interment, or transportation 
costs of the deceased veteran. The collection of information is 
currently approved by OMB and assigned OMB control number 2900-0003. We 
display the control number under the applicable regulation text in this 
final rule. However, because VA determined that provisions in the 
proposed rule, including automated burial payments and reduced 
evidentiary requirements, would reduce the information collection 
burden, VA submitted a copy of the proposed rule to OMB for its review 
of the collection of information, and requested public comments on the 
collection of information provisions contained in Sec.  3.1703.
    We received one comment on the proposed collection of information. 
One commenter stated that ``[f]or such as [sic] small monetary benefit, 
the application should be very simple.'' We read this as an endorsement 
of our elimination of the application for certain burial claims, our 
elimination of several questions on the application, and the reduced 
collection burden for applicants. We make no changes to the collection 
based on this comment.
    Summary of collection of information: The proposed rule at Sec.  
3.1703 contains collections of information under the Paperwork 
Reduction Act (44 U.S.C. 3501-3521) concerning applications for VA 
burial benefits.
    Description of the need for information and proposed use of 
information: This information is needed to determine eligibility for VA 
monetary burial benefits.
    Estimated number of respondents per year: 150,000.
    Estimated frequency of responses per year: On occasion.
    Estimated total annual reporting and recordkeeping burden: 37,500 
hours.
    VA has sent OMB the modified information collection requirement for 
this final rule under the previously assigned OMB control number, 2900-
0003.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). Although this final rule will affect some small entities, 
specifically funeral homes, it will not have a significant economic 
impact on those entities. Under current regulations, the funeral home 
engaged by a deceased veteran's survivor to handle the veteran's burial 
may seek direct reimbursement from VA for certain expenses in lieu of 
collecting payment from the survivor. To facilitate automation of VA's 
burial benefit payments, this final rule will discontinue direct 
payment of a survivor's burial benefits to a funeral home. While this 
change might create some additional administrative burden for funeral 
homes, it will not have a significant economic impact under the 
Regulatory Flexibility Act.
    VA's monetary burial benefits generally do not cover the full cost 
of a burial and funeral. Accordingly, under current regulations, 
funeral homes collect a small portion of the total charges to the 
veteran's survivor from VA and the remainder directly from the 
survivor. Under this final rule, funeral homes will use the same 
general business model but collect the total charges for the services 
they provide from the survivor. Also, surviving spouses will have VA 
burial benefits available for payment to funeral homes shortly after 
notifying VA of the veteran's death. Therefore, pursuant to 5 U.S.C. 
605(b), this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits

[[Page 32658]]

(including potential economic, environmental, public health and safety 
effects, and other advantages; distributive impacts; and equity). 
Executive Order 13563 (Improving Regulation and Regulatory Review) 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. Executive 
Order 12866 (Regulatory Planning and Review) defines a ``significant 
regulatory action'' requiring review by OMB unless OMB waives such 
review, as ``any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined to be a significant regulatory action under the 
Executive Order because it is likely to result in a rule that may raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's Web site at 
http://www1.va.gov/orpm/, by following the link for ``VA Regulations 
Published.''

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for the programs affected by this document are 64.100, 
Automobiles and Adaptive Equipment for Certain Disabled Veterans and 
Members of the Armed Forces; 64.101, Burial Expenses Allowance for 
Veterans; 64.102, Compensation for Service-Connected Deaths for 
Veterans' Dependents; 64.104, Pension for Non-Service-Connected 
Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, 
and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; 64.110, 
Veterans Dependency and Indemnity Compensation for Service-Connected 
Death; 64.115, Veterans Information and Assistance; and 64.127, Monthly 
Allowance for Children of Vietnam Veterans Born with Spina Bifida.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Mr. Jose D. 
Riojas, Chief of Staff, Department of Veterans Affairs, approved this 
document on June 2, 2014, for publication.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Pensions, Veterans.

    Dated: June 3, 2014.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.
    For the reasons set out in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 3 as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority:  38 U.S.C. 501(a), unless otherwise noted.


Sec.  3.954  [Removed]

0
2. Remove Sec.  3.954.

0
3. Revise subpart B to read as follows:
Subpart B--Burial Benefits

Burial Benefits: General

3.1700 Types of VA burial benefits.
3.1701 Deceased veterans for whom VA may provide burial benefits.
3.1702 Persons who may receive burial benefits; priority of 
payments.
3.1703 Claims for burial benefits.

Burial Benefits: Allowances & Expenses Paid by VA

3.1704 Burial allowance based on service-connected death.
3.1705 Burial allowance based on non-service-connected death.
3.1706 Burial allowance for a veteran who died while hospitalized by 
VA.
3.1707 Plot or interment allowances for burial in a State veterans 
cemetery or other cemetery.
3.1708 Burial of a veteran whose remains are unclaimed.
3.1709 Transportation expenses for burial in a national cemetery.

Burial Benefits: Other

3.1710 Escheat (payment of burial benefits to an estate with no 
heirs).
3.1711 Effect of contributions by government, public, or private 
organizations.
3.1712 Effect of forfeiture on payment of burial benefits.
3.1713 Eligibility based on status before 1958.

    Authority:  105 Stat. 386, 38 U.S.C. 501(a), 2302-2308, unless 
otherwise noted.

Subpart B--Burial Benefits

Burial Benefits: General


Sec.  3.1700  Types of VA burial benefits.

    (a) Burial benefits. VA provides the following types of burial 
benefits, which are discussed in Sec. Sec.  3.1700 through 3.1712:
    (1) Burial allowance based on service-connected death;
    (2) Burial allowance based on non-service-connected death;
    (3) Burial allowance for a veteran who died while hospitalized by 
VA;
    (4) Burial plot or interment allowance; and
    (5) Reimbursement for transportation of remains.
    (b) Definition. For purposes of this subpart, burial means all the 
legal methods of disposing of the remains of a deceased person, 
including, but not limited to, cremation, burial at sea, and medical 
school donation.
    (c) Cross references. (1) Other benefits and services related to 
the memorialization or interment of a deceased veteran and certain 
survivors include the following:
    (i) Burial in a national cemetery (see Sec. Sec.  38.600 and 38.617 
through 38.629 of this chapter);
    (ii) Presidential memorial certificates (see 38 U.S.C. 112);

[[Page 32659]]

    (iii) Burial flags (see Sec.  1.10 of this chapter); and
    (iv) Headstones or markers (see Sec. Sec.  38.630 through 38.633 of 
this chapter).
    (2) The provisions of Sec. Sec.  3.1702 through 3.1711 do not apply 
to any of the programs listed in paragraph (c)(1) of this section.


Sec.  3.1701  Deceased veterans for whom VA may provide burial 
benefits.

    For purposes of providing burial benefits under subpart B of this 
part, the term ``veteran'' means the same as provided in 38 U.S.C. 
101(2). A veteran must be deceased, and burial benefits for that 
veteran must be authorized by a specific provision of law. For purposes 
of the non-service-connected burial allowance under 38 U.S.C. 2302, the 
term ``veteran'' includes a person who died during a period deemed to 
be active military, naval, or air service under Sec. Sec.  3.6(b)(7), 
3.7(m) and 3.7(o).

(Authority: 38 U.S.C. 101(2), 2302, 2303, 2307, 2308)

Sec.  3.1702  Persons who may receive burial benefits; priority of 
payments.

    (a) Automatic payments to eligible surviving spouse. On or after 
July 7, 2014, VA will automatically pay a burial benefit to an eligible 
surviving spouse when VA is able to determine eligibility based on 
evidence of record as of the date of the veteran's death. VA may grant 
additional burial benefits, including the plot or interment allowance, 
reimbursement for transportation, and the service-connected burial 
allowance under Sec.  3.1704, to the surviving spouse or any other 
eligible person in accordance with paragraph (b) of this section and 
based on a claim described in Sec.  3.1703.
    (b) Priority of payments--claims received on or after July 7, 2014. 
(1) Except for claims a State, or an agency or political subdivision of 
a State, files under Sec.  3.1707, Plot or interment allowance for 
burial in a State veterans cemetery or other cemetery, or Sec.  3.1708, 
Burial of a veteran whose remains are unclaimed, VA will pay, upon the 
death of a veteran, the first living person to file of those listed 
below:
    (i) His or her surviving spouse;
    (ii) The survivor of a legal union between the deceased veteran and 
the survivor that is not covered by paragraph (b)(1)(i) of this 
section. For purposes of this paragraph, legal union means a formal 
relationship between the decedent and the survivor that
    (A) Existed on the date of the veteran's death,
    (B) Was recognized under the law of the State in which the couple 
formalized the relationship, and
    (C) Was evidenced by the State's issuance of documentation 
memorializing the relationship;
    (iii) His or her children, regardless of age;
    (iv) His or her parents or the surviving parent; or
    (v) The executor or administrator of the estate of the deceased 
veteran. If no executor or administrator has been appointed, VA may pay 
burial benefits based on a claim filed by a person acting for such 
estate who will distribute the burial benefits to the person or persons 
entitled to such distribution under the laws of the veteran's last 
State of residence.
    (2) In the case of a veteran whose remains are unclaimed, VA will 
pay the person or entity that provided burial services and 
transportation subject to the limitations prescribed in Sec. Sec.  
3.1708 and 3.1709.
    (3) VA will pay burial benefits to a single representative of the 
categories in paragraph (b)(1) of this section. VA will not divide 
applicable burial benefits among claimants; it is the responsibility of 
the recipient to distribute benefits as may be required.
    (c) Priority of payments--claims received before July 7, 2014.
    (1) Claims for burial allowance may be executed by:
    (i) The funeral director, if entire bill or any balance is unpaid 
(if unpaid bill or the unpaid balance is less than the applicable 
statutory burial allowance, only the unpaid amount may be claimed by 
the funeral director); or
    (ii) The individual whose personal funds were used to pay burial, 
funeral, and transportation expenses; or
    (iii) The executor or administrator of the estate of the veteran or 
the estate of the person who paid the expenses of the veteran's burial 
or provided such services. If no executor or administrator has been 
appointed then by some person acting for such estate who will make 
distribution of the burial allowance to the person or persons entitled 
under the laws governing the distribution of interstate estates in the 
State of the decedent's personal domicile.
    (2) Claims for the plot or interment allowance (except for claims 
filed by a State or an agency or political subdivision thereof), under 
Sec.  3.1707 may be executed by:
    (i) The funeral director, if he or she provided the plot or 
interment services, or advanced funds to pay for them, and if the 
entire bill for such or any balance thereof is unpaid (if the unpaid 
bill or the unpaid balance is less than the statutory plot or interment 
allowance, only the unpaid amount may be claimed by the funeral 
director); or
    (ii) The person(s) whose personal funds were used to defray the 
cost of the plot or interment expenses; or
    (iii) The person or entity from whom the plot was purchased or who 
provided interment services if the bill for such is unpaid in whole or 
in part. An unpaid bill for a plot will take precedence in payment of 
the plot or interment allowance over an unpaid bill for other interment 
expenses or a claim for reimbursement for such expenses. Any remaining 
balance of the plot or interment allowance may then be applied to 
interment expenses; or
    (iv) The executor or administrator of the estate of the veteran or 
the estate of the person who bore the expense of the plot or interment 
expenses. If no executor or administrator has been appointed, claim for 
the plot or interment allowance may be filed as provided in paragraph 
(c)(1)(iii) of this section for the burial allowance.

(Authority: 38 U.S.C. 2302, 2303, 2307)


Cross Reference: Sec.  3.1(i) for the definition of ``State''.


Sec.  3.1703  Claims for burial benefits.

    (a) When claims must be filed--(1) General rule. Except as provided 
in paragraph (a)(2) of this section, VA must receive a claim for the 
non-service-connected burial allowance no later than 2 years after the 
burial of the veteran. There are no other time limitations to file 
claims for burial benefits under subpart B of this part.
    (2) Correction of character of discharge. If the non-service-
connected burial allowance was not payable at the time of the veteran's 
death or burial because of the character of the veteran's discharge 
from service, VA may pay the allowance if a competent authority 
corrects the deceased veteran's discharge to reflect a discharge under 
conditions other than dishonorable. Claims for the non-service-
connected burial allowance must be filed no later than 2 years after 
the date that the discharge was corrected.
    (b) Supporting evidence--(1) General rule. In order to pay burial 
benefits, VA must receive all of the following:
    (i) A claim, except as provided in Sec.  3.1702(a);
    (ii) Proof of the veteran's death in accordance with Sec.  3.211, 
Death; and
    (iii) For persons listed under Sec.  3.1702(b), except as provided 
in Sec.  3.1702(a), a statement certifying that the claimant incurred 
burial, plot or interment, or transportation costs of the deceased 
veteran.

[[Page 32660]]

    (2) Reimbursement of transportation expenses. In order to pay 
transportation costs, VA must receive a receipt, preferably on 
letterhead, showing who paid the costs, the name of the deceased 
veteran, the specific transportation expenses incurred, and the dates 
of the services rendered.
    (3) Eligibility based on evidence of record. VA may establish 
eligibility for benefits in this subpart based upon evidence of service 
and disability that VA relied upon to grant disability compensation or 
pension during the veteran's lifetime, unless VA has some other 
evidence on the date that it receives notice of the veteran's death 
that creates doubt as to the correctness of that evidence.


(The information collection requirements in this section are approved 
by the Office of Management and Budget under control number 2900-0003.)

(Authority: 38 U.S.C. 2304, 5107(a))

Burial Benefits: Allowances & Expenses Paid by VA


Sec.  3.1704  Burial allowance based on service-connected death.

    (a) General rule. VA will pay the maximum burial allowance 
specified in 38 U.S.C. 2307 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 service-
connected burial allowance is in lieu of other allowances authorized by 
subpart B of this part, except those allowances listed in paragraph (c) 
of this section.
    (b) Eligibility. A burial allowance is payable under this section 
for a veteran who died as a result of a service-connected disability or 
disabilities. VA will presume, unless it has evidence to the contrary 
on the date it receives notice of the veteran's death, that a veteran 
died as a result of a service-connected disability or disabilities if, 
at the date of death, the veteran was rated totally disabled for a 
service-connected disability or disabilities, excluding a total 
disability rating based on individual unemployability.
    (c) Additional allowances available based on service-connected 
death. In addition to the service-connected burial allowance authorized 
by this section:
    (1) VA may reimburse for transportation expenses related to burial 
in a national cemetery under Sec.  3.1709, Transportation expenses for 
burial in a national cemetery; and
    (2) VA may pay the plot or interment allowance for burial in a 
State veterans cemetery under Sec.  3.1707(a), Plot or interment 
allowance.

(Authority: 38 U.S.C. 2303, 2307, 2308)


Cross Reference: Sec.  3.1(i), for the definition of ``State''.


Sec.  3.1705  Burial allowance based on non-service-connected death.

    (a) General rule. VA will pay the maximum burial allowance 
specified in 38 U.S.C. 2302 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 allowances available based on non-service-connected 
death. In addition to the non-service-connected burial allowance 
authorized by this section:
    (1) VA may reimburse for transportation expenses related to burial 
in a national cemetery under Sec.  3.1709, Transportation expenses for 
burial in a national cemetery, but only if eligibility under paragraphs 
(b) of this section is based on a pending claim for, or award of, 
disability compensation, or eligibility for disability compensation but 
for receipt of military retired pay, rather than a claim for, or award 
of, pension; and
    (2) VA may pay the plot or interment allowance for burial in a 
State veterans cemetery under Sec.  3.1707(a), Plot or interment 
allowance.

(Authority: 38 U.S.C. 2302, 2303, 2304, 2308)


Cross Reference: Sec.  3.1(i), for the definition of ``State''.


Sec.  3.1706  Burial allowance for a veteran who died while 
hospitalized by VA.

    (a) General rule. VA will pay up to the maximum burial allowance 
specified in 38 U.S.C. 2303(a) for the burial and funeral expenses of a 
veteran described in paragraph (b) of this section.
    (b) Eligibility. A burial allowance is payable under this section 
for a veteran whose death was not service-connected and who died while 
hospitalized by VA. For purposes of this allowance, a veteran was 
hospitalized by VA if the veteran:
    (1) Was properly admitted to a VA facility (as described in 38 
U.S.C. 1701(3)) for hospital, nursing home, or domiciliary care under 
the authority of 38 U.S.C. 1710 or 1711(a);
    (2) Was transferred or admitted to a non-VA facility (as described 
in 38 U.S.C. 1701(4)) for hospital care under the authority of 38 
U.S.C. 1703;
    (3) Was transferred or admitted to a nursing home for nursing home 
care at the expense of the U.S. under the authority of 38 U.S.C. 1720;
    (4) Was transferred or admitted to a State nursing home for nursing 
home care for which payment is authorized under the authority of 38 
U.S.C. 1741;
    (5) Was traveling under proper prior authorization, and at VA 
expense, to or

[[Page 32661]]

from a specified place for purpose of examination, treatment, or care; 
or
    (6) Was hospitalized by VA pursuant to any of paragraphs (b)(1) 
through (4) of this section but was not at the facility at the time of 
death and was:
    (i) On authorized absence that did not exceed 96 hours at the time 
of death;
    (ii) On unauthorized absence for a period not in excess of 24 hours 
at the time of death; or
    (iii) Absent from the facility for a period not in excess of 24 
hours of combined authorized and unauthorized absence at the time of 
death.
    (c) Hospitalization in the Philippines. Hospitalization in the 
Philippines under 38 U.S.C. 1731, 1732, and 1733 does not meet the 
requirements of this section.
    (d) Additional allowances available based on death while 
hospitalized by VA. In addition to the burial allowance authorized by 
this section:
    (1) VA will reimburse for the expense of transporting the remains 
of a person described in paragraph (b) of this section to the place of 
burial subject to the limitations of Sec.  3.1709 and where the death 
occurs within a State and:
    (i) The place of burial is in the same State or any other State; or
    (ii) The place of burial is in Canada or Mexico. However, 
reimbursement for transportation of the remains for such burial is 
authorized only from the place of death within a State to the port of 
embarkation within a State, or to the border limits of the United 
States.
    (2) VA may pay the plot or interment allowance for burial in a 
veterans cemetery under Sec.  3.1707, Plot or interment allowance.

(Authority: 38 U.S.C. 2303(a), 2308)


Cross Reference: Sec.  3.1(z) for the definition of ``nursing 
home'', Sec.  3.1(i) for the definition of ``State''.


Sec.  3.1707  Plot or interment allowances for burial in a State 
veterans cemetery or other cemetery.

    (a) General eligibility. For a veteran who was eligible for burial 
in a national cemetery under 38 U.S.C. 2402, but was not buried in a 
national cemetery or other cemetery under the jurisdiction of the U.S., 
VA will pay the allowances described below, provided all criteria are 
met.
    (b) Plot or interment allowance for burial in a State veterans 
cemetery. VA will pay the plot or interment allowance in the amount 
specified in 38 U.S.C. 2303(b)(1) (without regard to whether any other 
burial benefits were provided for that veteran) to a State, or an 
agency or political subdivision of a State, that provided a burial plot 
or interment for the veteran without charge if the State, or agency or 
political subdivision of the State:
    (1) Is claiming the plot or interment allowance for burial of the 
veteran in a cemetery, or section of a cemetery, owned by the State or 
agency or subdivision of the State;
    (2) Did not charge for the expense of the plot or interment; and
    (3) Uses the cemetery or section of a cemetery solely for the 
interment of:
    (i) Persons eligible for burial in a national cemetery; and
    (ii) In a claim based on a veteran's death after October 31, 2000, 
either:
    (A) Deceased members of a reserve component of the Armed Forces not 
otherwise eligible for interment in a national cemetery; or
    (B) Deceased former members of a reserve component of the Armed 
Forces not otherwise eligible for interment in a national cemetery who 
were discharged or released from service under conditions other than 
dishonorable.
    (c) Plot or interment allowance payable based on burial in other 
than a State veterans cemetery. 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:
    (1) The veteran is eligible for a burial allowance under Sec.  
3.1705, Burial allowance based on non-service-connected death;
    (2) The veteran is eligible for a burial allowance under Sec.  
3.1706, Burial allowance for a veteran who died while hospitalized by 
VA;
    (3) The veteran was discharged from active service for a disability 
incurred or aggravated in line of duty (VA will accept the official 
service record of such discharge as proof of eligibility for the plot 
or interment allowance and VA will disregard any previous VA 
determination made in connection with a claim for monetary benefits 
that the disability was not incurred or aggravated in line of duty); or
    (4) The veteran, at the time of discharge from active service, had 
a disability, shown by official service records, which in medical 
judgment would have justified a discharge for disability.
    (d) Definitions. For purposes of subpart B of this part, plot or 
burial plot means the final disposal site of the remains, whether it is 
a grave, mausoleum vault, columbarium niche, or other similar place. 
Plot or interment expenses are those expenses associated with the final 
disposition of the remains and are not confined to the acts done within 
the burial grounds but may include the removal of remains for burial or 
interment.

(Authority: 38 U.S.C. 501(a), 2303(b))


Cross Reference: Sec.  3.1(i) for the definition of ``State''.


Sec.  3.1708  Burial of a veteran whose remains are unclaimed.

    (a) General. VA will pay the maximum burial allowance specified in 
38 U.S.C. 2302 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.
    (b) Eligibility. A burial allowance is payable under this section 
for a veteran if the Secretary determines that:
    (1) There is no next of kin or other person claiming the remains of 
the deceased veteran; and
    (2) There are not sufficient resources available in the veteran's 
estate to cover the burial and funeral expenses.
    (c) Additional allowance for transportation of unclaimed remains. 
VA may reimburse for transportation expenses related to burial in a 
national cemetery under Sec.  3.1709, Transportation expenses for 
burial in a national cemetery, for a veteran described in paragraph (b) 
of this section.
    (d) Burial. When VA determines that a veteran's remains are 
unclaimed, the Director of the VA regional office in the area in which 
the veteran died will immediately complete arrangements for burial in a 
national cemetery or, at his or her option, in a cemetery or cemetery 
section meeting the requirements of paragraph (b) of Sec.  3.1707, Plot 
or interment allowance.

(Authority: 38 U.S.C. 2302(a))


Cross Reference: Sec.  3.1(i) for the definition of ``State''.


Sec.  3.1709  Transportation expenses for burial in a national 
cemetery.

    (a) General. VA will reimburse the costs of transportation, subject 
to paragraph (d) of this section, of a veteran's remains for burial in 
a national cemetery for a veteran described in paragraph (b) of this 
section.
    (b) Eligibility. VA will reimburse for the expense incurred, 
subject to paragraph (d) of this section, to transport a veteran's 
remains for burial in a national cemetery if:
    (1) The veteran died as the result of a service-connected 
disability;

[[Page 32662]]

    (2) The veteran was receiving service-connected disability 
compensation on the date of death;
    (3) The veteran would have been receiving service-connected 
disability compensation on the date of death, but for the receipt of 
military retired pay or non-service-connected disability pension; or
    (4) The Secretary determines the veteran is eligible for a burial 
allowance under Sec.  3.1708.
    (c) Amount payable. The amount payable under this section will not 
exceed the cost of transporting the remains to the national cemetery 
closest to the veteran's last place of residence in which burial space 
is available, and is subject to the limitations set forth in paragraph 
(d) of this section.
    (d) Reimbursable transportation expenses. (1) VA will reimburse 
reasonable transportation expenses, including but not limited to the 
costs of shipment via common carrier (i.e., procuring permits for 
shipment, a shipping case, sealing of the shipping case, and applicable 
Federal taxes) and costs of transporting the remains to the place of 
burial.
    (2) A reasonable transportation expense is an expense that is usual 
and customary in the context of burial transportation, with a 
corresponding charge that is the usual and customary charge made to the 
general public for the same or similar services.

(Authority: 38 U.S.C. 2303, 2308)

Burial Benefits: Other


Sec.  3.1710  Escheat (payment of burial benefits to an estate with no 
heirs).

    VA will not pay burial benefits if the payment would escheat (that 
is, would be turned over to the State because there are no heirs to the 
estate of the person to whom such benefits would be paid).

(Authority: 38 U.S.C. 501(a))

Sec.  3.1711  Effect of contributions by government, public, or private 
organizations.

    (a) Contributions by government or employer. With respect to claims 
for a plot or interment allowance under Sec.  3.1707, if VA has 
evidence that the U.S., a State, any agency or political subdivision of 
the U.S. or of a State, or the employer of the deceased veteran has 
paid or contributed payment to the veteran's plot or interment 
expenses, VA will pay the claimant up to the lesser of:
    (1) The allowable statutory amount; or
    (2) The amount of the total plot or interment expenses minus the 
amount of expenses paid by any or all of the organizations described in 
this paragraph (a).
    (b) Burial expenses paid by other agencies of the U.S. (1) Burial 
allowance when Federal law or regulation also provides for payment. VA 
cannot pay the non-service-connected burial allowance when any Federal 
law or regulation also specifically provides for the payment of the 
deceased veteran's burial, funeral, or transportation expenses. 
However, VA will pay the non-service-connected burial allowance when a 
Federal law or regulation allows the payment of burial expenses using 
funds due, or accrued to the credit of, the deceased veteran (such as 
Social Security benefits), but the law or regulation does not 
specifically require such payment. In such cases, VA will pay the 
maximum amount specified in 38 U.S.C. 2302.
    (2) Payment by military service department. VA will not pay or will 
recoup the non-service-connected burial allowance for deaths occurring 
during active service or for other deaths for which the service 
department pays the burial, funeral, or transportation expenses.
    (3) When a veteran dies while hospitalized. When a veteran dies 
while hospitalized at the expense of the U.S. government (including, 
but not limited to, death in a VA facility) and benefits would be 
otherwise payable under 10 U.S.C. 1482 and a provision of this subpart 
B, only one of these benefits is payable. VA will attempt to locate a 
relative of the veteran or another person entitled to reimbursement 
under Sec.  3.1702(b) and will ask that person to elect between these 
benefits.

(Authority: 38 U.S.C. 2302, 2303(b))

Sec.  3.1712  Effect of forfeiture on payment of burial benefits.

    (a) Forfeiture for fraud. VA will pay burial benefits, if otherwise 
in order, based on a deceased veteran who forfeited his or her right to 
receive benefits due to fraud under Sec.  3.901, Fraud. However, VA 
will not pay burial benefits to a claimant who participated in 
fraudulent activity that resulted in forfeiture under Sec.  3.901.
    (b) Forfeiture for treasonable acts or for subversive activity. VA 
will not pay burial benefits based on a period of service commencing 
before the date of commission of the offense if either the veteran or 
the claimant has forfeited the right to all benefits except insurance 
payments under Sec.  3.902, Forfeiture for treasonable acts, or Sec.  
3.903, Forfeiture for subversive activities, because of a treasonable 
act or subversive activities, unless the offense was pardoned by the 
President of the U.S.

(Authority: 38 U.S.C. 6103, 6104, 6105)


Cross Reference: Sec.  3.1(aa), for the definition of ``fraud.''


Sec.  3.1713  Eligibility based on status before 1958.

    When any person dies who had a status under any law in effect on 
December 31, 1957, that afforded entitlement to burial benefits, burial 
benefits will be paid, if otherwise in order, even though such status 
does not meet the service requirements of 38 U.S.C. chapter 23.

(Authority: 38 U.S.C. 2305)


[FR Doc. 2014-13230 Filed 6-5-14; 8:45 am]
BILLING CODE 8320-01-P