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VA Issues Final Rule on Funeral and Burial Benefits

Posted: July 7, 2014

The Department of Veterans Affairs (VA), Veterans Benefits Administration (VBA) amended 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.

These monetary benefits are administered by VBA. As amended, these 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. According to VA, 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. The effective date of these changes is July 7, 2014 and applies to claims that were pending on or after that date.

A summary of the changes follows. Click here to read the full VA Rule on funeral and burial benefits.

Types of VA Burial Benefits (Section 3.1700)

Section 3.1700 of title 38 of the Code of Federal Regulations (CFR) defines ''burial'' to describe the types of services that VA has authority to pay for as a VBA burial benefit. VA liberally defined burial as including, but not limited to, all legal methods for disposing of a deceased person's remains. At NFDA's suggestion, this definition would include Alkaline Hydrolysis if legal under State law.

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

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 ($300-$2,000) to survivors who generally have an immediate need for supplemental financial assistance after the veteran's death.

To facilitate efficient processing of claims, section 3.1702(a) provides to automate certain payments to surviving spouses based upon information in VA systems as a first priority and in section 3.1702(b) to establish a priority of payments for other eligible individuals. If there were no surviving spouse, child, or parent, 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. NFDA's argument to have funeral homes remain a priority for these payments was not accepted.

In addition, pursuant to the President's direction, VA is now providing benefits to same sex spouses of Veterans whose marriage is recognized under the place-of-residency rule under 38 U.S.C. § 103(c), to determine whether a Veteran's marriage is recognized for the purposes of VA benefits. However, 38 U.S.C. § 2302 allows for expanded eligibility to include individuals in relationships that are recognized by State law but not recognized by VA under section 103(c). Thus, VA revised its regulation to prescribe payment of burial benefits to the survivor of a legal between the deceased Veteran and the survivor, who do not meet the regulatory definition of "surviving spouse" in 38 CFR 3.1702(b)(1)(i). The regulation defines "legal " 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.

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

Section 3.1707(c) implements 38 U.S.C. § 2303(b)(2) to provide for a plot or interment allowance for burials in other than State veterans cemeteries., which includes otherwise eligible burials in tribal cemeteries.

Also, section 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 section 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). 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 section 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.''

Burial of the Remains of a Veteran Whose Remains Are Unclaimed (Section 3.1708)

Persons or entities described in section 3.1702 (b)(2), may claim entitlement to reimbursement for burial services and transportation of unclaimed veteran remains, subject to limitations under sections 3.1708 and 3.1709. To illustrate, funeral homes may request reimbursement for the provision of burial services, to include expenses for transporting the remains of unclaimed Veterans (defined in section 3.1708 as deceased Veterans with no next of kind and insufficient resources for burial and funeral expenses) for the purposes of interment in a national cemetery (as required by section 3.1709).

Transportation Expenses for Burial in a National Cemetery (Section 3.1709)

The underlying statutory authority for the transportation allowance in 38 U.S.C. § 2308 limits VA's 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.

Further, reimbursement 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. Section 3.1709, which implements the statutory authority, limits reimbursement of the costs of transportation of veterans whose remains are unclaimed for the purpose of interment in a national cemetery. Section 3.1709(b) prescribes specific eligibility criteria for transportation expenses and paragraph (d) describes reimbursable transportation expenses (see restatement below). The maximum amount for reimbursement 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.

"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."