Citation Nr: 1330822	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  10-36 442A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs National Cemetery Administration 
Memorial Programs Service Processing Site
in Nashville, Tennessee


THE ISSUE

Entitlement to a Government-furnished headstone or grave marker.


ATTORNEY FOR THE BOARD

D. Johnson, Counsel 




INTRODUCTION

The Veteran had active duty from May 1968 to August 1969.  The appellant is the Veteran's surviving spouse.  

This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2009 decision of the Department of Veterans Affairs (VA) National Cemetery Administration (NCA), Memorial Programs Service Processing Site, in Nashville, Tennessee.


FINDINGS OF FACT

1.  The Veteran died prior to November 1, 1990.  

2.  The Veteran is interred in a private cemetery and his grave is currently marked with a privately-purchased headstone/grave marker.  


CONCLUSION OF LAW

The criteria for entitlement to a Government-furnished headstone or grave marker for a Veteran buried in a private cemetery which has a monument or grave marker marking the plot or grave have not been met.  38 U.S.C.A. § 2306 (West 2002 and Supp. 2012); 38 C.F.R. § 38.631 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

To the extent any VCAA duties to notify and assist may be applicable, VA has no duty of notice or assistance in this case, since it is the law, and not the facts, which is dispositive of the case.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Mason v. Principi, 16 Vet. App. 129 (2002).

The record reflects that the appellant, the Veteran's surviving spouse, has come to the VA asking that a Government-issued headstone or grave marker be authorized for the Veteran's gravesite.  As noted above, the Veteran served from May 1968 to August 1969.  He died on December [redacted], 1988.  Upon his death, the Veteran was buried in a private cemetery.  A picture of the grave marker on the Veteran's gravesite is of record.

Any person classified as a "Veteran" is eligible for burial in a national cemetery.  38 U.S.C.A. § 2402 (West 2002 & Supp. 2012); 38 C.F.R. § 38.620(a) (2012).  A Veteran is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012).  In this case, the decedent meets the criteria for classification as a Veteran and, if the next-of-kin approved, he could be buried in a national cemetery.  

As the decedent is eligible for burial in a national cemetery, he is also entitled to an appropriate Government headstone or marker at the expense of the United States for an unmarked grave.  38 U.S.C.A. § 2306(a)(2) (West 2002 & Supp. 2012).  In cases where the grave is already marked with a headstone or other marker furnished at private expense, such a headstone or marker may still be furnished, subject to certain conditions, or other indicia of the Veteran's service may be affixed to the privately-purchased headstone or marker.  See generally, 38 U.S.C.A. § 2306(d) (West 2002 & Supp. 2012).  

Pursuant to 38 C.F.R. § 38.631 (2012), VA will furnish a Government headstone or marker for the grave of a decedent that is already marked and located in a private cemetery only if the decedent: 1) died on or after November 1, 1990; 2) is buried in a private cemetery; and 3) was eligible for burial in a national cemetery, but is not an individual described in 38 U.S.C.A. § 2402(4), (5), or (6).

In the instant case, it is acknowledged that the decedent was not buried in a national cemetery; he was interred in a private cemetery.  It is also acknowledged that his grave has been marked with a monument that specifies his name along with his date of death.  However, the requirements to receive a Government headstone or marker are not met.  There is no question that the Veteran passed away in December 1988, prior to the deliminating date of November 1, 1990.  Thus while the Board is sympathetic to the appellant's arguments, it is unfortunately unable to provide a legal remedy.  See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'").  

As the decedent's death was prior to the date provided by law, VA may not provide a Government-issued headstone or grave marker to the appellant for placement on the decedent's grave.  The appellant's claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).





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ORDER

Entitlement to a Government-furnished headstone or grave marker for the Veteran is denied.  



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs