Citation Nr: 1331248	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  11-05 516A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affiars National Cemetery Adminstration (NCA)
Memorial Programs Services in St. Louis, Missouri


THE ISSUE

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


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1941 to November 1945.  He died in March 1967 and the Appellant is his daughter.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision of the Department of Veterans Affairs (VA) National Cemetery Administration Memorial Programs Service Processing Site in Ft. Leavenworth, Kansas.


FINDINGS OF FACT

1.  The Veteran died in March 1967.

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


CONCLUSION OF LAW

The criteria for basic eligibility for a Government-furnished headstone or grave marker 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 VAOPGCPREC 5-2004 (June 23, 2004), which stated that VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claim ineligible for the claimed benefit.

The Veteran served from June 1941 to November 1945 and died in March 1967.  Upon his death, the Veteran was buried in a private cemetery.  The Appellant, the Veteran's daughter, has come to the VA asking that a Government-issued grave marker be authorized for the Veteran's gravesite.

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). 

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).
In the instant case, the decedent was not buried in a national cemetery; he was interred in a private cemetery.  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. 2402(4), (5), or (6).

It is undisputed that the Veteran in this case was eligible for burial in a national cemetery and was buried in a private cemetery.  However, the Veteran in this case died in March 1967.  As the Veteran died before November 1, 1990, the criteria for a VA-furnished marker have not been met.

The Board is sympathetic to the Appellant's arguments but, unfortunately, is 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].'').  Accordingly, since the decedent's death was prior to the date provided by law, the VA may not provide a Government-issued headstone or grave marker to the Appellant for placement on the decedent's grave.  Hence, the Appellant's claim is denied as a matter of law.  Sabonis, supra.  






ORDER

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



____________________________________________
Vito A. Clementi 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs