Citation Nr: 1331255	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  11-18 567A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs National Cemetery Administration
Memorial Programs Service Processing Site in Ft. Leavenworth, Kansas



THE ISSUE

Entitlement to a Government-furnished grave marker.



ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel






INTRODUCTION

The Veteran served in World War I.  He died June [redacted], 1971.  The appellant is his grandson.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decisional letter 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 on June [redacted], 1971.

2.  The Veteran is buried at a private cemetery in a grave marked by a privately purchased headstone..


CONCLUSION OF LAW

The legal criteria for establishing entitlement to a Government-furnished grave marker for a Veteran buried in a private cemetery in a grave marked with a private headstone or marker are not met.  38 U.S.C.A. § 2306 (West 2002); 38 C.F.R. § 38.631 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  This claim is limited to statutory interpretation.  Therefore, the notice provisions of VCAA do not apply.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (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 claimant ineligible for the claimed benefit).

Legal Criteria, Factual Background, and Analysis

The Veteran served on active duty during World War I.  He died on June [redacted], 1971.  The appellant is the Veteran's grandson.  He seeks a VA-furnished 5 inch medallion for his grandfather's grave in a private cemetery.  The Veteran's grave is marked by a privately purchased headstone.

Governing law provides that (if the individual requesting certified that a headstone or marker will be placed on the grave for which it was requested) VA will furnish a headstone or marker for the grave of a veteran who:

(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.  See 38 U.S.C.A. § 2306; 38 C.F.R. § 38.361.

The critical facts in this case are not in dispute.  The Veteran is buried in a private cemetery (in a grave marked by a privately purchased headstone); by virtue of his "Veteran" status was eligible for burial in a national cemetery (See 38 U.S.C.A. § 2402); died in June 1971.

The 38 C.F.R. 38.361(b) requirements outlined above are stated in the conjunctive, i.e., each must be met for entitlement to a headstone or marker for a grave of a Veteran buried in a private cemetery to be established.  While the Veteran in this case meets (2) and (3) of the enumerated requirements, because he died in 1971 (many years prior to the delimiting date of November 1, 1990), he does not met requirement (1).  Accordingly, the legal requirements for a Government-provided headstone or marker for his grave are not met.  

The appellant acknowledges that the legal requirements for VA to provide a Government marker for the Veteran's grave are not met, but (citing the Veteran's World War I service) nonetheless argues that such benefit should be provided on equitable grounds (and because the expense to the government would be minimal).  In that regard the Board observes that it has no authority to award benefits not authorized by law, regardless of cost and meritorious service.  See 38 U.S.C.A. §§ 511, 7104; See Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (VA cannot "extend . . . benefits out of sympathy for a particular veteran") (A law that is plain is binding, and leaves nothing for interpretation.  [VA] must give effect to congressional intent.)  

The appeal in this matter must be denied for lack on entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

The appeal seeking a Government-furnished grave marker is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs