Citation Nr: 1331934	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  10-47 246A	)	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 marker for the Veteran.


ATTORNEY FOR THE BOARD

L. Edwards, Counsel


INTRODUCTION

N.A. served in the Civilian Conservation Corps from January 1942 to July 1942.  N.A. died in April 1991.  The Appellant is N.A.'s son.

This matter comes before the Board of Veterans Appeals (Board) on appeal from the December 2009 decision of the Department of Veterans Affairs (VA) National Cemetery Administration (NCA), Memorial Programs Service Processing Site, in Nashville, Tennessee, that denied the Appellant's claim for a Government-furnished headstone or grave marker. 


FINDING OF FACT

N.A. served in the Civilian Conservation Corps, but did not have any qualifying active military service for the purposes of entitlement to a government-furnished headstone or grave marker.


CONCLUSION OF LAW

The criteria for entitlement to a government-furnished headstone or grave marker for N.A. have not been met.  38 U.S.C.A. § 2306 (West 2002); 38 C.F.R. § 38.631 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Board has considered whether the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim.  Because the claim at issue is limited to statutory interpretation, the notice provisions do not apply.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004).  Accordingly, there is no prejudice toward the Appellant in proceeding with the adjudication of his claim and no further need to discuss VCAA duties. 

II.  Entitlement to a Government-Furnished Headstone or Grave Marker for the Veteran

The Appellant seeks entitlement to a government-furnished headstone or grave marker for N.A., who died in April 1991 and is buried in a private cemetery.

Section 2306 of Title 38, United States Code, authorizes VA to furnish a government headstone or marker for placement on a privately marked grave in a private cemetery only for eligible individuals.  See 38 U.S.C.A. § 2306.  To be eligible for a government-furnished headstone or marker, the evidence must show that the individual had active military, naval or air service and was discharged or released from such service under conditions other than dishonorable.  See 38 U.S.C.A. § 101 (2), 2402(1).

Active military, naval, or air service does not include service in the Civilian Conservation Corps (CCC), as it does not fall under any of the recognized categories of active service.  See 38 C.F.R. § 3.7. 

The Appellant submitted a claim for entitlement to a headstone or marker in September 2009.  The Appellant indicated that N.A. had service in the Army and the CCC.  The application was denied by the National Cemetary Administration in December 2009 because N.A. had no qualifying military service.  The Appellant submitted a notice of disagreement in December 2009, stating that N.A. had service in the Army during World War II as well as the CCC, and indicated that his records must be classified.  

N.A.'s record of service indicates service in the CCC from January 1942 to July 1942.  

A request was sent to the National Personnel Records Center in February 2010.  A response was received indicating that all sources were negative and they were unable to identify any military service.  

As N.A. did not have any active qualifying service, the legal criteria for a government-furnished headstone or grave marker are not met and N.A. is ineligible for a government-furnished headstone or grave marker.  See 38 U.S.C.A. § 2306 (West 2002) and 38 C.F.R. §§ 38.630-38.633. 

While the Board sympathizes with the Appellant's claim and recognizes the honorable service of N.A. in the CCC, the law and regulations concerning burial benefits establish very specific eligibility requirements for the provision of government-furnished headstones or markers.  This is a case where the law is dispositive.  Given the foregoing, the claim seeking eligibility for a government-furnished headstone or marker must be denied based on the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 


ORDER

Entitlement to a government-furnished headstone or grave marker for N.A. is denied.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs