Citation Nr: 1334327	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  11-15 143A	)	DATE
	)
	)

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


THE ISSUE

Whether the Veteran is eligible for a Government-furnished headstone, marker or medallion.


ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel






INTRODUCTION

The Veteran had active military service from September 1943 to April 1946.  He died in December 1981.  The appellant is the Veteran's daughter-in-law.

This appeal comes to the Board of Veterans' Appeals (Board) from a December 2010 letter decision by the VA National Cemetery Administration Memorial Programs Service Processing Site in Ft. Leavenworth, Kansas.


FINDINGS OF FACT

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

2.  The Veteran died in December 1981.


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); 38 C.F.R. § 38.631 (2013).


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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

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.

Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).

The record reflects that the appellant, the Veteran's daughter-in-law, 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 September 1943 to April 1946, and he died in December 1981.  Upon his death, the Veteran was buried in a private cemetery.  It has been acknowledged by a funeral home with knowledge that the Veteran's grave is currently marked.

Any person classified as a "Veteran" is eligible for burial in a national cemetery.  38 U.S.C.A. § 2402; 38 C.F.R. § 38.620(a).  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); 38 C.F.R. § 3.1(d).  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).  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).  

In the instant case, the decedent was not buried in a national cemetery; he was interred in a private cemetery, where his grave has been marked.  This evidence was established during a conversation between the Cemetery Administration and the aforementioned funeral home.  The appellant has not disagreed with this assertion.  Pursuant to 38 C.F.R. § 38.631, 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 this instance, there is no question that the Veteran passed away in December 1981, many years prior to the deliminating date of November 1, 1990.  

The Board is extremely sympathetic toward the appellant; and like the appellant, the Board is also deeply appreciative of the Veteran's service to his country.  However, the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations.  As such, the Board, 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 v. Brown, 6 Vet. App. 426 (1994).


ORDER

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


____________________________________________
MICHELLE L. KANE 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs