Citation Nr: 1334329 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-26 480A ) DATE ) ) On appeal from the 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 J.M. Seay, Counsel INTRODUCTION The Confederate Army veteran served during the American Civil War and was a member of Company K of the 33rd Regiment of the Arkansas Infantry. The appellant is his great grandson. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2010 decision of the Department of Veterans Affairs (VA) National Cemetery Administration, Memorial Programs Service Processing Site, in Nashville, Tennessee, that denied appellant's claim for a Government-furnished headstone or grave marker. FINDINGS OF FACT 1. The Confederate Army veteran is interred in a private cemetery and his grave is marked with a personal headstone/grave marker. 2. The Confederate Army veteran died in March 1910. CONCLUSION OF LAW The criteria for entitlement to a Government-furnished headstone or grave marker have not been met. 38 U.S.C.A. § 2306 (West 2002); 38 C.F.R. §§ 38.630, 38.631 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The United States Court of Appeals for Veterans Claims (the Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542-3 (2002). In addition, the VA General Counsel has held that VA is not required under 38 U.S.C.A. § 5103(a) 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. VAOPGCPREC 5-04 (2004). In this case, the appellant is only entitled to a Government-furnished headstone or marker if the decedent's grave is unmarked. The appellant was notified of this in the September 2010 decision. Further notification or assistance in this case would be of no useful purpose in this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). The issue in this case is whether the decedent's grave was unmarked so as to warrant a Government-furnished headstone or marker. The Board has determined that the decedent's grave is marked and the appellant's photograph of the headstone is not credible. Thus, any remand to provide additional notification or assistance would not result in any benefit flowing to the appellant. See Soyini, id. Therefore, the Board may proceed with a decision. Legal Criteria Any person classified as a "veteran" is eligible for burial in a national cemetery. 38 U.S.C.A. § 2402 (West 2002); 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) (2013). Soldiers (and sailors) who served in the Union and Confederate Armies of the Civil War will be classified as a veteran who may be buried in a national cemetery. See 38 U.S.C.A. § 2306(a)(3) (West 2002). VA is authorized to furnish a headstone or marker allowance for unmarked graves under 38 U.S.C.A. § 2306 and 38 C.F.R. §§ 38.630-38.633. Pursuant to 38 U.S.C.A. § 2306(a), the Secretary shall furnish, when requested, appropriate Government headstones or markers at the expense of the United States for the unmarked graves of the following: (1) any individual buried in a national cemetery or in a post cemetery; (2) any individual eligible for burial in a national cemetery (but not buried there) except for those persons or classes of persons enumerated in section 2402(4), (5), and (6) of this title; (3) Soldiers of the Union and Confederate Armies of the Civil War; (4) any individual described in section 2402(5) of this title who is buried in a veteran's cemetery owned by a State; and (5) any individual who at the time of death was entitled to retired pay under chapter 1223 of title 10 [10 U.S.C. §§ 12731 et seq.] or would have been entitled to retired pay under that chapter but for the fact that the person was under 60 years of age. Pursuant to 38 U.S.C.A. § 2306(b)(1), the Secretary shall furnish, when requested, an appropriate Government headstone or marker for the purposes of commemorating an eligible individual whose remains are unavailable. Such a headstone or marker shall be furnished for placement in a national cemetery area reserved for that purpose under section 2403 [38 U.S.C. § 2403], a veterans' cemetery owned by a State, or in the case of a veteran, in a State, local, or private cemetery. For the purposes of paragraph (1), an eligible individual is one of the following: (A) A veteran; (B) the spouse or surviving spouse of a veteran; (C) an eligible dependent child of the veteran. Additionally, for the purposes of paragraph (1), the remains of an individual shall be considered to be unavailable if the individual remains: (A) have not been recovered or identified; (B) were buried at sea, whether by the individual's own choice or otherwise; (C) were donated to science; (D) were cremated and the ashes scattered without internment of any portion of that ashes. Under 38 U.S.C.A. § 2306(d), the Secretary shall furnish, when requested, an appropriate Government headstone or marker at the expense of the United States for the grave of an individual described in paragraph (2) or (5) of subsection (a) who is buried in a private cemetery, notwithstanding that the grave is marked by a headstone or marker furnished at private expense. Such a headstone or marker may be furnished only if the individual making the request for the Government headstone or marker certifies to the Secretary that the headstone or marker will be placed on the grave for which the headstone or marker is requested, or, if placement on the grave is impossible or impracticable, as close as possible to the grave within the grounds of the cemetery in which the grave is located. Pursuant to the corresponding regulatory provisions under 38 C.F.R. § 38.631(a) and (b), VA will furnish an appropriate Government headstone or marker for the grave of a decedent 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 but is not an individual described in 38 U.S.C. § 2402(4), (5), or (6), but only if the individual requesting the headstone or marker certifies on VA Form 40-1330 that it will be placed on the grave for which it is requested or, if placement on the grave is impossible or impracticable, as close to the grave as possible within the grounds of the private cemetery where the grave is located. 38 C.F.R. § 38.631(a), (b) (2012). Analysis The decedent in question served in Company K of the 33rd Regiment of the Arkansas Infantry of the Confederate Army during the American Civil War. The Confederate Army veteran's birth and death dates are respectively April [redacted], 1840 and March [redacted], 1910. Upon his death, the Confederate Army veteran was buried in a private cemetery-Rocky Mound Cemetery. The National Cemetery Administration Memorial Programs Service printed a photograph of the Confederate Army veteran's headstone as uploaded on the website, www.findagrave.com. The photograph of the headstone shows that the Confederate Army veteran's name was specified along with his birth and death dates. In his VA Form 9, the appellant contended that the headstone was effectively unmarked because of damage from "floods, tornadoes, vandalism, or natural decay." In his notice of disagreement, the appellant stated that the photograph uploaded to www.findagrave.com was from a number of years ago and did not reflect the current condition of the headstone. The appellant included a photograph that purported to depict the current condition of the headstone. The photograph submitted by the appellant featured a broken headstone with no visible name, birth date, or death date. In deciding the claim at hand, the Board must assess the credibility and weight of all the evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board finds that the appellant's photograph is not credible. As noted above, the evidence of record included a photograph of the headstone that was uploaded in May 2010 to the www.findagrave.com website. In comparing the photograph from www.findagrave.com and the appellant's photograph, there are significant differences. As pointed out by the Site Supervisor, in a document entitled "Headstone Review," the appellant's photograph showed a headstone that appeared to be significantly damaged. The headstone revealed decorative designs, which were not shown in the www.findagrave.com photograph. In addition, the Site Supervisor noted that the appellant's photograph showed a headstone that appeared to be much older with a moderate arc on the top as opposed to the www.findagrave.com photograph which had a slight arc at the top. In addition, the photograph was uploaded to www.findagrave.com in May 2010, only a short time before the appellant submitted his own photograph in October 2010. The Board does not find it credible that the headstone would undergo such significant damage in such a short amount of time. In consideration of the objective differences between the headstones depicted in the photographs and the short gap in time between the May 2010 uploaded photograph and the photograph submitted by the appellant in October 2010, the Board does not find the appellant's photograph to be credible. In contrast, the Board finds the photograph from www.findagrave.com to be credible and an accurate depiction of the headstone at issue in this case. Again, as the grave is marked, a government headstone or marker cannot be provided. The decedent died before November 1, 1990 and, therefore, the provisions of 38 C.F.R. § 38.631 are not for application. The claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a Government-furnished headstone or grave marker is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs