Citation Nr: 1334625	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  11-08 882A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs National Cemetery Administration
Memorial Programs Service Processing Site, in
Clarksville, Tennessee


THE ISSUE

Entitlement to a Government-furnished headstone or grave marker.  


ATTORNEY FOR THE BOARD

S. D. Regan, Counsel







INTRODUCTION

The Veteran served on active duty from April 1946 to January 1948.  The appellant is the Veteran's sister.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in September 2010 of the Department of Veterans Affairs (VA) National Cemetery Administration, Memorial Programs Service Processing Site, in Clarksville, Tennessee, that denied appellant's claim for a Government-furnished headstone or grave marker.  


FINDINGS OF FACT

1.  The Veteran died in 1968.  

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 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. § 38.631 (2012).  







REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 the claim and no further need to discuss VCAA duties.  

Analysis

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) (2012).  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 Veteran 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).  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 38 U.S.C.A. § 2306(d) (West 2002).  

Pursuant to 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).  

The appellant contends that the Veteran is entitled to a Government-furnished headstone or grave marker.  The appellant indicates that she has put a flag on her brother's grave for many years and that upon her death, she is afraid that a flag will no longer be placed on his grave.  She essentially maintains that the Veteran should be afforded a Government-furnished headstone or grave marker as he served in the Navy during a foreign war.  

In August 2010, the appellant filed a VA Form 40-1330, Application for Standard Government Headstone or Marker.  The appellant noted that she was the sister of the Veteran.  The appellant indicated that the Veteran died in January 1968 and that he served in the Navy from April 1946 to January 1948.  The appellant reported that the Veteran was buried in a private cemetery (Tooele City Cemetery) and that his grave was currently marked with a privately purchased marker.  

An undated report from the Social Security Death Index indicated that the Veteran died in 1968.  

In April 2011 lay statements, the Veteran's three daughters essentially indicated that the Veteran served his country, that his service should be honored, and that he should be afforded a marker or medallion for his headstone.  

The Veteran was not buried in a national cemetery; he was interred in a private cemetery (Tooele City Cemetery).  Additionally, his grave has been marked with a privately purchased marker.  The Veteran passed away in 1968, many years prior to the delimiting date of November 1, 1990.  

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].'").  As the Veteran's death was prior to the date provided by law, November 1, 1990, VA may not provide a Government-issued headstone or grave marker to the appellant for placement on the Veteran's grave.  The criteria for a Government-furnished headstone or marker have not been met.  See 38 U.S.C.A. § 2306 (West 2002) and 38 C.F.R. §§ 38.630-38.633 (2012).  

This is a case where the law is dispositive.  Given the foregoing, the appellant's claim 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 is denied.  



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs