Citation Nr: 1338070	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  11-23 815A	)	DATE
	)
	)

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

ISSUE

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


ATTORNEY FOR THE BOARD

K. Millikan, Counsel



INTRODUCTION

The appellant submitted an application for a Government supplied headstone or marker for the grave of [redacted] (WSH), a Confederate Army Veteran interred at Old Paris City Cemetery, a private cemetery in Paris, Texas.  WSH died in 1902.  The appellant is the Veteran's great great great great grandson.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 letter decision by the Department of Veterans Affairs (VA) National Cemetery Administration (NCA), Memorial Programs Service Processing Site in Nashville, Tennessee. 


FINDINGS OF FACT

1.  The Veteran, WSH, served in the Confederate Army during the Civil War, sometime between 1861 and 1865, and died in 1902. 

2.  The Veteran is interred in the Old Paris City Cemetery, a private cemetery in Paris, Texas.

3.  WSH's grave is currently marked by an upright headstone that lists his name, date of birth, date of death, and unit in the Confederate Army.


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 & Supp. 2012); 38 C.F.R. § 38.631 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  These duties, however, are inapplicable to the claims on appeal which involve statutes located in Chapter 26.  See Barger v. Principi, 16 Vet. App. 132 (2002) (noting that the notice and assistance duties apply only to statutes contained in Chapter 51 of Title 38).  

As a preliminary matter, in July 2011, the appellant filed a VA Form 40-1330, Application for Standard Government Headstone or Marker for Installation in a Private or State Veterans' Cemetery.  Applicants for obtaining markers or headstones for unmarked graves must either be a next of kin, a person authorized in writing by the next of kin, or a personal representative given authority in writing by the decedent.  38 C.F.R. § 38.632(b)(1) (2013).  The appellant has asserted that he is the Veteran's next of kin because he is WSH's great-great-great-great grandson.  Accordingly, the Board finds that the appellant is a proper applicant for purposes of adjudicating this appeal.

VA is authorized to furnish a headstone or marker for unmarked graves of soldiers of the Union and Confederate armies.  38 U.S.C.A. § 2306(a)(3) (2013) (emphasis added).  Additionally, VA may furnish a headstone or grave marker for marked graves 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, with certain other restrictions not applicable here.  38 C.F.R. § 38.631(a), (b) (2013) (emphasis added).  Headstones or markers are furnished by the Government to mark the grave or memorialize a deceased eligible veteran.  38 C.F.R. § 38.632(b)(4) (2013). 

The relevant statutes and regulations do not define what is meant by an "unmarked" grave.  NCA's website currently provides that a "marked grave is defined as a grave with a privately purchased headstone that displays the name of the veteran and dates of birth and death." See Eligibility for a Headstone or Marker, available at http://www.cem.va.gov/cem/hmm/eligibility.asp (last accessed on September 24, 2013). 

In his claim, the appellant requests a replacement headstone or marker for WSH's gravesite, noting that there is currently a headstone that contains the Veteran's name, date of birth, date of death, and unit in the Confederate Army.  With his claim, he submitted a picture of an upright headstone currently placed on the grave.  The appellant argues, however, that the grave marker is over 109 years old, is in bad condition, and that because each qualified Veteran should have a nice gravesite, a replacement headstone is warranted. 

First, the evidence demonstrates that WSH's gravesite is currently marked.  The appellant does not allege to the contrary.  A headstone with the Veteran's name, dates of birth and death, and unit in the Confederate army is located at WSH's gravesite.  Considering the above-cited laws, regulations, and agency statements, the Board finds the grave is marked.  Thus, the provisions for obtaining a Government-issued headstone or marker for unmarked graves are inapplicable.  See 38 U.S.C.A. § 2306(a)(3).  A Government-issued headstone or marker is not warranted.  

Second, WSH died in 1902, well prior to 1990, the date after which veterans with marked graves may obtain an additional headstone or marker.  See 38 C.F.R. § 38.631(a), (b).  Accordingly, the Board finds that a Government-issued headstone or marker under this provision for a marked grave is not warranted.  

The Board acknowledges the sympathetic nature of the arguments submitted in favor of the present appeal - the honoring and memorializing of our Nation's veterans is a central tenet of VA's mission and the appellant's request to replace an older headstone is understandable.  The appellant has also argued that if WSH is truly ineligible for this benefit, then the law ought to be changed.  Despite such a noble assertion, such a change is not within the Board's jurisdiction - the Board is bound by the law and without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002).  No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.  Smith v. Derwinski, 2 Vet. App. 429 (1992).  In reaching this decision the Board finds that the preponderance of the evidence is against the appellant's claim, and the claim must be denied.  38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a Government-issued headstones or marker is denied.




____________________________________________
CHERYL MASON
Veterans Law Judge, Board of Veterans' Appeals