Citation Nr: 1343482 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 12-08 218A ) DATE ) ) On appeal from the Department of Veterans Affairs National Cemetery Administration THE ISSUE Entitlement to burial in a national cemetery under the control of the National Cemetery Administration. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The appellant's husband served in the Union of Soviet Socialist Republics (USSR) Army from June 1941 to July 1957 with service during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision of the Department of Veterans Affairs (VA) National Cemetery Administration (NCA). FINDING OF FACT The appellant's husband did not obtain his U.S. citizenship until July 1999, more than 40 years after his active service ended. CONCLUSION OF LAW The criteria for establishing entitlement to burial in a VA national cemetery have not been met. 38 U.S.C.A. §§ 101, 2402 (West 2002); 38 C.F.R. § 38.620 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) redefined VA's duty to assist claimants in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, resolution of the appellant's claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits and the date the decedent obtained his U.S. citizenship. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). Nevertheless, in a November 2011 letter, the NCA did advise the appellant of the information necessary to substantiate the claim for burial in a national cemetery. In response, she provided additional information that the NCA considered in a February 2012 statement of the case. II. Criteria & Analysis The appellant's husband died in November 2011. The appellant seeks burial for her husband in a national cemetery. She relates that his last wish was to be buried in the same national cemetery with other veterans of World War II. Federal law provides that any citizen of the United States who, during any war in which the United States is or has been engaged, served in the armed forces of any government allied with the United States during that war, and whose last such service terminated honorably, may be buried in any open national cemetery under the control of the National Cemetery Administration. The person must be a citizen at the time of entry on such service and at the time of his death. 38 U.S.C.A. § 2402; 38 C.F.R. § 38.620. In support of her claim, the appellant submitted copies of award certificates and certificates of medals that reflected her husband's service with the Soviet Army, including Long Range Aviation from June 1941 to May 1945 and recognition of her husband's "bravery, perseverance, and courage for victory over Germany in the Great Patriotic War of 1941 to 1945." In November 2011 correspondence, the National Personnel Records Center (NPRC) advised the VA National Cemetery Scheduling Office (NCSO) that it was unable to positively identify a record of service for the appellant's husband. In February 2012, the appellant submitted a copy of her husband's Certificate of Naturalization issued by the Department of Justice, which documented that her husband was admitted as a U.S. citizen in July 1999. The Board acknowledges the appellant's wish to inter her husband in a VA national cemetery and her husband's military service with the Soviet Army during World War II from 1941 to 1945. Unfortunately, however, the Certificate of Naturalization reflects that the appellant's husband did not become a U.S. citizen until July 1999. Based upon the evidence presented, the appellant's husband is not entitled to burial in a VA national cemetery as a matter of law because he was not a U.S. citizen during his military service with the Soviet Army between 1941 and 1945 during World War II. This is a case where the law is dispositive. Sabonis v. Brown, 6 Vet. App. 426 (1994). The claim must be denied based upon a lack of entitlement under the law. ORDER The appellant's husband was not a U.S. citizen until July 1999 and is ineligible for burial in a national cemetery based on his military service with allied forces during World War II; the appeal is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs