Citation Nr: 1422293	
Decision Date: 05/16/14    Archive Date: 05/29/14

DOCKET NO.  10-27 640A	)	DATE
	)
	)

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


THE ISSUE

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


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran honorably served on active duty in the United States Navy from March 1944 to January 1946.  He passed away in July 1990, and the appellant is his son.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 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 passed away on July [redacted], 1990.

2.  The Veteran is interred at a private cemetery in a grave marked with a private headstone or marker.


CONCLUSION OF LAW

The criteria for a Government-furnished headstone or marker have not been met.  38 U.S.C.A. § 2306 (West 2002 & Supp. 2013); 38 C.F.R. § 38.631 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Resolution of this appeal rests solely on the interpretation of the law, rather than a dispute as to the underlying facts of this case.  No reasonable possibility exists that any additional assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013).  VA's duties to notify and assist are not applicable to matters in which the law, and not the evidence, is dispositive.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim.

In June 2010, the appellant, who is the son of the Veteran, filed an application for standard government headstone or marker, VA Form 40-1330.  On the application form, he indicated that the Veteran passed away on July [redacted], 1990; and that his body was subsequently laid to rest in a private cemetery grave.

A July 2010 memorandum in the file noted that the Veteran's gravesite is currently marked with a private monument stating the Veteran's name, date of birth, and date of death.  The existence of a current grave marker is not contested by the appellant.  

VA is authorized to furnish a headstone or marker for unmarked graves of soldiers. 38 U.S.C.A. § 2306 (2013).  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).  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). 

Initially, the Board finds the Veteran's grave site to be 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).  

Second, the Veteran passed away on July [redacted], 1990, prior to November 1, 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 is understandable.  Nevertheless, 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); Smith v. Derwinski, 2 Vet. App. 429 (1992).  

Where the law and not the evidence is dispositive, the claim must be denied due to lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  


ORDER

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


____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs