Citation Nr: 1550306	
Decision Date: 12/01/15    Archive Date: 12/10/15

DOCKET NO.  14-12 983	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs National Cemetery Administration in Elwood, Illinois


THE ISSUE

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


ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1942 to October 1945.  He died in December 1969, and the appellant is his next-of-kin (son).  This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 decision of the VA National Cemetery Administration, Memorial Programs Service, in Elwood, Illinois.


FINDING OF FACT

The Veteran died in December 1969, he is buried in a private cemetery (Morgan Hill, Ozark, Arkansas), and his grave is currently marked with a privately purchased headstone/grave marker.


CONCLUSION OF LAW

The criteria for basic eligibility for a Government-furnished headstone or grave marker for the Veteran are not met.  38 U.S.C.A. § 2306 (West 2014); 38 C.F.R. § 38.631 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the outcome of this claim is determined solely as a matter of applicable law (rather than by facts that are in dispute or that could potentially result in a favorable decision with further development), VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) do not apply.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 23, 2004); see also 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). 

The appellant has applied for a Government-furnished memorial headstone or grave marker for the deceased Veteran.  It is not in dispute that the Veteran, who died in December 1969, is buried in a private cemetery and that his grave is already marked with a private headstone or marker.  (See September 2013 (duplicate) claim (noting name/location of cemetery) and photo of the headstone in the claims file.)  What remains to be resolved is whether entitlement to a Government-funded headstone/marker is established. 

With respect to graves already marked with a private headstone or marker, a threshold requirement for a VA-furnished headstone or grave marker is that Veteran died on or after November 1, 1990.  38 C.F.R. § 38.631.  As the Veteran died prior to November 1, 1990, this basic eligibility requirement is not satisfied. 

The Board notes that the appellant is aware that this eligibility requirement is not satisfied and acknowledges the appellant's assertion that all veterans, particularly those who served in WWII, are entitled the bronze marker requested in recognition of meritorious service.  The Board is grateful for the Veteran's honorable service, and regrets that it cannot render a favorable decision in this matter.  However, the Board is bound by the law, and this decision is dictated by the relevant statute and regulations.  The Board is without authority to grant benefits on any other basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994); see also Smith v. Derwinski, 2 Vet. App. 429, 432-33   (1992). 

In sum, the applicable law states that if a veteran is buried in a private cemetery and the grave is already marked by a headstone or marker furnished at private expense, then VA cannot furnish another Government headstone or marker for the grave of the veteran unless the decedent died on or after November 1, 1990.  38 C.F.R. § 38.631(b).  Because the Veteran's death occurred prior to November 1, 1990, and his grave is already privately marked, the claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).




ORDER

Entitlement to a Government-furnished headstone or grave marker is denied.




____________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs