Citation Nr: 1604907 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 14-14 320 ) 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 grave marker. WITNESSES AT HEARING ON APPEAL The appellant and J.B. ATTORNEY FOR THE BOARD N. Kroes, Senior Counsel INTRODUCTION The appellant submitted an application for a Government supplied headstone or marker for the grave of B.W., a Revolutionary War veteran. B.W. apparently died in 1826. This matter comes to the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2013 decision by the Department of Veterans Affairs (VA) National Cemetery Administration, Memorial Programs Service Processing Site in Nashville, Tennessee. The Board notes that the appellant's April 2014 substantive appeal was not timely filed, as he was notified of the original denial of the claim on March 12, 2013, and the statement of the case was issued on December 10, 2013. See 38 C.F.R. § 20.302(b) (2015) (requiring a substantive appeal be filed within 1 year of notification of the appealed decision or 60 days of notification of the statement of the case, whichever is later). However, the December 2013 letter accompanying the statement of the case erroneously advised the appellant that he had until December 2014 to submit a substantive appeal. He did submit his substantive appeal prior to December 2014; therefore, VA has continued his appeal. Accordingly, the Board will take jurisdiction of this issue. See Percy v. Shinseki, 23 Vet. App. 37 (2009). FINDINGS OF FACT 1. B.W. served in the Massachusetts Regiment of the Continental Army during the Revolutionary War. 2. The exact location of B.W.'s remains is unknown. 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 2014); 38 C.F.R. § 38.630 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2015). These duties, however, are inapplicable to the claim on appeal which involves 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). In connection with the claim decided herein, the appellant has been notified of the reasons for the denial of the claim, and he has been afforded the opportunity to present evidence and argument with respect to the claim. During the hearing, the undersigned Veterans Law Judge identified the issue on appeal, focused on the elements necessary to substantiate the claim, and sought to identify any further information or development that was required to help substantiate the claim. The Board finds that these actions are sufficient to satisfy any fundamental due process owed the appellant. Law and Analysis Records reflect that the B.W. served in the Massachusetts Regiment of the Continental Army during the Revolutionary War. In February 2013, the appellant filed a VA Form 40-1330, Claim for Standard Government Headstone or Marker, requesting a VA-furnished headstone or grave marker for B.W.'s gravesite. In a February 2013 letter, an individual purporting to be B.W.'s next of kin authorized the appellant to apply for a headstone for B.W. The appellant also testified that he was appointed by the town to take care of the cemetery where he believes B.W. is buried. Board Hearing Tr. at 3. 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) (2015). The Board also notes that VA's General Counsel has held that a designated cemetery official may be a proper applicant for a government furnished headstone or marker. VAOPGCPREC 3-2015 (August 28, 2015). 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) (2015). VA is authorized to furnish a headstone or marker for unmarked graves of any individual eligible for burial in a national cemetery (but not buried there), with limited exceptions not relevant here. 38 U.S.C.A. § 2306(a)(2). Veterans are included in the classes eligible for internment in national cemeteries. See 38 U.S.C.A. § 2402(a)(1) (West 2014). A "veteran" is defined by statute as 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 2014). The United States Supreme Court has held that service to the United States begins only after the state militia is ordered into national service and arrives at the place of rendezvous. Houston v. Moore, 18 U.S. 1, 18-20 (1820) (Pennsylvania militia). In the appellant's initial request for a Government headstone or marker, he indicated that B.W. was buried at Stiles Cemetery. See VA Form 40-1330, dated February 18, 2013. In a later request, the appellant indicated that B.W. was buried at Webber Cemetery. See VA Form 40-1330, dated May 15, 2013. The appellant and J.B. testified before the undersigned Veterans Law Judge in August 2014. During that hearing, J.B. identified himself as a "professional genealogist." Board Hearing Tr. at 8. In previous correspondence, J.B. also noted that he was a local historian. See letters dated May 17, 2013, and November 29, 2013. During the hearing, the appellant and J.B. testified that, based on historical research, they believed that B.W. was buried in one of two plots at the Webber Cemetery. However, the appellant acknowledged that he did not know in which of the two plots B.W. was buried. Board Hearing Tr. at 11. Similarly, in the November 2013 notice of disagreement, the appellant wrote that "[a]fter substantial effort, we can ascertain [the Veteran's] approximate burial location, but no records or monuments were contemporaneously created, so nobody can state or prove an exact burial location." Before VA can furnish a headstone or marker for a veteran's grave, the gravesite must be identified. The provisions authorizing Government furnished headstones and markers require there be either a marked or unmarked grave. See 38 U.S.C.A. § 2306; 38 C.F.R. §§ 38.630, 38.631. However, in this case, the appellant's and J.B.'s testimony and statements indicate that, while they believe that they have narrowed down the location of B.W.'s gravesite to one of two plots, the exact location of B.W.'s gravesite is unknown. Their statements and testimony also suggest that further research would not reveal the actual location. As it is uncertain where B.W. is buried, VA cannot furnish a headstone or marker for the gravesite. A memorial headstone or marker could be available if B.W.'s remains were unavailable. See 38 U.S.C.A. § 2306(b)(1); 38 C.F.R. § 38.630. However, the provisions related to unavailable remains and memorial headstones or markers are not applicable in this case. See 38 U.S.C.A. § 2306(b); 38 C.F.R. § 38.630(c)(2). For remains to be considered unavailable one of four conditions must be met: (1) the remains have not been recovered or identified; (2) the remains were buried at sea; (3) the remains were donated to science; or (4) the remains were cremated and the ashes scattered without interment of any portion of the ashes. Id. The appellant does not contend that B.W.'s remains are unavailable. See Board Hearing Tr. at 4. Instead, he has alleged that B.W. is buried at Webber Cemetery. Board Hearing Tr. at 11. As such, B.W.'s remains are not unavailable, and the regulations regarding unavailable remains are not applicable in this case. 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 level of individual recognition that the appellant requests is understandable. However, the Board is bound by the law and is without authority to grant the benefit sought. As such, the claim must be denied. ORDER Entitlement to a Government-furnished headstone or marker is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs