Citation Nr: 1638933	
Decision Date: 09/29/16    Archive Date: 10/13/16

DOCKET NO.  12-09 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri



THE ISSUE

Entitlement to a Government-furnished grave marker.



REPRESENTATION

Appellant represented by:  Daniel J. Mannion



WITNESS AT HEARINGS ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The Veteran served on active duty from January 1945 to November 1946 and from June 1952 to May 1956.  He died in August 1990, and the appellant in this case is the Veteran's nephew.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision of the Department of Veterans Affairs (VA) National Cemetery Administration Memorial Programs Service Processing Site in Ft. Leavenworth, Kansas.  

In July 2014, the appellant testified at a hearing before a Veterans Law Judge.  Unfortunately, technical difficulties prevented the production of a written transcript of that hearing.  In an October 2014 letter, the Board advised the appellant of the technical failure and offered him the option of attending a second Board hearing.  Later that month, the appellant indicated that he wished to attend a second Board hearing.  

In November 2014, the Board remanded the matter to afford the appellant the opportunity to testify at a second Board hearing, as he had requested.  In July 2016, the appellant testified at a hearing at the St. Louis RO before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the record on appeal.  At the hearing, the appellant submitted additional evidence, along with a waiver of initial RO consideration of that evidence.  38 C.F.R. § 20.1304 (2015).  

The appellant has executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of the above-listed representative in conjunction with the claim currently before the Board.  It is a special power of attorney, pursuant to 38 C.F.R. § 14.630 (2015), which allows for one-time representation by an individual who is not accredited by VA as required in 38 C.F.R. § 14.629.  It includes a statement signed by the appellant and the representative indicating that no compensation would be paid or charged for the services.


FINDINGS OF FACT

The Veteran died in August 1990 and is memorialized by a marked grave in a private cemetery.


CONCLUSION OF LAW

The criteria for entitlement to a government-furnished headstone or marker for the Veteran's grave have not been met.  38 U.S.C.A. § 2306 (West 2014); 38 C.F.R. § 38.631 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As a preliminary matter, the Board notes that the pertinent facts in this case are not in dispute.  Resolution of this appeal depends on the application of the law rather than on weighing of the evidence.  Under such circumstances, the VCAA is not applicable and any failure to meet the VCAA duty to assist and notify is harmless error.  See Valiao v. Principi, 17 Vet. App. 229 (2003).  In any event, given the nature of the issue on appeal, which involves a benefit provided for under Chapter 26 of Title 38, the VCAA is inapplicable.  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).

The Board also notes that appellant was provided an opportunity to testify at a hearing before the undersigned Veterans Law Judge.  During that hearing, the undersigned Veterans Law Judge identified the issue on appeal. and the appellant, through his testimony and questioning by his representative, demonstrated his actual knowledge of the applicable legal criteria.  Moreover, there is no indication in the record of any outstanding, relevant evidence.  Indeed, as set forth below, the relevant facts in this case are not in dispute.  As such, the Board finds that VA has fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  There has been no allegation otherwise.

For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided.


Background

The Veteran served honorably in the U.S. Army from January 1945 to November 1946 and in the U.S. Air Force from June 1952 to May 1956.  He died in August 1990.  

In September 1990, the Veteran's sister submitted a VA Form 21-530, Application for Burial Benefits.  Later that month, VA notified her that the maximum payment allowable for the Veteran's burial services had been made to the funeral home which had provided those arrangements.  

In October 1990, the Veteran's sister submitted a VA Form 21-8834, Application for Reimbursement of Headstone or Marker Expenses, indicating that she had paid $527.62 in September 1990 for the Veteran's headstone.  Later that month, VA authorized payment of $85 to the Veteran's sister, the maximum amount then payable under the law for the Veteran's marker.  

In January 2010, the appellant submitted an Application for Standard Government Headstone or Marker, VA Form 40-1330, as the Veteran's next of kin, seeking a flat bronze marker for the Veteran's grave, which he indicated was currently marked with a privately purchased marker.  

As set forth above, in a March 2010 decision, VA's National Cemetery Administration denied the claim, explaining that the law did not allow VA to provide a headstone or marker for a veteran who died before November 1, 1990, and whose grave was already marked.  

The appellant appealed the determination, asserting that the date of November 1, 1990, was arbitrary and that the claim should be included retroactively because the legislation providing for headstone or markers for veterans had been under active consideration at the time of the Veteran's death,.  

In support of the appeal, the appellant submitted a February 2012 letter from the funeral director of the private funeral home that handled the Veteran's burial arrangements.  The funeral director indicated that, at the time of the Veteran's death in August 1990, his family intended for the funeral home to make application for a VA marker, but that the funeral home neglected to submit the application.  He stated that, if he had he submitted the application to VA in August 1990, the application would have been granted, as the grave had been unmarked at that time.  

At the July 2016 Board hearing, the appellant testified that the funeral home handling the Veteran's burial had neglected to send in the application for a VA headstone.  As a result, the appellant indicated that his family had purchased a private headstone out of respect for the Veteran.  He also indicated that, although he was uncertain when the Veteran's headstone had been purchased, he believed that it had been "quite a few months" after his death.  See Transcript at page 3.  The appellant further testified that he would be willing to return the $85 paid to his mother (the Veteran's sister) in 1990 in exchange for receiving a bronze VA marker for his uncle's headstone.  The appellant's representative argued for equitable relief in the case.  


Applicable Law and Analysis

Under the applicable law, VA will furnish a headstone or marker for the grave of a veteran 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.  See 38 U.S.C.A. § 2306 (West 2014); 38 C.F.R. § 38.361.  Any person classified as a "veteran" is eligible for burial in a national cemetery.  38 U.S.C.A. § 2402 (West 2014); 38 C.F.R. § 38.620(a) (2015).

The pertinent facts in this case are not in dispute.  The Veteran died in August 1990 and he is buried in a marked grave in a private cemetery.  

In applying these undisputed facts to the applicable law, the Board concludes that the appeal must be denied.  Because the Veteran died before November 1, 1990, the legal requirements for eligibility are simply not met, and the Board must deny the appeal as a matter of law.  

Although the Board sympathizes with the appellant's claim and recognizes the honorable service of the Veteran, the law and regulations delineating the requirements for the provision of a government-furnished headstone or marker are specific and clear.  The Board is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2014).  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 its determination, the Board has carefully considered the appellant's contention the claim should be included retroactively because the current legislation providing for headstone or markers for veterans was under active consideration at the time of the Veteran's death.  As set forth above, however, the law as passed by Congress provides a clear eligibility date and does not provide an exception for veterans who died while the legislation currently in effect was pending.  

The Board has also considered the appellant's contentions to the effect that, if the funeral home submitted an application for a VA marker at the time of the Veteran's death, the application would have been granted, as his grave had been unmarked at that time.  As set forth above, however, the record shows that, in September 1990, VA did award the maximum benefit then legally payable for reimbursement of the Veteran's headstone or marker expenses.  Regardless, the law currently in effect does not provide an exception in cases where a funeral home neglected to submit an application for a VA marker or headstone.  

For the reasons discussed above, under the undisputed facts in this case, there is no legal basis upon which to award the benefit sought, and the claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Although the Board is without authority to grant equitable relief, the appellant is advised that he is entitled to petition the Secretary of VA directly and request that the Secretary exercise his discretionary authority to provide equitable relief under 38 U.S.C.A. § 503. See 38 C.F.R. § 2.7 (2015).


ORDER

Entitlement to a government-furnished grave marker is denied.




____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs