Citation Nr: 18151635
Decision Date: 11/20/18	Archive Date: 11/19/18

DOCKET NO. 14-13 031
DATE:	November 20, 2018
ORDER
The claim of entitlement to a Government-furnished headstone or grave marker is denied.
FINDING OF FACT
The Veteran died in November 1973 and is memorialized by a marked grave in a private cemetery.
CONCLUSION OF LAW
The criteria for a government-furnished headstone or marker for the Veteran’s grave are not met.  38 U.S.C. § 2306; 38 C.F.R. § 38.631.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1944 to December 1945.  He died in November 1973.  The appellant is his adult sister.
This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2013 decision in which the Department of Veterans Affairs (VA) National Cemetery Administration (NCA) denied the claim for a Government-furnished headstone or grave marker.  The appellant filed a notice of disagreement (NOD) in November 2013.  The NCA issued a statement of the case (SOC) in December 2013, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2014.
As a preliminary matter, the Board notes that the NCA identified the Veteran by a number other than the C-file number (listed above) or his Social Security number.  All documents are located electronically under the Veteran’s Social Security number.  All documents associated with the electronic file have been reviewed.
The appellant requested a hearing before a Veterans Law Judge.  A hearing was scheduled for a date in August 2017; however, the appellant failed to appear.  Another hearing was scheduled in August 2018; however, the appellant again failed to appear.  As she has provided neither good cause for failing to appear, nor requested a rescheduling of the hearing, the request for a Board hearing is deemed withdrawn.  See 38 C.F.R. § 20.704(d).
The appellant argues that she is entitled to a Government-furnished headstone or marker to memorialize the decedent.  It is uncontroverted that the Veteran died in November 1973 and is memorialized by a marked grave in a private cemetery.
Governing law provides that (if the individual requesting certified that a headstone or marker will be placed on the grave for which it was requested) 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. § 2306; 38 C.F.R. § 38.361.  Any person classified as a “veteran” is eligible for burial in a national cemetery.  38 U.S.C. § 2402; 38 C.F.R. § 38.620(a).
Nothing in the evidence of record indicates that the Veteran died on or after November 1, 1990, or that VA has authority to furnish a Government-furnished headstone or marker for placement on a privately-marked grave in a private cemetery if the Veteran died before November 1, 1990.  Because the Veteran died prior to November 1, 1990, he is not eligible for a Government-furnished headstone or marker on his privately-marked grave in a private cemetery. 
While the Board sympathizes with the appellant’s claim, the governing legal statutes establish very specific eligibility requirements for the provision of Government-furnished headstones or markers.  Such authority is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs.  See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a).  In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).
As, on these facts, there is no legal basis to award a Government-furnished headstone or marker, the appellant’s claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).
 
JACQUELINE E. MONROE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Michael Sanford, Counsel