Citation Nr: 18152721
Decision Date: 11/26/18	Archive Date: 11/23/18

DOCKET NO. 16-00 382
DATE:	November 26, 2018
ORDER
The claim of entitlement to a Government-furnished headstone or grave marker is denied.
FINDING OF FACT
The Veteran died in July 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 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 February 1942 to January 1946.  He died in July 1990.  The appellant is the Veteran’s adult daughter.
This appeal to the Board of Veterans' Appeals (Board) arose from an March 2015 decision in which the Department of Veterans Affairs (VA) National Cemetery Administration (NCA) denied the claim for a Government-furnished headstone or marker.  In September 2015, the appellant filed a notice of disagreement (NOD).  In October 2015, a statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in December 2015.
The appellant asserts entitlement to Government-furnished headstone or marker to memorialize the deceased Veteran.  It is uncontroverted that the Veteran died in July 1990 and is memorialized by a marked grave in a private cemetery.
Governing law provides that, if the requesting individual requesting certifies 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 recognizes the honorable service of the Veteran, the governing 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.  See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).
 
JACQUELINE E. MONROE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Michael Sanford, Counsel