Citation Nr: 18158073 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-14 159 DATE: December 14, 2018 ORDER The claim of entitlement to a Government-furnished headstone or grave marker is denied. FINDING OF FACT The Veteran died in 1904 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. § 38.630-38.633. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Union Army during the Civil War from August 1862 to January 1863. He died in 1904. The appellant is a relative of the Veteran. This appeal to the Board of Veterans’ Appeals (Board) arose from an December 2015 decision in which the Department of Veterans Affairs (VA) National Cemetery Administration (NCA) denied the claim for a Government-furnished headstone or marker for the Veteran. In December 2015, the appellant filed a notice of disagreement (NOD). In January 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 February 2015. The appellant asserts entitlement to a Government-furnished headstone or grave marker to memorialize the deceased Veteran. It is uncontroverted that the Veteran died in 1904. The appellant asserts that the Veteran’s grave is unmarked. VA is authorized to furnish a headstone or marker allowance for unmarked graves under 38 U.S.C. § 2306 and 38 C.F.R. §§ 38.630-38.633. Pursuant to 38 U.S.C. § 2306(a), the Secretary shall furnish, when requested, appropriate Government headstones or markers at the expense of the United States for the unmarked graves of the following: (1) any individual buried in a national cemetery or in a post cemetery; (2) any individual eligible for burial in a national cemetery (but not buried there) except for those persons or classes of persons enumerated in section 2402(4), (5), and (6) of this title; (3) Soldiers of the Union and Confederate Armies of the Civil War; (4) any individual described in section 2402(5) of this title who is buried in a veteran's cemetery owned by a State; and (5) any individual who at the time of death was entitled to retired pay under chapter 1223 of title 10 [10 U.S.C. §§ 12731 et seq.] or would have been entitled to retired pay under that chapter but for the fact that the person was under 60 years of age. The basic facts are not in dispute. The Veteran is buried in a private cemetery. The Veteran’s gravesite includes a marker that includes his last name and first initial. The issue here is whether the Veteran's grave is unmarked for purposes of applying the governing legal authority. Notably, no statute or VA regulation specifically defines what constitutes a “marked” or “unmarked” grave. 38 C.F.R. § 38.632(b)(4) defines “(h)eadstones or markers” as “headstones or markers that are furnished by the Government to mark the grave or memorialize a deceased eligible veteran or eligible family member.” In this instance, however, the Veteran’s gravesite is memorialized with his last name and first initial, as noted. This allows for identification of the Veteran’s plot and marks the Veteran’s gravesite. As there is a marker that identifies the Veteran and the plot, the Board concludes that his grave is not unmarked; hence, the criteria for a Government-furnished headstone or marker are not met. See 38 C.F.R. § 38.632(b)(4). 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 grave 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 grave 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