Citation Nr: A21017149
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 200224-113251
DATE: October 22, 2021

REMANDED

The claim of entitlement to a Government-furnished headstone or grave marker is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1959 to May 1963. He died in January 2020. The appellant is his trustee.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2020 decision of the Department of Veterans Affairs (VA) National Cemetery Administration (NCA) in Janesville, Wisconsin.

The appellant submitted a timely VA Form 10182 (Notice of Disagreement) to opt-in to AMA in February 2020 and, in so doing, requested Evidence Submission Review by a Veterans Law Judge. As such, the Board may only consider the evidence of record prior to the expiration of the 90-day evidence submission period following the date of this election.

The Board finds that more development is necessary prior to final adjudication of the claim on appeal. 

The appellant asserts entitlement to a Government-furnished headstone to memorialize the deceased service member. If 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 (2012); 38 C.F.R. § 38.361 (2020). 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). The term "veteran" means 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. § 101(2); 38 C.F.R. § 3.1(d).

Notably, the Veteran served from June 1959 to May 1963. However, the Board notes that the claims file contains no official military records for the Veteran, not even a DD214 to confirm his military service. 

As a result, a remand is necessary to obtain information regarding the Veteran's service to ensure that he was discharged or released from his service under conditions other than dishonorable. 

The Board noted that AMA provides that remands are warranted based on VA's duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). The AMA structure allows remand only where VA has committed error in the duty-to-assist prior to the decision on appeal. After a thorough review of the record, the Board finds the arguments of the appellant to be compelling. In requesting additional development on remand in this case, the Board notes that the basis for this remand arises from deficiencies in the record existing prior to the appealed AMA decision. Therefore, a remand is necessary to ensure due process is followed and so that there is a complete record upon which to decide the appellant's claim. 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159.

The matters are REMANDED for the following action:

Obtain the service member's outstanding service treatment and personnel records, to include all documents pertaining to his service June 1959 to May 1963. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file.

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	James A. DeFrank, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.