Citation Nr: A21019016 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 200804-184659 DATE: November 30, 2021 ORDER Eligibility for a Government-furnished headstone or grave marker or a Government-furnished memorial headstone or marker is not established. FINDINGS OF FACT 1. L. D. served in the Confederate Army until his death in February 1865. 2. L. D. is not a veteran for Department of Veterans Affairs purposes. 3. L. D. is buried in an unmarked grave in Hollywood Cemetery, a private cemetery. 4. The location of L. D.'s unmarked grave is unknown and cannot be located. CONCLUSION OF LAW The criteria for eligibility for a Government-furnished headstone or grave marker or a Government-furnished memorial headstone or marker have not been met. 38 U.S.C. § 2306; 38 C.F.R. §§ 38.630, 38.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION In June 2020, the Agency of Original Jurisdiction denied eligibility for a Government-furnished memorial headstone or marker for L. D. In her July 2020 Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, the Appellant elected the Evidence Submission docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the Agency of Original Jurisdiction decision on appeal, as well as any evidence submitted by the Appellant with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Eligibility for a Government-furnished Headstone or Grave Marker or Memorial Headstone or Marker The Department of Veterans Affairs (VA) shall furnish, when requested, appropriate Government headstones or markers at the expense of the United States for the unmarked graves of soldiers of the Confederate Army. 38 U.S.C. § 2306(a)(3). The Secretary of the Department of VA shall furnish, when requested, an appropriate memorial headstone or marker for the purpose of commemorating an eligible individual whose remains are unavailable. Such a headstone or marker shall be furnished for placement in a national cemetery area reserved for that purpose under 38 U.S.C. § 2403, a veterans' cemetery owned by a State, a veterans' cemetery of a tribal organization; on land owned by or held in trust for a tribal organization; or, in the case of a veteran, in a State, local, or private cemetery. For purposes of this statute, a "veteran" is an individual who dies in the active military, naval, air, or space service of the United States of America. The remains of an individual shall be considered to be unavailable if the individual's remains have not been recovered or identified; were buried at sea, whether by the individual's own choice or otherwise; were donated to science; or were cremated and the ashes scattered without interment of any portion of the ashes. 38 U.S.C. § 2306(b). VA will furnish, when requested, a burial headstone or marker for the unmarked grave of soldiers of the Union and Confederate Armies of the Civil War, whose graves may be located in any type of non-national cemetery including state, tribal, private, or local government cemeteries. An "unmarked grave" means a grave in a cemetery where a Government-furnished headstone or marker has not been erected or installed at or by the grave, or the condition of a Government-furnished headstone or marker erected or installed at or by the grave warrants replacement; and a privately purchased and durable headstone or marker, from which the buried individual's name (if known) is ascertainable, has not been erected or installed at or by the grave; is damaged beyond repair; has deteriorated to the extent it no longer serves to identify the buried decedent (e.g., identifying elements of an inscription are not legible); or has been stolen or vandalized. 38 C.F.R. § 38.630. VA will furnish, when requested, a memorial headstone or marker to commemorate a veteran (which includes an individual who dies in the active military, naval, or air service), where the headstone or marker may be provided for a national cemetery, a State, local, or private cemetery, a veterans' cemetery owned by a State, or a veterans' cemetery owned by a tribal organization or on land owned by or held in trust for a tribal organization. 38 C.F.R. § 38.631. L. D. served in the Confederate Army until his death in February 1865. The record does not reflect, and the Appellant does not allege, that L. D. served in any capacity in the active military service of the United States of America. Therefore, L. D. may not be considered as a veteran for VA purposes. 38 U.S.C. § 101; 38 C.F.R. § 3.1. L. D. is buried in an unmarked grave in Hollywood Cemetery, a private cemetery. The private cemetery indicated that the location of L. D.'s unmarked grave is unknown and cannot be located. Therefore, eligibility for a burial headstone or marker cannot be established. 38 U.S.C. § 2306, 38 C.F.R. § 630. In addressing eligibility for a memorial headstone or marker, the Board finds that such eligibility may not be established for soldiers of the Confederate Army as they are not veterans for VA purposes. 38 U.S.C. § 2306, 38 C.F.R. § 631. Eligibility for either a Government-furnished headstone or grave marker or an appropriate Government-furnished memorial headstone or marker has not been established, therefore the benefit sought on appeal is denied. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING 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.