Citation Nr: 21024449 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-06 729A DATE: April 22, 2021 ORDER Entitlement to a Government-furnished headstone or grave marker is denied. FINDING OF FACT The Veteran died in May 1989 and is memorialized by a marked grave at a private cemetery. CONCLUSION OF LAW The criteria for entitlement to a Government-furnished headstone or grave marker have not been met 38 U.S.C. § 2306 (2012); 38 C.F.R. § 38.631 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1942 to March 1946. He died in May 1989. The Appellant is his daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2012 decision letter in which the Department of Veterans Affairs (VA) National Cemetery Administration (NCA) denied the claim for a Government-furnished headstone or marker. Jurisdiction was subsequently transferred to the VA regional office (RO) in Pittsburgh, Pennsylvania. The Appellant requested a Travel Board hearing in her substantive appeal to the Board, via VA Form 9. In July 2017, the Board remanded the claim to schedule the Appellant for the requested hearing. However, in December 2020, the Appellant indicated that she no longer wanted a hearing. As such, the Board finds that the request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d). 1. Entitlement to a Government-furnished headstone or grave marker The Appellant contends that she is entitled to a Government-furnished marker to memorialize the deceased Veteran because his current headstone does not indicate that he is a veteran. See January 2013 Notice of Disagreement. 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). As noted above, the Veteran died in May 1989, prior to November 1, 1990. As such, a headstone or marker is not available under the applicable VA provision cited above. VA may also furnish government headstones and markers for the unmarked graves of several classes of decedents. 38 U.S.C. § 2306(a)(1), (3). The issue in this case is whether the Veteran’s grave is unmarked. No statute or VA regulation 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.” After a review of the evidence, the Board determines that the Appellant is not entitled to a Government-furnished headstone or grave marker on behalf of the Veteran. The Veteran died in May 1989. It is uncontroverted that the he is buried at St. Joseph’s Cemetery, a private cemetery, with a headstone. In her January 2013 Notice of Disagreement, the Appellant indicated that the Veteran’s grave has a headstone, but she is requesting a marker to memorialize his veteran status. In the March 2012 decision on appeal, NCA found that the Veteran died prior to November 1, 1990 and that his grave is already marked. As such, the Appellant’s claim for a Government headstone or marker was denied. Based on the foregoing, the Board finds that the Veteran’s grave is marked in a private cemetery. The criteria for entitlement to a Government-furnished headstone or grave marker for a veteran who died prior to November 1, 1990 requires that the Veteran’s grave be unmarked. 38 U.S.C. § 2306(a)(1), (3). Because the Veteran’s grave is marked, the criteria are not met. 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 claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). In closing, the Board notes that Congress amended the law governing the furnishing of headstones and markers by VA. 38 U.S.C § 2306(d)(4), the Miller-Blumenthal Veterans Health Care and Benefits Act of 2016. Specifically, the law now provides that, in lieu of a headstone or marker, VA may furnish a medallion or other device to signify a deceased individual’s status as a Veteran, which would be attached to the privately-purchased headstone or marker. In amending the statute, Congress intended to provide a benefit for veterans who would be eligible for a Government-furnished headstone or marker but for the date of their death. The Board encourages the Appellant to consider applying for this benefit by filing a VA Form 40-1330M, Claim for Government Medallion for Placement in a Private Cemetery. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.