# D'Amico v. West

Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc.

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## D'Amico v. West, 12 Vet. App. 264 (1999) {#8205494}

*12 Vet. App. 264*

_D'Amico v. West, 12 Vet. App. 264, decided 1999-03-23._

HOLDAWAY, Judge:
The appellant, Patrick F. D’Amico, appeals the February 1997 decision of the Board of Veterans’ Appeals (BVA or Board) that determined that he had not submitted new and material evidence to reopen a March 1979 VA administrative decision that his character of discharge was a bar to eligibility for VA benefits. The Court has jurisdiction of this matter under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the Board.

I. FACTS

The appellant served on active duty in the U.S. Marine Corps from November 1960 to September 1964. The character of his discharge was “undesirable.” In September 1966, a VA administrative decision was issued that determined that the veteran’s discharge was under dishonorable conditions because of willful and persistent misconduct. In May 1977, the appellant applied to have his discharge upgraded under the “Department of Defense Discharge Review Program (SPECIAL).” In June 1977, the Secretary of the Navy issued a decision upgrading the appellant’s discharge. In November 1977, a VA regional office (VARO) received notice of the Department of the Navy’s decision. The letter indicated that the appellant had been issued a general discharge certificate, and an attached DD 214MC, Report of Separation from Active Duty (Form DD 214MC), indicated that the appellant’s discharge was under honorable conditions. In May 1978, the Department of the Navy issued another letter to the appellant stating the following:

Another review of your discharge has been completed by the Naval Discharge Review Board [ (NDRB) ] as required by Public Law 95-126. As a result of this review, the Board has made a preliminary determination that you would not qualify for upgrading under the new[ ] uniform standards for discharge review. The character of discharge, General or Honorable, that you received from, the previous review under the DOD — Special Discharge Review Program has not been changed.

(Emphasis added.) A June 27, 1978, final decision of the NDRB indicated that the appellant’s discharge classification was “GENERAL.”

In July 1978, the appellant applied for VA loan guarantee benefits. The VARO informed the appellant that it was making a character of discharge determination regarding his eligibility and informed him that he *266could submit evidence in support of his claim. An undated Reference slip, signed by the VA Director, Compensation and Pension Service (Director), stated the following:

This is a special upgraded discharge case reviewed under PL 95-126. The upgrade was DENIED upon a second review and entitlement to VA benefits is dependent on the original discharge. The language of the attached second review is ambiguous[;] therefore[,] this flash should remain with this document in the claims folder.

In November 1978, the appellant submitted a letter explaining the reasons for his absence-without-leave (AWOL) violations.

In March 1979, the Secretary issued an administrative decision that the appellant had been discharged under dishonorable conditions and that he was not eligible for VA benefits. As part of the decision, the adjudicator stated that the NDRB had determined that the appellant’s upgrade to a discharge under honorable conditions should not be confirmed. The Secretary sent a notice of the decision to the appellant. However, the appellant did not appeal the decision.

In May 1992, the appellant applied for service connection for residuals of a shoulder dislocation during service. As part of his claim, the VARO received a copy of the appellant’s Form DD 214MC that had been certified by the Department of the Navy. The certification stated, “I certify the original document to be evidence acceptable under VA Regulations 1200 Series.” The certification was dated May 27,1992. The VARO sent the appellant a letter in August 1992 stating that his discharge in 1964 was a bar to the payment of VA benefits and that he had been notified of that decision in September 1979. The letter also indicated that the special upgraded discharge he had previously received “was denied upon the second review by the service department’s review board.”

In September 1992, the appellant filed a Notice of Disagreement. The appellant also claimed that he had never received notice of the 1979 determination regarding his character of discharge. He also submitted a letter explaining that his periods of AWOL were caused by personal problems when he was seventeen years old, but that he had served honorably thereafter and deserved an honorable discharge and eligibility for VA benefits. In March 1993, the appellant submitted a VA Form 9, Appeal to Board of Veterans’ Appeals, stating that his evidence of an upgraded discharge, dated in March 1992, was new and material evidence. The appellant also stated that he was submitting a timely appeal in March 1992 to the 1979 determination. The Board denied the appellant’s request to reopen the 1979 determination that he was not eligible for VA benefits because he had not submitted any new evidence.

II. ANALYSIS

“A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran.” Holmes v. Brown, 10 Vet.App. 38, 40 (1997); see also Laruan v. West, 11 Vet.App. 80, 85 (1998) (en banc); Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991). “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). For purposes of characterizing an individual’s discharge from service, a discharge issued under honorable conditions is binding on VA. See 38 U.S.C. § 3.12(a) (1998). If a person was discharged under conditions other than honorable, including an undesirable discharge, the Secretary is required to make a determination regarding whether the discharge was issued under other than dishonorable conditions. See 38 C.F.R. § 3.12(c), (d). Where the Secretary determines that a person’s discharge from service was under dishonorable conditions, the payment of pension, compensation, or dependency and indemnity compensation benefits, based on that period of service, is barred. See 38 C.F.R. § 3.12(a)-(d).

Generally, a decision by a service-department discharge review board to upgrade a person’s discharge to honorable or general is sufficient to set aside any bar to VA benefits except a discharge pursuant to a general court martial. See 38 C.F.R. § 3.12(f). However, a discharge upgraded pursuant to *267the Department of Defense’s Special Discharge Review Program (Special Discharge Review Program), which became effective on April 5, 1977, is an exception to the general rule. See 38 U.S.C. § 5303(e)(2); 38 C.F.R. § 3.12(h)(3). No person who has been issued an other than honorable discharge, whose discharge was upgraded pursuant to the Special Discharge Review Program, is entitled to VA compensation or pension benefits unless the upgrade was based on a case-by-case review. See id. That review must have been based on “uniform published standards ... and procedures generally applicable to all persons administratively discharge or re- . leased from active ... service under other than honorable conditions.” 38 U.S.C. § 5303(e)(1).

The legislative history for section 5303 indicates that the Special Discharge Review Program was set up to award automatic discharge upgrades to persons who served during the Vietnam era and met specified criteria, unless there existed compelling reasons to the contrary. See H.R.Rep. No. 95-580, at 7-8, 10 (1977), reprinted in 1977 U.S.C.C.A.N. 2844, 2851. Congress found that the Special Discharge Review Program discriminated against former military personnel who had been administratively discharged under other than honorable conditions, but had not served during the Vietnam era. Id. at 10-13. For that reason, Congress provided that a service-department discharge review board must reconsider the facts relating to each discharge upgraded under the Special Discharge Review Program and issue a separate determination about whether or not, under generally applicable standards that existed prior to the Special Discharge Review Program, it would have granted the upgrade. Id. at 15. If the second decision was not favorable, the person would not be entitled to VA benefits, except for chapter 17 health-care treatment. Id. Pursuant to a compromise agreement on a related Senate bill, veterans could “keep whatever upgraded discharge ‘paper’ they received under any such ‘special’ program,” but eligibility for VA benefits would be based on the “second” determination. 123 Cong. Rec. 1307 (1977), reprinted in 1977 U.S.C.C.A.N. 2880.

In 1978, the NDRB issued a “second determination” finding that the appellant did not qualify for a discharge upgrade under the uniform standards. The appellant was able to retain the general discharge he received earlier, but it was not effective under section 5303(e) to establish entitlement to VA benefits. For eligibility purposes, the original character-of-discharge was still in effect. Based on the original undesirable discharge, the Secretary issued an administrative decision in 1979 that the appellant’s character of discharge was under dishonorable conditions and that it acted as a bar to VA benefits, except for chapter 17 health-care benefits.

A denial of veteran status is not subject to reopening under 38 U.S.C. § 5108. See Laruan, 11 Vet.App. at 85 (explaining that only persons who have established veteran’s status are entitled to the relaxed evidentiary standard under section 5108 of what constitutes “new and material” evidence); Sarmiento v. Brown, 7 Vet.App. 80, 84 (1994) (“Because [the] appellant ‘never attainted] the status of claimant,’ he did not submit any claim, well grounded or otherwise, and therefore[,] there was no finally denied claim which could have been reopened under 38 U.S.C. § 5108.”). However, a person is also not barred from subsequently applying for reconsideration of VA’s denial. See Laruan, 11 Vet.App. at 81-85 (holding that where an administrative decision in 1952 determined that the appellant was discharged under dishonorable conditions and the appellant subsequently applied to have his character of discharge changed, the BVA should have reviewed the application under the preponderance of the evidence standard instead of for “new and material” evidence under section 5108, and affirming the Board’s order denying benefits); Sarmiento, 7 Vet.App. at 83-84 (holding that when a person never attains the status of a “claimant” under title 38, the person “did not submit any claim, well grounded or otherwise, and therefore there was no finally denied claim which could have been reopened under [section 5108].”); see also Tulingan v. Brown, 9 Vet.App. 484, 487 (1996) (“[W]here a veteran has lost his status as a benefits-eligible claimant, he must establish it anew by a preponderance of the evi*268dence.”)- Regardless of the fact that an individual seeking to establish veteran status has been termed by the Court as a nonclaim-ant filing a nonclaim, there is nevertheless an application filed and an adjudication of that application, and the VA “action or determination” in the adjudication of the applicant’s claim of veteran status still becomes final, i.e., res judicata, if not timely appealed. See 38 U.S.C. § 7105(c). It is undisputable that an original VA denial of veteran status is appealable to the Board and then to this Court. See 38 U.S.C. § 7104(a). Under general civil and administrative law, in order to obtain readjudication of a final denial of veteran status, at a minimum, a person must submit some different factual basis that was not previously considered. See, e.g., 66 C.J.S. New Trial § 130 (1998).

In this matter, the appellant submitted a copy of his DD 214MC, which states that his discharge was under honorable conditions. An exact copy of that DD 214MC was considered by the Secretary in 1979. He also submitted a statement repeating that his periods of AWOL were caused by “personal problems as a 17[-]year[-]oId kid.” As noted by the Board, that information was also considered in 1979. Therefore, the appellant has not submitted any evidence that would have justified reconsideration of the 1979 final VA character-of-discharge decision. The Court holds that in this case, as a matter of law, the 1979 character-of-discharge decision was not subject to reconsideration absent presentation of a new factual basis, and the Court will affirm the decision of the Board. See Laruan, supra. The Board’s reliance on 38 U.S.C. § 5108 in determining that new evidence had not been submitted was nonprejudicial error. See 38 U.S.C. § 7261(b).

III. CONCLUSION

Accordingly, the Board’s February 1997 order denying relief is AFFIRMED based on the reasons provided by the Court which are divergent with those of the Board. See 38 U.S.C. § 7261(a)(3); Laruan, supra.

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## D'Amico v. West, 12 Vet. App. 357 (1999) {#8205516}

*12 Vet. App. 357*

_D'Amico v. West, 12 Vet. App. 357, decided 1999-05-03._

ORDER

PER CURIAM:
On March 23, 1999, in a panel opinion, the Court affirmed the February 1997 decision of the Board of Veterans’ Appeals that determined that he had not submitted new and material evidence to reopen a March 1979 VA administrative decision that his character of discharge was a bar to eligibility for VA benefits. D’Amico v. West, 12 Vet.App. 264 (1999). During the internal circulation of that order before its release, see the Court’s Internal Operating Procedures (IOP) at V.(a)(3), a judge requested en banc decision. On consideration of the foregoing, and it appearing quite clearly that: “The purpose of the Department [of Veterans Affairs] is to administer the laws providing benefits and other services to veterans and the dependents and the beneficiaries of veterans,” 38 U.S.C. § 301(b) (emphasis added), as defined by 38 U.S.C. § 101(2), and it further appearing that a decision of the full Court is not necessary either to ensure uniformity of decision or to resolve a question of exceptional importance — there being no question that appellant’s status is by § 301(b), supra, a bar to receiving veterans benefits, which include the nonadversarial, ex parte process of the Department and the benefit of the evidentiary equipoise provision of 38 U.S.C. § 5107(b), it is by the majority of the Court

ORDERED that en banc decision is DENIED.

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STEINBERG and KRAMER, Judges,
dissenting:

An en banc decision was requested by Judge Steinberg in this case in order to reconsider the holding of Laruan v. West, 11 Vet.App. 80 (1998) (en banc), that “before becoming entitled to ‘status’ as a claimant for [Department of Veterans Affairs (VA) ] benefits, an appellant ha[s] first to demonstrate by a preponderance of the evidence (1) that he or she was a ‘veteran,’ or (2) ‘veteran’ status for the person upon whose military service the claim for VA benefits was predicated.” Id. at 84 (quoting Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991)); see also Holmes v. Brown, 10 Vet.App. 38, 42 (1997) (“person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran”). Our own objections to the Laruan opinion were set forth in our dissent thereto, 11 Vet.App. at 86-91.1 They are as valid today as they were a year ago — • even more so, as an examination of the panel opinion in DAmico illustrates. See D'Amico v. West, 12 Vet.App. 264 (1999).

I. Secretary’s Opposition

Moreover, in a recent memorandum submitted to the Court in the ease of Trilles v. West, 12 Vet.App. 59 (1998) a case involving forfeiture of VA-benefits eligibility, the Secretary echoes our concerns over Laruan. See February 8, 1999, memorandum in response to Court’s December 8, 1998, briefing order in Trilles v. West, 12 Vet.App. 59 (1998), at 8 (“[t]he Secretary is unable to identify a statutory basis for the Court’s conclusion that a person must establish that he or she has the status of veteran ... *358before he or she may be considered a ‘claimant’ within the meaning of 38 U.S.C. § 5107(b)”), 7-10 (set forth infra). The Secretary recommends a remand in Trilles, supra, under Hodge v. West, 155 F.3d 1356 (Fed.Cir.1998), because the forfeiture decision there at issue is subject to reopening based on new and material evidence (page 13). The Secretary rejects the Court’s holding in Laman that “status” denials are not subject to reopening under section 5108 and states (page 8): “The Secretary has found nothing in the language or history of section 5107(b) or other provisions to suggest that the term ‘claimant’ was intended to refer only to one who has established by evidence that he or she has the status of a veteran, a survivor of a veteran, or a benefits-eligible claimant.” The Secretary goes on to state (pages 9-10): “Similarly, there is no indication that VA has required claimants to establish ‘benefits-eligible claimant’ status by a preponderance of evidence in order to be considered a ‘claimant’ or to obtain the procedural rights afforded by statute to ‘claimants.’ ”

II. D’Amico’s Creativeness

D’Amico is illustrative of why Laman should be overruled. To its credit, the D’Amico panel struggled valiantly to reconcile Laman, but ended up by concluding that a “nonclaimant” can not apply for a reopening, based on new and material evidence, of a prior denial of veteran “status” but can apply for a “reconsideration” of that denial based on “a new factual basis”. D’Amico, 12 Vet. App. at 267. The Court has thus created a process of “reconsideration” to be sought at a VA regional office (RO) and done so without any indication of the statutory or regulatory basis for such a process.

In contrast, Laman had suggested that every time a person seeks status there is a new “nonclaim”, as follows: (1) “Unless a claimant first carries the initial burden of establishing status as a veteran ... the laws administered by the Secretary and the resources of the VA are not applicable or available”, Laruan, 11 Vet.App. at 85; (2) a denial of veteran status, such as a determination that the former service member’s discharge was under dishonorable conditions, is not subject to reopening under 38 U.S.C. § 5108, ibid.; and (3) therefore, under Laruan, a person who has been denied veteran status may repeatecU^' attempt to refile a claim for benefits, and such reattempts are to be adjudicated under the preponderance standard in terms of the question of status. The panel in DAmico notes this Lantern-suggested syllogism by characterizing Laman as “holding that where ... in 1952[VA] determined that the appellant was discharged under dishonorable conditions and the appellant subsequently applied to have his character of discharge changed, the Board of Veterans’ Appeals (Board or BVA) should have reviewed the application under the preponderance of the evidence standard instead of for ‘new and material’ evidence under section 5108”. D’Amico, 12 Vet.App. at 267.

Apparently concerned about the incongruity of such a process of potentially interminable readjudication of the same question without finality, the panel in D’Amico has attempted to prevent such endless readjudi-cations by creating the RO “reconsideration” process. In so doing, the opinion purported to eschew “claim” and “claimant” status, but then used the term “new factual basis”, which is a construct strikingly reminiscent of the prohibition in 38 U.S.C. § 7104(b) against considering a disallowed “claim based upon the same factual basis” (emphasis added). Thus, the Court seemed to borrow title 38 terminology — applicable only (according to Laman) to a person who has established veteran status and is thus considered to be a “claimant” — in order to create a special evidentiary standard applicable to a reassertion of veteran status by such a so-called “nonclaimant”.

In doing so, the D’Amico panel may have inadvertently created a lower evidentiary standard for “nonclaimants” than exists for real “claimants” under 38 U.S.C. § 5108 and 38 C.F.R. § 3.156(a) (1998), because only “different” and “new” are used to define “factual basis” — and not “material”, which, at least under 38 C.F.R. § 3.156(a), means “so significant that it must be considered in order to fairly decide the merits of the claim”. See Elkins v. West, 12 Vet.App. 209, 219-20 (1999) (Holdaway, J., concurring). We use *359the word “may” with respect to creating a lower evidentiary standard only because other than in its use of “different” and “new”, the opinion provides no answer to the many questions that will inevitably arise during future VA adjudications of repeat status “nonclaims”. For example, when this special “status” evidentiary threshold is applied, is the credibility of the “new” evidence presumed? The only clue in the D’Amico opinion as to the answer to that question is in another of the opinion’s descriptions of La-man as “explaining that [under Laman ] only persons who have established veteran’s [sic] status are entitled to the relaxed eviden-tiary standard under section 5108 of what constitutes ‘new and material’ evidence”. D’Amico, 12 Vet.App. at 267 (citing Laruan, 11 Vet.App. at 85)2. Laman’s reference to this so-called “relaxed” evidentiary standard is followed by a cite to Evans (Samuel) v. Brown, 9 Vet.App. 273, 282-84 (1996); the attendant parenthetical for Evans — “(setting forth analysis applicable to determinations of what evidence constitutes ‘new and material’ for purposes of reopening and discussing presumption of credibility afforded to newly presented evidence)” — may suggest that the “presumption of credibility” is the “relaxed” evidentiary standard to which D’Amico and Laman were referring.

Another unresolved question created by D’Amico is what standard of review is to be applied by the Court to BVA decisions as to whether a • “nonclaimant” qualifies for a VAEO “reconsideration”. The Court appears to apply de novo review because the opinion articulates no deference to the Board but rather determines that there was no new factual basis “as a matter of law”. 12 Vet. App. at 268. However, applying de novo review to a decision as to whether to reconsider the status of a “nonclaimant” under D’Amico appears totally anomalous now that, under Elkins, 12 Vet.App. at 217-18, the Court has unanimously decided generally to defer to the Board as to whether evidence is “new” for the purpose of reopening under 38 U.S.C. § 5108.

III. Need to Overrule Laman

By refusing at this point to revisit Laman and its misbegotten concept of “status” as a separate element to be demonstrated before a person becomes a “claimant”, the Court is ignoring the binding opinion that Chief Judge Mayer wrote for the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Collaro v. West, which stated:

There are five common elements to a veteran’s application for benefits: status as a veteran, the existence of disability, a connection between the veteran’s service and the disability, the degree of the disability, and the effective date of the disability. Disagreement between the agency and the veteran about any of these may create an issue about which the agency reaches an adjudicative determination and which forms the substance of the veteran’s [Notice of Disagreement (NOD) ].

Collaro, 136 F.3d 1304, 1308 (Fed.Cir.1998) (emphasis added). Because NODs are filed by “claimants” under 38 U.S.C. § 7105(b)(2) and (d)(1), the above Collaro analysis by the Federal Circuit means that an application for benefits disallowed on the ground of veteran status is indeed a disallowed “claim”. See also 38 C.F.R. § 3.1(p) (1998) (“Claim-Application means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.”).

Moreover, Laman’s establishment of “non-claims” and “nonclaimants” runs counter to the statutory scheme set forth in 38 U.S.C. §§ 5101, 5102, 5103, and 5104 (regarding claims, forms, applications, and notices of decisions). As this Court unanimously proclaimed in Edenfield v. Brown, after parsing these sections: “[T]here is no mystery about what it takes to become a ‘claimant’ for VA benefits”; “a person claiming VA benefits ... on an application form provided by the Secretary” is “a claimant” for VA benefits. *360Edenfield, 8 Vet.App. 384, 389 (1995) (en banc).

The purpose of Laruan appears to be to apply the preponderanee-of-the-evidence burden to status questions — the opposite side of the coin from the equipoise doctrine established by 38 U.S.C. § 5107(b), under which the evidence must preponderate against the claim, once well grounded, in order for VA to deny it, see Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990). Our observations of the Court’s “status” cases under the Laman precedent suggests, however, that the Laman-manufactured burden ultimately makes virtually no difference in most “status” adjudications. Such is the case here where the appellant’s special upgraded discharge still did not entitle him, as a matter of law, to VA-benefits eligibility. Additionally, many eases are readily resolved under Duro v. Derwin-ski, because “veteran” status either is or is not established by U.S. service department records. Duro, 2 Vet.App. 530, 532 (1992) (findings by U.S. service department as to qualifying service for VA benefits “are binding on ... VA for purposes of establishing service in the U.S. Armed Forces”); see also 38 C.F.R. 3.203 (1998) (making service department verification a requirement for establishing that VA claimant served in the U.S. Armed Forces). Accordingly, it remains a mystery to us why the Court feels compelled to continue to adhere to a precedent that forces both the abandonment of the standard reopening analysis and the judge-made creation of an RO “reconsideration” process without reference to any applicable law or regulation.

In addition, in adhering to Laruan after the Secretary has authoritatively disavowed it, the Court ignores long-standing precedent of the Supreme Court, the Federal Circuit, and this Court, requiring deference to an interpretation of a statute by the agency that is charged with administering that statute if that interpretation is reasonable and not at odds with the statutory language or unambiguous legislative intent.3 Although the Secretary’s interpretation of existing law and regulation pertaining to Laruan has not, apparently, been memorialized in a regulation, General Counsel Precedent Opinion, or other VA issuance, that appears to be a function of there having been no occasion to belabor the obvious — that is, the theses of Laruan (and, for that matter, of D’Amico) are creations of the Court, without any basis in law, regulation, or precedent. Put simply, “who would’ve ever thunk it?”

IV. Inconsistent Court Precedent

Finally, we note that one possible interpretation of Laruan and Aguilar, and now DAmico, would seem to be to limit the approach there to determinations of “veteran” status only. However, the Court in Villeza v. Brown had, before Laman, already applied the preponderance burden against the widow of a veteran who challenged a 1974 VA decision declaring her to have forfeited her right to survivor benefits because of false affidavits that she had filed regarding her relationship with another man. Villeza, 9 Vet.App. 353, 355-57 (1996). The issue involved in Villeza had nothing to do with the status of her deceased husband, who had been killed in action during World War II, but rather with the widow’s status as what *361the Court then referred to as “a benefits-eligible claimant”. Id. at 357. The Court held that she could reestablish her eligibility status only if she had a preponderance of the evidence in her favor. Ibid. Very recently, however, the Court, without explanation or even recognition of Villeza, applied a traditional reopening analysis to a claim for a dependent’s allowance by the child of a veteran who was seeking to show her status as a so-called “helpless child” — one “who, before attaining the age of eighteen years, became permanently incapable of self-support”, 38 U.S.C. § 101(4)(A)(ii). See Fulkerson v. West, 12 Vet.App. 268 (1999) (per curiam order).

V. Conclusion

Our dissenting opinion in Laruan concluded with a quotation from Hans Christian Anderson: “‘But he doesn’t have anything on!’ said a little child.”4 Now, the Secretary has joined in pointing out this unfettered embarrassment. At the time of Laman, we called attention to the Court’s having hastened to judgment there “without the benefit of a conference of the judges, briefing, or oral argument.” Ibid. Now, the Secretary’s February 8, 1999, memorandum in Trilles, swpra, provides one of those missing processes and firmly rejects the theses of Laman. So that the public will have the benefit of the Secretary’s analysis of the Court’s precedents in and around Laman, we attach as an Appendix the pertinent analyses from pages 7-10 of that memorandum of law, which is directly applicable to the validity of Laman, even though Trilles involves an attempt to reopen a disallowance based on a VA determination of forfeiture of VA-benefits eligibility by the widow of a veteran.

Appendix

Excerpt prom Memorandum op Secretary op Veterans Affairs

(Filed February 8, 1999)

in

Trilles v. West, No. 97-912

... The cited cases reflect the Court’s conclusion that persons seeking to establish entitlement to benefits must establish that they have the necessary “status,” as a veteran, a survivor of a veteran, or a “benefits-eligible claimant,” before they can obtain the status of a “claimant” and the benefit of statutory provisions relating to VA “claimants.” See Laruan v. West, 11 Vet.App. 80, 85 (1998); Villeza v. Brown, 9 Vet.App. 353, 357 (1996), aff'd, 114 F.3d 1206 (Fed.Cir.1997) (table). The Court has concluded that the benefit-of-the doubt provisions of 38 U.S.C. § 5107(b) apply only to “claimants,” and, therefore, do not apply in determining whether an individual has the requisite “status” to be considered a claimant. See Laruan, 11 Vet.App. at 85-86; Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991). Accordingly, the Court has held that “status” must be demonstrated by a preponderance of evidence. See Laruan, 11 Vet.App. at 84-86. The Court’s precedents further indicate that questions of status are not subject to the provisions of 38 U.S.C. § 5108 governing reopening based on new and material evidence because, in the absence of proof of “status,” there is no valid claim which could be reopened. See Sarmiento v. Brown, 7 Vet.App. 80, 83-84 (1994).

Pursuant to the Court’s precedents, it appears that where VA has rendered a final decision of forfeiture against a person under 38 U.S.C. § 6103(a), such person would be required to establish by a preponderance of the evidence that he or she is a “benefits-eligible claimant.” Such proof may consist of evidence that the person did not make the false or fraudulent statements on which the forfeiture decision was based, evidence that the person has received a presidential pardon for the acts in question (see 38 C.F.R. § 3.669(d)), or evidence that the forfeiture decision was otherwise incorrect. The Secretary is unable to identify a statutory basis for the Court’s conclusion that a person must establish that he or she has the status of a *362veteran, a survivor, or a benefits-eligible claimant before he or she may be considered a “claimant” within the meaning of 38 U.S.C. § 5107(b). The term “claimant,” as used in section 5107(b) and other provisions of title 38, United States Code, is not expressly defined by statute or regulation. Cf. 38 C.F.R. § 20.3(g) (defining “claimant” for purposes of 38 C.F.R. part 20). Absent any evidence of a contrary legislative intent, the term “claimant” would generally be presumed to have its ordinary meaning, which refers to “[o]ne who claims or asserts a right, demand or claim.” Black’s Law Dictionary 247 (6th ed.1990). Accordingly, the term “claimant,” in and of itself, ordinarily does not imply any threshold evidentiary burden.

The Secretary has found nothing in the language or history of section 5107(b) or other provisions to suggest that the term “claimant” was intended to refer only to one who has established by evidence that he or she has the status of a veteran, a survivor of a veteran, or a benefits-eligible claimant. Notably, 38 U.S.C. § 5107(a) provides that a “person who submits a claim for benefits” from VA must submit evidence sufficient to justify a belief in a fair and impartial individual that the claim is well grounded, and that VA is required to assist “such a claimant” (i.e., one who has submitted such evidence) in developing the facts pertinent to the claim. To the extent that any claim for benefits is dependent upon establishing that the person seeking benefits is a veteran or survivor of a veteran or has not forfeited the right to VA benefits, the person may be required to submit evidence of such status in order to establish a well-grounded claim under section 5107(a). The express evidentiary burden stated in section 5107(a), however, may suggest that Congress did not intend to impose a separate evidentiary burden merely by its use of the term “claimant” in section 5107(b) and other statutes. Moreover, a conclusion that the term “claimant” refers only to one who has established the requisite “status” by a preponderance of evidence may suggest that persons who fail to establish such status are not entitled to such procedural rights as the right to notice of decisions under 38 U.S.C. § 5104, and the right to file a notice of disagreement under 38 U.S.C. § 7105(b)(2), because those statutes refer to “claimants.” It would appear unlikely that Congress intended to foreclose such procedural rights only with respect to determinations of “status” matters.

The Secretary has found no VA regulations or opinions indicating that proof of “status” is required before a person may be considered a claimant for purposes of applicable statutes and regulations, or that determination of that issue is governed by different procedures than apply to other elements of establishing entitlement to benefits. VA regulations provide that veteran status and survivor status generally must be established by specific types of evidence. See 38 C.F.R. §§ 3.203, 3.205, 3.210; but see 38 U.S.C. § 5124 (authorizing VA to accept claimant’s written statement as proof of marriage). However, the requirement of specific types of evidence does not suggest that individuals must establish status by a preponderance of evidence in order to be considered “claimants” or to have filed a “claim.” Similarly, there is no indication that VA has required claimants to establish “benefits-eligible claimant” status by a preponderance of evidence in order to be considered a “claimant” or to obtain the procedural rights afforded by statute to “claimants.” Rather, it appears that VA has consistently concluded that a forfeiture decision may be reviewed on the basis of new and material evidence or on the basis of clear and unmistakable error, in accordance with the established procedures governing those types of review.

. These objections were voiced initially by Judge Kramer in Aguilar v. Derwinski, 2 Vet.App. 21, 23-24 (1991) (Kramer, J., concurring); see also Burke v. Brown, 8 Vet.App. 376, 377-78 (1995) (per curiam order) (Steinberg, J., concurring); Sarmiento v. Brown, 7 Vet.App. 80, 87-88 (1994) (Kramer, J., concurring); Scott (Mary) v. Principi, 3 Vet.App. 352, 356 (1992) (Kramer, J., concurring); id. at 356-57 (Steinberg, J., concurring); Rogers v. Derwinski, 2 Vet.App. 419, 422 (1992) (Steinberg, J., concurring).

. Of course, at the time Laman used the term "relaxed”, Hodge v. West, 155 F.3d 1356 (Fed. Cir.1998), had not been issued. The term "relaxed” was then a total misnomer, at least in the view of the U.S. Court of Appeals for the Federal Circuit, which had indicated in Hodge that this Court's test (which Hodge overturned, 155 F.3d at 1360) for determining material evidence, a test in existence at the time of Laman’s issuance, was impermissibly restrictive.

. See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer"); FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 31-32, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981) (holding that agency interpretation of statute set forth in an Advisory Opinion rather than in a regulation was entitled to deference, "whether reached by adjudication or by rulemaking”, when interpretation is not "inconsistent with the statutory mandate” and does not "frustrate the policy that Congress sought to implement"); Smith (William) v. Brown, 35 F.3d 1516, 1527 (Fed.Cir.1994) (citing Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 152, 152—53, 154-57, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991), and characterizing that decision as follows: "formal Secretarial interpretations' command deference regardless of form they assume so long as they are not mere 'litigating positions' or 'post hoc rationalizations’ ”); Travelstead v. Derwinski, 978 F.2d 1244, 1250 (Fed.Cir.1992) (noting that lesser deference is given to "agency pronouncements that are merely interpretive" and that such deference would "vary[ ] with such factors as the timing and consistency of the agency’s position and the nature of its expertise”); Hermogenes v. Brown, 9 Vet.App. 75, 78 (1996) (deferring to Secretary's legal interpretation, expressed in the form of a BVA decision).

. Laruan, 11 Vet.App. at 91 (Kramer and Stein-berg, JJ., dissenting, quoting Hans Christian Andersen, The Emperor's New Clothes, in The Snow Queen and Other Tales 72, 77 (Pat Shaw Iversen trans., The New American Library 1966)).