Trilles v. West

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 97-192

VIRGINIA D. TRILLES, APPELLANT ,

V.

TOGO D. WEST , JR.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided February 15, 2000 )

Michael P. Horan and Karen B. Levin, of Washington, D.C., were on the pleadings for the

appellant.

Robert E. Coy, Acting General Counsel; Ron Garvin, Assistant General Counsel; Joan E.

Moriarty and Mary Ann Flynn, Deputy Assistant General Counsels; and Amy S. Gordon and Gregory

W. Fortsch, of Washington, D.C., were on the pleadings for the appellee.

Before NEBEKER, Chief Judge, and KRAMER, FARLEY, HOLDAWAY, IVERS,

STEINBERG, and GREENE, Judges.

GREENE, Judge, filed the opinion of the Court. KRAMER and STEINBERG, Judges, filed

a concurring opinion. FARLEY, Judge, filed a dissenting opinion in which NEBEKER, Chief

Judge, and IVERS, Judge, joined. NEBEKER, Chief Judge, filed a dissenting opinion.

GREENE, Judge: Virginia D. Trilles appeals a November 14, 1996, Board of Veterans'

Appeals (Board) decision that determined that no new and material evidence had been presented to

reopen a decision under 38 U.S.C. § 6103 forfeiting her VA benefits (except insurance benefits).

Record (R.) at 1-8. For the reasons that follow, the Court will vacate the Board's decision and

remand the matter for readjudication.

I. BACKGROUND

Mrs. Trilles was married to veteran Zosimo Trilles (R at 49) when he died in a Japanese

prisoner of war camp in May 1942 (R. at 10). In 1956, she filed a claim for VA benefits (R. at 39-

42) and was awarded VA dependency and indemnity compensation (DIC) as the veteran's

unremarried widow (R. at 57). In 1960, she admitted that she had lived in a marital relationship with

Santiago Penaflorida (Santiago) from 1943 through 1945 and that together they had had a child.

R. at 87-89, 91, 112-15. Consequently, her benefits were discontinued because VA no longer

recognized her as the unremarried widow of a veteran. R. at 99. She appealed that decision to the

Board. R. at 106. Her appeal was denied. R. at 109-10.

In 1970, Congress amended section 103(d) of title 38 of the United States Code to provide

that the "remarriage of a widow of a veteran shall not bar the furnishing of benefits to her as the

widow of the veteran if the remarriage has been terminated by death or has been dissolved by . . .

divorce . . . ." Pub. L. No. 91-376, § 4, 84 Stat. 787, 789 (1970) reprinted in 1970 U.S.C.C.A.N.

926, 929. In 1971, by administrative decision, Mrs. Trilles' VA benefits were restored based on that

amendment. R. at 190-92.

A VA field investigation was initiated in 1985 to confirm Mrs. Trilles' identity, the validity

of her marriage to the veteran, and her marital status after the restoration in 1971. R. at 269. During

this investigation, she provided a sworn statement attesting that, following the veteran's death, she

was forced to marry Augusto Manilla Malapitan (Augusto) in 1949. R. at 245-47. A marriage

certificate issued on May 25, 1987, confirmed that Virginia Trilles was married to Augusto on

February 26, 1949. R. at 261. Further, the investigation report included a copy of a death certificate,

issued on May 25, 1987, confirming that Augusto had died on January 9, 1955. R. at 259. This

certificate was issued by the office of the Civil Registrar, Iroson, Sorsogon, the Philippines. Id.

With this evidence, VA initiated action to terminate Mrs. Trilles' benefits, alleging that she had

deliberately presented fraudulent statements to VA when she declared in her 1956 application for

benefits and again in her depositions in 1959 and 1970 that she had not remarried since the veteran's

death in 1942. R. at 71-72, 197-98. VA notified Mrs. Trilles of its intent to terminate her benefits

and provided her with an opportunity to explain or present other evidence on her behalf. R. at 272-

74. She also was advised of her right to a hearing and to be represented by counsel. Id. In response,

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she attested that the marriage was invalid because it was the result of coercion and duress. Thus, she

claimed that she had never considered Augusto her husband. R. at 279-80. Two additional affiants

swore that in January 1949 they had heard that she had been "forcibly taken by armed men." R. at

282, 284.

In April 1988, the Veterans' Administration (now Department of Veterans Affairs)

Compensation and Pension Service issued an administrative decision that Mrs. Trilles had made a

fraudulent statement in connection with her application for VA benefits and thus declared, under

38 U.S.C. § 3503(a) (now 38 U.S.C. § 6103(a)), that she had "forfeited all rights, claims, and

benefits to which she might otherwise be entitled." R. at 292-95. In 1989, Mrs. Trilles filed an

appeal of this decision to the Board. R. at 312-13. In her appeal to the Board, her written statement

asserted the following: "In all humility, I admitted to have [sic] been married to Augusto Malapitan

only, when somebody furnished the VA my Marriage Contract or Married [sic] Certificate. At first

I don't believe that there was such marriage because Augusto Malapitan did not furnish me such

marriage contract . . . . Hence, I denied of having married to Augusto Malapitan on two occasions

that I was interviewed." Id. But, upon learning that a marriage certificate had been furnished to VA,

she "readily admitted to have married . . . Augusto Malapitan when [she] was interviewed on

March 19, 1987." Id.

A 1990 Board decision found that "the appellant, beyond a reasonable doubt, knowingly and

deliberately, made and submitted to . . . VA false statements concerning her marital relationship with

Augusto in obtaining VA benefits to which she had no legal entitlement," and declared that she "had

forfeited all rights, claims and benefits under all laws administered by . . . VA (except laws

pertaining to insurance benefits)," and denied revocation of forfeiture. R. at 324-26. She did not

appeal, and that decision became final.

Since the 1990 decision, Mrs. Trilles has attempted to reopen the forfeiture decision by

asserting that a "real" marriage to Augusto never occurred. In support of her contention, she has

offered a March 1989 certification from the Chief of the Certification Section of the Office of the

Civil Registrar General, National Statistics Office, Republic of the Philippines, stating that that

office could not verify any marriage between her and Augusto and that verification should be sought

from the office of the local Civil Registrar, Iroson, Sorsogon, where marriage records are kept. R. at

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315. She also submitted a similar certification dated September 1987 from the Office of the Civil

Registrar General stating that it could not verify the death of Augusto Malapitan. R. at 330. The

November 1996 Board decision here on appeal determined that the statements from the civil

registrars were not previously of record and were, therefore, new. The Board also determined that

although these statements were new, they had no probative value because they "do not show that the

marriage and the death did not take place, merely that the records could not be located at a later

date." R. at 6. Moreover, the Board found that because the claims file already contained the

marriage and death certificates at issue, the evidence presented was not sufficient to reopen Mrs.

Trilles' claim for revocation of the forfeiture of VA benefits. R. at 5-6. This appeal followed.

On August 5, 1998, there was a call for and the Court voted for full Court review of this

appeal. On December 8, 1998, the full Court ordered additional briefing. Trilles v. West,

12 Vet.App. 59 (1998) (en banc order). On February 8, 1999, the Secretary responded to the Court's

order; he asserts that although declaration of forfeiture bars a person from receiving benefits, it was

never contemplated by Congress or VA that the person could not attempt to reestablish eligibility

for benefits either by presenting new and material evidence or by demonstrating clear and

unmistakable error (CUE) in the previous decision declaring a forfeiture. Thus, he maintains that

the new-and-material-evidence analysis adopted and conducted by the Board was proper and presents

the correct question for review by the Court. Therefore, he contends that under Hodge v. West,

155 F.3d 1356 (Fed. Cir. 1998), the matter must be remanded to the Board to determine, under

38 C.F.R. § 3.156 (1998), whether new and material evidence exists to reopen the matter.

Mrs. Trilles, through counsel, also argues that a Hodge remand is in order. She also asserts

that a remand is required to allow the Board, in the first instance, to address the forfeiture questions

raised in the Court's briefing order.

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II. ANALYSIS

A. Applicable Statutes and Regulations

Concerning 38 U.S.C. § 6103(a) Forfeiture

Section 6103, title 38, U.S. Code, provides:

(a) Whoever knowingly makes or causes to be made or conspires, combines,

aids, or assists in, agrees to, arranges for, or in any way procures the making or

presentation of a false or fraudulent affidavit, declaration, certificate, statement,

voucher, or paper, concerning any claim for benefits under any of the laws

administered by the Secretary (except laws pertaining to insurance benefits) shall

forfeit all rights, claims, and benefits under all laws administered by the Secretary

(except laws pertaining to insurance benefits).

(b) Whenever a veteran entitled to disability compensation has forfeited the

right to such compensation under this section, the compensation payable but for the

forfeiture shall thereafter be paid to the veteran's spouse, children, and parents.

Payments made to a spouse, children, and parents under the preceding sentence shall

not exceed the amounts payable to each if the veteran had died from a service-

connected disability. No spouse, child, or parent who participated in the fraud for

which forfeiture was imposed shall receive any payment by reason of this subsection.

An apportionment award under this subsection may not be made in any case after

September 1, 1959.

(c) Forfeiture of benefits by a veteran shall not prohibit payment of the burial

allowance, death compensation, dependency and indemnity compensation, or death

pension in the event of the veteran's death.

(d)(1) After September 1, 1959, no forfeiture of benefits may be imposed

under this section or section 6104 of this title upon any individual who was a resident

of, or domiciled in, a State at the time the act or acts occurred on account of which

benefits would, but for this subsection, be forfeited unless such individual ceases to

be a resident of, or domiciled in, a State before the expiration of the period during

which criminal prosecution could be instituted. This subsection shall not apply with

respect to (A) any forfeiture occurring before September 1, 1959, or (B) an act or acts

which occurred in the Philippine Islands before July 4, 1946.

(2) The Secretary is hereby authorized and directed to review all cases in

which, because of a false or fraudulent affidavit, declaration, certificate, statement,

voucher, or paper, a forfeiture of gratuitous benefits under laws administered by the

Secretary was imposed, pursuant to this section or prior provisions of law, on or

before September 1, 1959. In any such case in which the Secretary determines that

the forfeiture would not have been imposed under the provisions of this section in

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effect after September 1, 1959, the Secretary shall remit the forfeiture, effective

June 30, 1972. Benefits to which the individual concerned becomes eligible by virtue

of any such remission may be awarded, upon application therefor, and the effective

date of any award of compensation, dependency and indemnity compensation, or

pension made in such a case shall be fixed in accordance with the provisions of

section 5110(g) of this title.

38 U.S.C. § 6103.

Section 501 of title 38, U.S. Code, provides:

(a) The Secretary has authority to prescribe all rules and regulations which

are necessary or appropriate to carry out the laws administered by the Department

and are consistent with those laws, including--

(1) regulations with respect to the nature and extent of proof

and evidence and the method of taking and furnishing them in order

to establish the right to benefits under such laws;

(2) the forms of application by claimants under such laws;

(3) the methods of making investigations and medical

examinations; and

(4) the manner and form of adjudications and awards.

(b) Any rule, regulation, guideline, or other published interpretation or order

(and any amendment thereto) issued pursuant to the authority granted by this section

or any other provision of this title shall contain citations to the particular section or

sections of statutory law or other legal authority upon which such issuance is based.

The citation to the authority shall appear immediately following each substantive

provision of the issuance.

38 U.S.C. § 501(a), (b). Under the Secretary's section 501 authority, VA regulations have been

prescribed to establish adjudicative procedures for rendering forfeiture decisions. These

implementing regulations are supplemented by VA manuals and internal memoranda on how

forfeiture decisions are to be made, including specific procedural protections that are to be afforded

to a VA benefits recipient (and to a claimant for VA benefits). These regulations have remained

substantially the same since they were promulgated in the early 1960s. See 38 C.F.R. §§ 3.900

through 3.905 (1998) at Appendix. The Court notes that in 1953, VA Regulation No. 2907(B) was

promulgated to ensure that VA applied these provisions "only in those cases wherein it is established

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beyond a reasonable doubt that fraud has been committed." See VA Regulations Claims Transmittal

Sheet 96, p. 157 (May 13, 1953), excerpted at Secretary's Response, Exhibit E, page 5 (emphasis

added). Although no longer prescribed by regulation, VA adheres to this beyond-a-reasonable-doubt

standard. R. at 3, 295, 324.

To address forfeiture cases arising outside the United States, where prosecution under the

U.S. criminal code and the attendant procedural rights for the accused could not be relied upon, VA

promulgated specific procedures for adjudicating allegations of fraud. Specifically, cases arising

from acts by benefits recipients residing in the Philippines are to be adjudicated under Chapter 36,

VA ADJUDICATION PROCEDURE MANUAL, M21-1 [hereinafter MANUAL M21-1]. Under these

provisions, the Manila VA Regional Office (RO) conducts a preliminary adjudication of the alleged

forfeiture and, if established, forwards the matter to the Director, Compensation and Pension Service,

VA Central Office. See 38 C.F.R. §§ 3.100(b), 3.905(a) (1998); see also MANUAL M21-1, Part IV,

¶ 36.08a (Apr. 3, 1992). Forfeiture will not be declared before the RO has sent to the person affected

a written notice containing the following: (1) A statement of the specific charges, (2) a detailed

statement of evidence supporting the charges, (3) notice of the right to submit evidence or a

statement in rebuttal or explanation within 60 days, (4) citation and discussion of the applicable

statute, and (5) notice of the right to a hearing and representation by counsel. See 38 C.F.R.

§ 3.905(b). Only after such a notice is a forfeiture decision to be made.

A declaration of forfeiture, which affects the provisions of VA benefits, is one that is a

decision referred to in section 511 of title 38, U.S. Code. This statute provides:

(a) The Secretary shall decide all questions of law and fact necessary to a

decision by the Secretary under a law that affects the provision of benefits by the

Secretary to veterans or the dependents or survivors of veterans. Subject to

subsection (b), the decision of the Secretary as to any such question shall be final and

conclusive and may not be reviewed by any other official or by any court, whether

by an action in the nature of mandamus or otherwise.

(b) The second sentence of subsection (a) does not apply to--

(1) matters subject to section 502 of this title;

(2) matters covered by section 1975 and 1984 of this title;

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(3) matters arising under chapter 37 of this title; and

(4) matters covered by chapter 72 of this title.

38 U.S.C. § 511. Further, section 7104(a) provides: "All questions in a matter which under section

511(a) is subject to decision by the Secretary shall be subject to one review on appeal to the

Secretary. Final decisions on such appeals shall be made by the Board." 38 U.S.C. § 7104(a). In

forfeiture cases, as in claims for VA benefits, see Cox v. West, 149 F.3d 1360 (Fed. Cir. 1998)

("section 7104 of title 38 confers jurisdiction on the Board over questions arising under section

511(a), and a claimant may in turn appeal an adverse Board ruling to the Court of Appeals for

Veterans Claims under 38 U.S.C. § 7252(a) (1994)"), sections 511 and 7104 give the person

adversely affected the right to appeal the forfeiture decision to the Board. Thus, as with claims for

VA benefits, the Secretary has promulgated rules allowing for final forfeiture decisions to be

reopened upon the presentment of new and material evidence or upon a showing of CUE in a

previous final decision. See 38 C.F.R. §§ 3.104(a), 3.105, 3.905(d), 20.1103, 20.1104 (1998).

B. Applicable Case Law and Analysis

Over the years, the Court has considered the question of VA forfeitures under 38 U.S.C.

§§ 6103 and 6104. Section 6104 provides for forfeiture of VA benefits in cases involving treasonous

acts. For these section 6104 cases, the Secretary has promulgated administrative adjudication

procedures similar to those governing section 6103 cases. See 38 C.F.R. §§ 3.902, 3.904(b) (1998).

In Reyes v. Brown, the Court considered the case of a veteran's widow seeking to reopen her

claim to remove VA's forfeiture of her VA benefits. Reyes, 7 Vet.App. 113, 114-15 (1994). She had

been receiving VA benefits since 1942. Id. In 1962, VA declared forfeiture of her benefits under

section 3503(a) (now 6103(a)) because she had concealed the fact that she was living in a marital

relationship with Esteban Oblena. Id. In 1970, she unsuccessfully sought restoration of her VA

benefits. In 1991, she sought to reopen her claim by submitting Oblena's death certificate. The

Board determined that the evidence submitted was not new and material and denied reopening. She

appealed. Applying a new-and-material-evidence standard under 38 U.S.C. § 5108, the Court, on

de novo review, also found that the evidence presented was not new and material and held that the

Board did not err by not reopening the appellant's claim. Id. at 115-16.

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In Villaruz v. Brown, the Court again employed a new-and-material-evidence reopening

analysis. Villaruz, 7 Vet.App. 561 (1995). In Villaruz, the appellant's rights to VA benefits had been

declared forfeited in 1956 because he had been found to have made false or fraudulent statements

to VA and to have rendered assistance to the enemy. Id. at 563. In 1983, the appellant sought to

reopen his claim for revocation of the forfeiture and provided additional evidence. Id. The Board

found that the appellant had submitted new and material evidence sufficient to reopen his claim, but

decided after reopening that the evidence was insufficient to revoke the forfeiture of benefits under

38 U.S.C. §§ 6103 and 6104. Id. at 564. The Court held, on de novo review, that the Board did not

err in reopening the appellant's claim for revocation of a forfeiture, id. at 565, but vacated the Board

decision and remanded the matter to the Board to provide an adequate statement of reasons or bases

in assessing the credibility of the appellant's new evidence, id. at 567.

However, in Villeza v. Brown, the Court, after determining that the appellant was indeed

seeking to reopen the forfeiture question, departed from recognizing that question as one requiring

the presentment of new and material evidence. Villeza, 9 Vet.App. 353, 355-57 (1996). Rather, the

Court determined that because the appellant's benefits had been declared forfeited, she was not a

"benefits-eligible claimant" and then held that she no longer possessed eligibility status. Id. at 357.

Relying on Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991) (holding "[a]s a threshold matter, one

claiming entitlement as the spouse of a veteran has the burden to come forward with preponderating

evidence of a valid marriage under the laws of the appropriate jurisdiction"), the Court held that the

appellant had to establish her status as a claimant by a preponderance of the evidence. Villeza,

9 Vet.App. at 357.

The Court extended the preponderance-of-the-evidence burden further still in Tulingan

v. Brown, 9 Vet.App. 484 (1996). In Tulingan, the veteran was granted service connection for a

wound sustained in 1949. Id. at 485. Later, VA determined that he had either directly or indirectly

rendered aid to the enemy and had thereby forfeited his VA benefits. Id. Tulingan's VA benefits

were restored in 1965 and declared forfeited again fifteen years later when the 1965 restoration was

found to be the result of CUE. Id. Tulingan again attempted to regain his benefits. In the early

1990s, the Board concluded that he had not submitted new and material evidence. He appealed to

this Court, which concluded that he had submitted new and material evidence and that the Board

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must reopen the claim and evaluate it in light of all the evidence, both old and new. Id. at 486. On

remand, the Board reviewed the evidence and sustained the forfeiture. On appeal again, the Court

treated the case differently from the way it had previously treated it. The Court ruled that "where

a veteran has lost his status as a benefits-eligible claimant, he must establish it anew by a

preponderance of the evidence." Id. at 487 (citing Villeza, supra). The Court held that the Board

did not err in sustaining the forfeiture. Id.

In none of these precedential cases did the Court recognize or discuss the VA regulatory

procedures established for forfeiture cases. Rather, in the more recent cases the Court created a

procedural concept that required stripping a benefits recipient or a claimant of his or her title 38

status and mandated that the person establish status anew by a preponderance of the evidence.

Because the Court failed to consider the promulgated VA forfeiture procedures, the same procedures

relied upon by the parties in this case, we now must revisit the forfeiture cases and review them in

the context of the statute and implementing regulations to determine if these longstanding regulations

and those court decisions are in accord with the statutory scheme.

C. Discussion

1. Statutory Construction

As noted earlier, both parties maintain that, although a section 6103 forfeiture in effect bars

a person from rights, claims, and benefits under title 38, it was not Congress' intent to preclude

permanently a person from challenging the basis for the forfeiture decision under procedures

established by the Secretary. Deciding the correctness or incorrectness of this position requires the

Court to interpret the statute as a whole and to determine the reasonableness and validity of VA's

implementing regulations.

The proper interpretation of a statute is to be made by the Court de novo. See Butts v. Brown,

5 Vet.App. 532, 539 (1993) (en banc). The starting point in interpreting a statute is examining the

language itself, for "if the intent of Congress is clear, that is the end of the matter." Cacatian v. West,

12 Vet.App. 373, 376 (1999) (citing Gardner v. Brown, 5 F.3d 1456, 1456 (Fed. Cir. 1993), aff'd,

513 U.S. 115 (1994)). The plain meaning of the statute is found in examining the specific language

at issue and the statute's overall structure. Id.; see also Meeks v. West, 12 Vet.App. 352, 354 (1999)

("Principles of statutory construction require that, where a statute has plain meaning, a Court shall

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give effect to that meaning . . . . [E]ach part or section [of a statute] should be construed in

connection with every other part or section so as to produce a harmonious whole." (internal

quotations and citations omitted)). However, if "it is clear that . . . the literal import of the text . . .

is inconsistent with the legislative meaning or intent, or such interpretation leads to absurd results,"

NORMAN J. SINGER , SUTHERLAND ON STATUTORY CONSTRUCTION § 46.07 (5th ed. 1992), the Court

will not reach that result. See United States v. Brown, 333 U.S. 18, 25-26 (1948); Brooks

v. Donovan, 699 F.2d 1010, 1011-12 (9th Cir. 1983); Demko v. University, 44 Fed. Cl. 83, 87 (1999).

The language of section 6103 plainly states that a person who commits fraud in connection

with his or her claim or award of benefits, loses all rights, claims, and benefits. However, it is

completely silent on the forfeiture process and whether Congress intended that a section 6103 bar

would forfeit procedural rights so as to prevent the affected person from ever revisiting or again

contesting the basis for the forfeiture decision. We do not find a clear intent of Congress manifested

in the statute as to either of these matters. Moreover, were we to conclude that the statute itself,

literally read, provided for the forfeiture of procedural rights afforded under title 38 of the United

States Code and the Code of Federal Regulations, we would hold that to be an absurd result when

considering the statute's overall structure and concepts of fundamental fairness and would proceed

to examine the legislative history. As the U.S. Supreme Court reasoned in Fong Haw Tan v. Phelan,

333 U.S. 6, 10 (1948), in a similar context:

Such a forfeiture [loss of permanent residency and deportation] is a penalty. To

construe this statutory provision less generously to the [person] might find support

in logic. But since the stakes are considerable for the individual, we will not assume

that Congress meant to trench on his freedom beyond that which is required by the

narrowest of several possible meanings of the words used.

Therefore, we proceed to examine the legislative history in order to clarify what procedure is

contemplated.

2. Legislative and Administrative History

A review of the legislative history of the 38 U.S.C. § 6103(a) forfeiture provisions indicates

that the current version is derived from Pub. L. No. 85-857, 72 Stat. 1105, 1240 (1958) (originally

codified at 38 U.S.C. § 3503). In 1959, this forfeiture provision was amended, Pub. L. No. 86-222,

§ 1, 73 Stat. 432 (1959), in part, to eliminate the authority of the VA Administrator (now the

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Secretary of Veterans Affairs) to impose forfeiture on a person who had committed a fraudulent act

when he or she resided, or was domiciled, in a State between the time of the commission of the fraud

and the expiration of the applicable criminal statute of limitations. See S. REP . NO . 664 (1959),

reprinted in 1959 U.S.C.C.A.N. 2216-22. When considering this amendment, Congress expressed

its desire to alleviate its concern that forfeiture was a severely harsh, duplicative punishment;

"impos[ed] . . . additional penalties . . . comparable . . . to other governmental agencies"; and was

applied inequitably within VA. Id. at 2220. It was believed that administrative forfeiture cases

within the United States could be eliminated in favor of reliance upon prosecuting fraud under the

U.S. criminal code. Id. at 2219-20. Further, it was noted that no other Federal benefits structure

permitted prosecution and administrative forfeiture for filing false or fraudulent statements in

connection with applying for or receiving the benefits. Id. at 2220. In the course of the legislative

process that brought about the liberalization of this forfeiture provision, specific recommendations

were made concerning the review of the forfeiture procedure. Among the recommendations was one

that "changes in the forfeiture program should be implemented by appropriate changes in the law and

Veterans' Administration administrative regulations." STAFF OF HOUSE COMM . ON VETERANS'

AFFAIRS, FORFEITURE OF VETERANS' RIGHTS, 85 Cong., 2d Sess., 3 (Comm. Print 196, June 26,

1958). Moreover, it was commented that a permanent bar would be too severe a penalty because the

administrative forfeiture procedure did not have the built-in safeguards of a trial. Id. at 7-8.

Notwithstanding these concerns and the amendment, a person who had been found to commit fraud

while not residing or being domiciled in a State remained subject to the forfeiture. See 38 U.S.C.

§ 101(20) (defining a state as "each of the several States, Territories, and possessions of the United

States, the District of Columbia, and the Commonwealth of Puerto Rico."). Additionally, section

6103(d)(1) authorizes forfeiture actions for acts occurring in the Philippine Islands after July 4, 1946,

the date of Philippine independence from its previous status as a territory of the United States. Thus,

Philippine citizens remained subject to forfeiture declarations under section 6103(d)(1) for their

fraudulent acts in connection with applying for or receiving VA benefits.

Historically, VA has treated attempts to overturn forfeiture declarations as claims to revoke

these forfeitures. Therefore, under VA practice, when one attempts to have forfeited benefits

restored, he or she is attempting to reopen a claim for revocation of forfeiture (i.e., to reopen the

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decision that declared a forfeiture of benefits). Despite some inconsistent terminology, the action

is essentially one to reopen the forfeiture matter in a procedure similar to reopening disallowed

claims for VA benefits as mandated by 38 U.S.C. § 5108. See VA Regulation 1530(D) (Sept. 13,

1935) (authorizing VA's Central Committee on Waivers and Forfeitures "[t]o review and modify its

decision upon the submission of new evidence"); VA Regulation 2910(F) (May 13, 1953)

(authorizing VA's Central Committee on Waivers and Forfeitures to "review and modify its decisions

upon the receipt of new and material evidence, or upon [CUE]").

The Secretary's February 1999 response includes the following statement concerning the

congressional history behind the enactment of section 6103.

In the report of a hearing concerning the 1959 legislation, a special

subcommittee of the House Committee on Veterans' Affairs reproduced a 1956 VA

pamphlet (VA Pamphlet 8-1) detailing the rules of procedure governing forfeiture

determinations by the Board on Waivers and Forfeitures, the organization within

VA's Department of Veterans Benefits which then had authority to make forfeiture

determinations. Forfeiture of Veteran Benefits: Hearings on H.R. 7106 Before a

Special Subcomm. of the House Comm. On Veterans' Affairs, 86th Cong., 1st Sess.

258-63 (1959) . . . . Sections 39 and 40 of that pamphlet expressly provided,

respectively, that declarations of forfeiture could be reconsidered on the basis of new

and material evidence or allegations of error in the forfeiture decision. Id. at

263 . . . . [P]rovisions authorizing review of otherwise final forfeiture decisions had

been included in VA regulations since 1935. . . . VA Regulation 2910(f) (May 13,

1953); . . . 38 C.F.R. § 5.10(f) (1956) (same as VA Regulation 2910(f)) . . . .

Response at 3-5.

Although VA's regulations do not expressly state the method of review of final forfeiture

decisions, 38 C.F.R. § 3.905(d) does provide that "[a] decision of forfeiture is subject to the

provisions of § 3.104(a)." Section 3.104(a) recognizes the finality of decisions by an agency of

original jurisdiction and provides that a "final and binding agency decision shall not be subject to

revision on the same factual basis except by duly constituted appellate authorities or except as

provided in § 3.105 of this part." 38 C.F.R. § 3.104(a) (1998). Section 3.105 permits revision of

a final decision based on CUE. 38 C.F.R. § 3.105 (1998). The language of section 3.104(a), "shall

not be subject to revision on the same factual basis," is similar to the language of 38 U.S.C.

§ 7104(b), which allows reopening upon the presentment of new and material evidence, as provided

for in 38 U.S.C. § 5108, of a claim previously disallowed by the Board. See also 38 C.F.R. § 3.156

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(1998). The above provisions, promulgated by the Secretary, thus authorize revoking a forfeiture

declaration because of CUE in that earlier decision declaring forfeiture or on the basis of new and

material evidence.

3. Deference to the Secretary's Interpretation of Statute and Regulations

It is the duty of this Court to "decide all relevant questions of law, interpret constitutional,

statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an

action of the Secretary." 38 U.S.C. § 7261(a)(1). Essentially, the Secretary urges the Court to

reconcile the conflicting forfeiture case law and to defer to VA's forfeiture procedures as a

reasonable interpretation of a statute in which Congress was silent concerning the procedures for

adjudicating and declaring forfeiture of benefits. In Chevron v. Natural Resources Defense Council,

the United States Supreme Court recognized that Congress frequently leaves certain details

unspecified in a statutory scheme, and delegates rulemaking authority to an agency to fill in the

details necessary to administer the statute. Chevron, 467 U.S. 837, 843 (1984). The Secretary has

that authority under section 501 and has promulgated regulations and procedures. "Such legislative

regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary

to the statute." Id. at 843-44; see also Morton v. Ruiz, 415 U.S. 199, 231 (1974); Hodge v. West,

155 F.3d 1356, 1360-61 (Fed. Cir. 1998). In Chevron, the Supreme Court provided the following

guidance to reviewing courts:

When a court reviews an agency's construction of the statute which it

administers, it is confronted with two questions. First, always, is the question

whether Congress has directly spoken to the precise question at issue. If the intent

of Congress is clear, that is the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress. If, however, the

Court determines Congress has not directly addressed the precise question at issue,

the court does not simply impose its own construction on the statute, as would be

necessary in the absence of an administrative interpretation. Rather, if the statute is

silent or ambiguous with respect to the specific issue, the question for the court is

whether the agency's answer is based on a permissible construction of the statute.

Chevron, 467 U.S. at 842-43 (footnotes omitted). The Secretary argues as to Congressional intent:

Nothing in the language or history of the 1959 statute expressly addressed the

validity of the VA procedures concerning review of forfeiture decisions based on new

and material evidence or [CUE]. However, Congress' awareness of the provisions

permitting such review, coupled with Congress' stated concerns that forfeiture was

14

a severe penalty and that inequities existed in VA's administration of the forfeiture

provisions, may suggest that Congress did not intend to insulate forfeiture decisions

from review under the generally available mechanisms for reopening or revising

otherwise final VA decisions.

Secretary's Response at 4-5.

The Court is persuaded that the Secretary's view of Congress' intent in enacting this statute

has merit. A conclusion that a forfeited benefits recipient or claimant would be permanently barred

from filing future claims for other benefits or from challenging the basis of the forfeiture decision

is not supported when construing every part or section of the statute and would yield an absurd

result. After close scrutiny of all provisions of section 6103, what becomes most clear is Congress'

intent as expressed in the legislative history to ameliorate the severe and draconian nature of the

forfeiture statute. Moreover, as the legislative history demonstrates, and as pointed out by the

Secretary and the appellant, Congress reviewed and did not express any disapproval with the

then-current VA adjudicative forfeiture procedures promulgated by the Secretary. See FORFEITURE

OF VETERAN BENEFITS: HEARINGS ON H.R. 7106 BEFORE A SPECIAL SUBCOMM . OF THE HOUSE

COMM . ON VETERANS' AFFAIRS, 86th Cong., 1st Sess. 258-63 (1959) (House Committee's detailed

description and reproduction of pamphlet outlining VA procedures covering forfeiture decisions).

That Congress intended no blanket forfeiture is evidenced by subsections (b) and (c) of section 6103.

For example, disability compensation continues in a determined amount to eligible family members

who did not participate in the fraudulent act; likewise, a veteran who has forfeited rights under

section 6103 does not forfeit the right to a burial allowance or the right for his qualified and eligible

dependents to claim death compensation, dependency and indemnity compensation, or death

pension. See 38 U.S.C. § 6103(b) and (c).

As the foregoing discussion illustrates, Congress did not address the precise question of the

procedures to be followed in forfeitures. When Congress was considering amending the statute, VA

already had established procedures in place of which Congress was fully aware and to which

Congress had given tacit approval. See Helvering v. R.J. Reynolds Tobacco Co., 306 U.S. 110, 114-

15 (1939) (where Department of Treasury had embodied administrative construction of definition

of "gross income" in regulations and where Congress had not amended statutory definition of "gross

income" in successive revenue acts, "Congress must be taken to have approved the administrative

15

construction and thereby to have given it force of law"); see also Cammarano v. United States, 358

U.S. 498, 510-11 (1959) (failure of legislative body to amend ambiguous statute when agency

adopted unambiguous regulation interpreting that statute supported "conclusion that the regulation

was not inconsistent with the intent of the statute" (internal quotations and citations omitted)); York

v. Fed. Home Loan Bank Bd., 624 F.2d 495, 499 (4th Cir. 1980) (in view of "deference which is to

be accorded an agency's construction of the statute it is authorized to enforce" and fact that Congress

had been apprised of Bank Board's actions by agency itself, court held that "by declining to act

despite the Bank Board's known policy . . . , Congress has tacitly approved the . . . action").

In general, this Court defers to a regulatory construction of a statute that is adopted by the

Secretary if that construction is consistent with the language of the statute and is a reasonable

interpretation of the law. See McGuire v. West, 11 Vet.App. 274, 278-79 (1998). Additionally, the

"Supreme Court has counseled that special deference must be accorded to an agency's

contemporaneous interpretation of its founding statutes, especially when the interpretation has

remained in effect for a long period of time and Congress has never expressed its disapproval."

Lorenzano v. Brown, 4 Vet.App. 446, 450 (1993) (citing EEOC v. Associated Dry Goods Corp.,

449 U.S. 590, 600 n.17 (1981)). In revising and refining the forfeiture statute, Congress left

untouched VA's preexisting interpretation and historical procedures implementing that statute. The

Secretary has acted within his statutory authority under 38 U.S.C. § 501 in establishing regulations

for forfeiture adjudications and for their revision by reopening forfeiture declarations upon the

presentment of new and material evidence or by findings that there was CUE in the previous

forfeiture decision. Reviewing the VA regulations and the Secretary's forfeiture review practices in

this context and mindful of the penal nature of forfeiture, see Fong Haw Tan, supra, we hold that

they are promulgated under a permissible construction of the statute and constitute plausible and

reasonable interpretations of the law. See Winn v. Brown, 8 Vet.App. 510, 515 (1996) (citing

Chevron); Lorenzano, supra. Therefore, we will follow the Supreme Court's counsel and accord

special deference to those VA interpretations and read the statute so as to impose its penalties no

more broadly than "that which is required by the narrowest of several possible meanings of the words

used." Fong Haw Tan, supra.

16

Because we defer to the Secretary's regulations, our previous holdings in forfeiture cases that

did not accord such deference lose their validity. By not recognizing in those cases the Secretary's

forfeiture regulations and procedures and determining if they reasonably interpret the statute, the

Court improperly negated them. See Chevron, supra; Hodge, 155 F.3d at 1364 (holding that this

Court erred in not applying VA regulation 38 C.F.R. § 3.156(a) on reopening disallowed claims).

Accordingly, we must overrule these decisions (Villeza and Tulingan, both supra) where the Court

has failed to recognize the regulatory adjudicative procedure and in its decisions has held that the

appellant has lost status as a benefits-eligible claimant. We now hold that a VA benefits recipient

or claimant who has been the subject of a final decision declaring forfeiture of eligibility for VA

benefits may have that final decision reopened upon the presentment of new and material evidence

or revised based on a finding of CUE in the original forfeiture decision.

D. Applying the New-and-Material-Evidence Standard

to Reopen Declarations of Forfeiture

In this case, the Board applied the criteria for reopening on the basis of new and material

evidence enunciated in Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (requiring that "material"

evidence be "relevant [to] and probative of the issue at hand" and present a "reasonable possibility

that the new evidence, when viewed in the context of all the evidence, both new and old, would

change the outcome"). See also Sutton v. Brown, 9 Vet.App. 553, 562 (1996); Evans v. Brown,

9 Vet.App. 273, 283 (1996); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Justus v. Principi, 3 Vet.App.

510, 513 (1992). However, the Colvin materiality test was overruled by the U.S. Court of Appeals

for the Federal Circuit (Federal Circuit) in Hodge for purposes of reopening disallowed claims for

veterans' benefits. Hodge, supra. In Hodge, the Federal Circuit held that the VA regulation on

reopening, 38 C.F.R. § 3.156(a), provided a reasonable interpretation of the materiality requirement

of 38 U.S.C. § 5108 "for purposes of reopening claims for the award of veterans' benefits." Id. at

1362. Recognizing the pro-claimant environment created by the general VA statutory scheme, the

Federal Circuit determined that the application of concepts such as were involved in the Social

Security adjudication process, which the Federal Circuit characterized as a system that was not

designed to be "strongly and uniquely pro-claimant" -- in this instance a requirement that there must

be a reasonable possibility that new evidence would change the outcome of the claim -- was

17

inappropriate. The Federal Circuit expressed a concern that applying such a strict standard to the

VA nonadversarial process might undermine the intended operation of the veterans' benefits system

by altering its traditional beneficial character. Id. at 1356-57.

Under currently applicable law, then, the Secretary must reopen a previously and finally

disallowed claim when "new and material evidence" is presented or secured. See 38 U.S.C. §§ 5108,

7104(b), 7105(c); 38 C.F.R. § 3.156(a) (1998). When a claim to reopen is presented under section

5108, an analysis is triggered that may entail three steps. See Winters v. West, 12 Vet.App. 203, 206

(1999) (en banc). The first step involves a determination as to whether the evidence presented or

secured since the last final disallowance of the claim is new and material. See 38 C.F.R. § 3.156(a).

If the Secretary determines that the evidence is new and material, he must then reopen the disallowed

claim and determine "whether the appellant's claim, as then reopened, is well grounded in terms of

all the evidence in support of the claim, generally presuming the credibility of that evidence". Elkins

v. West, 12 Vet.App. 209, 218-19 (1999) (en banc); see also Winters, 12 Vet.App. at 206-07. If the

claim is not well grounded, that is the end of the matter. See Winters, 12 Vet.App. at 206. The

Board in the November 14, 1996, decision on appeal determined that the evidence submitted by Mrs.

Trilles, although new, was not probative of the issue whether she had committed fraud. Hence, the

Board decided that the new evidence was insufficient to reopen her claim.

Against the backdrop of Hodge and Elkins, we must decide the appropriate remedy for this

case. The Court acknowledges that efforts to overturn forfeiture decisions do not fit perfectly into

the case law applicable to the nonadversarial VA claims adjudication process. As discussed in part

II.C., above, the Secretary has determined that the decision to declare a forfeiture can be revisited

on specific allegations of CUE in the previous forfeiture declaration or when new and material

evidence has been presented. Although these concepts of CUE and reopening on the basis of new

and material evidence are generally associated with the VA pro-claimant nonadversarial claims

adjudication process, see Hodge, 155 F.3d at 1361 n.1 (citing Brown v. Gardner, 513 U.S. 115, 117-

18 (1994)), forfeiture action is an adversarial process initiated by the Secretary to protect the public

fisc from false or fraudulent claims and it must be declared "beyond a reasonable doubt." Because

of its adversarial nature, the forfeiture process is not unlike the procedure for reopening verdicts in

the criminal sector and adverse decisions by most administrative agencies. In criminal cases, it has

18

been held that a new trial must be granted only when the new evidence is material, that is, when there

is a "reasonable probability that . . . the result of the proceeding would have been different." United

States v. Bagley, 473 U.S. 667, 682 (1985). In somewhat adversarial administrative arenas, such as

adjudications by the Social Security Administration, in order to reopen a previous decision there

must be a "reasonable possibility that [the new evidence] would have changed the outcome of the

Secretary's determination." Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981); see Cox,

5 Vet.App. at 99 (summarizing Social Security law in ten Circuits and concluding that "reasonable

possibility" of outcome change test "represents the unanimous view of all ten circuit courts of

appeals that have addressed this aspect of the standard for reopening [Social Security Disability]

cases on the basis of 'new and material' evidence"); see also Woolf v. Shalala, 3 F.3d 1210, 1215 (8th

Cir. 1993) (showing that eleven circuits have now adopted that test). Here, VA declared forfeiture

against Mrs. Trilles (after having afforded her the procedural protections that normally accompany

adjudications that may result in adverse decisions) only after she was found beyond a reasonable

doubt, a standard much higher than the one involved in claims adjudication, to have committed acts

requiring forfeiture of her benefits.

Nevertheless, and in light of Hodge and Elkins, both supra, because of our deference to the

Secretary's procedures for deciding cases involving revocation of forfeitures, the Court believes that

it would be a preferable procedure, as the parties urge, for the Secretary and the Board first to have

an opportunity to address, in light of the adversarial nature of VA forfeiture, discussed above, what

constitutes new and material evidence under 38 C.F.R. § 3.156(a) and 38 U.S.C. § 5108 for purposes

of reopening prior forfeiture decisions. Cf. Carbino v. Gober, 10 Vet.App. 507, 511 (1997)

(declining to address matter not addressed by the Board and noting that declination is also based on

the belief that the "Secretary, the Board, and the General Counsel ought first to address the issue").

Therefore, we will vacate the Board decision pursuant to Elkins and Hodge, both supra, and remand

for readjudication in order for the Secretary and the Board to address in the first instance what

evidence is required for Mrs. Trilles to reopen the VA-benefits-eligibility forfeiture imposed upon

her by evidence found to show beyond a reasonable doubt that she had committed fraud in seeking

such benefits.

19

IV. CONCLUSION

Accordingly, the order denying relief contained in the Board's November 14, 1996, decision

is VACATED and the matter is REMANDED for expeditious readjudication consistent with this

opinion. See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). On remand, the appellant will be free

to submit additional evidence and argument on the remanded claim in accordance with

Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court notes that

a remand by this Court and by the Board confers on an appellant the right to VA compliance with

the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance

with those terms. See Stegall v. West, 11 Vet.App. 268, 271 (1998). A final decision by the Board

following the remand herein ordered will constitute a new decision that, if adverse, may be appealed

to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days

after the date on which notice of the new Board final decision is mailed to the appellant. See Marsh

v. West, 11 Vet.App. 468, 472 (1998).

VACATED AND REMANDED.

KRAMER and STEINBERG, Judges, concurring: We concur wholeheartedly in the

excellent majority opinion but write separately to address the dissenting opinions. Initially, we wish

to express our emphatic agreement with the sentiments, eloquently expressed by the dissenters and

the distinguished sources upon which they rely, regarding the traditional and continuing importance

of venerating and providing for veterans (and their eligible family members). We also cannot deny

the obvious allure of creating a system where the claims of honest, deserving veterans (and honest,

deserving individuals claiming through veterans) are adjudicated in a more benevolent manner than

the claims of dishonest, less deserving claimants. However, in an attempt to construct such a system,

it appears that our dissenting colleagues have become lost in a maze of conflicting arguments and,

even more importantly, have failed to recognize that, simply put, there is no statutory or regulatory

authority to support their views. Indeed, the only scintilla of support for the dissenters' position

derives from the flawed caselaw that they themselves have woven out of whole cloth as a mechanism

to implement their policy views.

20

In attacking the majority's application of a new and material evidence standard to forfeiture

decisions, our dissenting colleagues admonish the majority for failing to recognize that, pursuant to

38 U.S.C. § 6103(a) "'all rights, claims and benefits under all laws administered by the Secretary,'"

including the procedural benefits of 38 U.S.C. § 5108, are lost upon forfeiture. Infra at __, slip op.

at __ (quoting 38 U.S.C. § 6103(a) with emphasis added). The dissenters forcefully assert that there

is "one and only one exception to the emphatic 'all . . . all' proscription" of section 6103(a)--the

exception pertaining to insurance benefits. Yet they further proclaim that, although a forfeitee loses

"'all' title 38 procedural . . . rights and benefits afforded to veterans and those eligible family

members," the loss of such procedural rights does not prevent a forfeitee from having title 38

benefits, rights, and claims restored by "submitting preponderating evidence to show that the factual

basis for the forfeiture decision was wrong." Infra at __, slip op. at __. The dissenters then conclude

that the majority, in applying section 5108 to forfeiture decisions, has given away rights "to which

only veterans are entitled" and which are "reserved for claimants untainted by fraud." For many

reasons, as discussed below, we find the dissenters' analysis to be severely flawed and unpersuasive.

First, because the dissenters conclude that procedural rights are among the rights lost under

section 6103(a), and because they maintain that the insurance exception is the sole exception to the

statutory mandate that all rights are forfeited under section 6103(a), the logical conclusion of the

dissenters' argument would be that a forfeiture decision, once final, would remain forever in effect

--there being no available procedural method pursuant to which a forfeitee could attack the forfeiture

decision. Yet, the dissenters, perhaps in an attempt to avoid this potentially unjust result,

astoundingly then attempt to create a new (title 38?) procedural right that will survive forfeiture

under their construct.

Second, the dissenters cite section 511 as the basis for the dubious new procedure they create,

thus acknowledging that forfeiture matters are subject to a decision by the Secretary under 38 U.S.C.

§ 511(a) and thus apparently conceding that title 38 does indeed have some applicability to those

who have forfeited their status as benefits-eligible claimants, notwithstanding their thesis that the

"all . . . all" proscription of section 6103(a) refers to all laws under title 38. They fail to recognize,

however, that once there has been a final decision on such a matter, title 38 provides express, limited

paths for again obtaining an adjudication on that same matter. In the absence of clear and

21

unmistakable error (see 38 U.S.C. §§ 5109A, 7111 (allowing revision of decisions by the Secretary

or the Board on grounds of clear and unmistakable error)), sections 5108 and 7104 and 7105(c)

provide only one method--the submission of new and material evidence--for obtaining another

adjudication once a matter has been finally disallowed. See 38 U.S.C. §§ 5108 ("If new and material

evidence is presented or secured with respect to a claim which has been disallowed, the Secretary

shall reopen the claim and review the former disposition of the claim."), 7104(b) ("Except as

provided in section 5108 of this title, when a claim is disallowed by the Board, the claim may not

thereafter be reopened and allowed and a claim based upon the same factual basis may not be

considered."); 7105(c) ("If no notice of disagreement is filed in accordance with this chapter within

the prescribed period, the action or determination shall become final and the claim will not thereafter

be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with

this title."). As thoroughly discussed in the majority opinion, the Secretary has recognized this

procedural framework by promulgating 38 C.F.R. §§ 3.104(a), 3.105, and 3.905(d) (1999), and the

Court today finds that these provisions "constitute plausible and reasonable interpretations of the

law." Ante at __, slip op. at 16.

Third, there is no statutory or regulatory authority for applying a preponderance standard to

any determinations on matters subject to a decision by the Secretary. This standard finds no basis

in title 38 but rather is a prior creation of the dissenting judges. See Laruan v. West, 11 Vet.App. 80

(1998) (en banc); Sarmiento v. Brown, 7 Vet.App. 80 (1994); Aguilar v. Derwinski, 2 Vet.App. 21

(1991); cf. Laruan, 11 Vet.App. at 86 (Kramer and Steinberg, JJ., concurring in part and dissenting

in part); Sarmiento, 7 Vet.App. at 86 (Kramer, J., concurring); Rogers v. Derwinski, 2 Vet.App. 419,

422 (1992) (Steinberg, J., concurring); Aguilar, 2 Vet.App. at 23 (Kramer, J., concurring). By

forcefully asserting that the preponderance standard is applicable in a forfeiture situation, the

dissenters appear to recognize that the foundation upon which Laruan rests is seriously undermined

by the opinion issued here today. Indeed, they are correct; Laruan cannot possibly remain viable in

light of the instant opinion, because it would be inconceivable to apply a new and material evidence

analysis when adjudicating claims to reopen forfeiture decisions, but to require a higher,

preponderance burden for individuals who were simply unable (perhaps due to the loss of a DD

Form 214) to provide the proper evidence of service at the time of the initial adjudication of their

22

claims. For the reasons set forth in the joint dissent in Laruan, 11 Vet.App. at 86 (Kramer and

Steinberg, JJ., concurring in part and dissenting in part), we await with anticipation the formal

demise of Laruan--when the Court acknowledges that status is merely one element of a claim, as the

Federal Circuit has already prescribed (Maggitt v. West, __ F.3d __, __, No. 99-7023, slip op. at 6

(Fed. Cir. Feb. 3, 2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998); Grantham v. Brown,

114 F.3d 1156, 1160 n.1 (Fed. Cir. 1997) (Archer, C.J., concurring)) and, indeed, as this Court has

stated in Fenderson v. West, 12 Vet.App. 119, 125 (1999).

Fourth, our dissenting colleagues further confound their position by indicating that it is the

liberal procedural rights of title 38, available, in their view, only to "veterans" and to those "untainted

by fraud," that are lost upon forfeiture. However, because status as a veteran is not necessarily lost

by virtue of a section 6103(a) forfeiture decision (see, e.g., 38 U.S.C. § 6103(c) ("[f]orfeiture of

benefits by a veteran shall not prohibit payment of[, inter alia,] the burial allowance . . . in the event

of the veteran's death" (emphasis added))), a forfeitee also appears to continue to have status as a

veteran for certain purposes. Furthermore, after September 1, 1959, the forfeiture provisions of

section 6103(a) are not applicable to "any individual who was a resident of, or domiciled in, a State

at the time the act or acts occurred on account of which benefits would, but for this subsection, be

forfeited" (38 U.S.C. § 6103(d)(1)); and thus forfeiture under section 6103 generally would not be

imposed on dishonest veterans living within the United States. Consequently, although the

dissenters purport to create a system where the "indulgent" or "liberal" procedural rights of title 38

will be reserved for honest, deserving veterans, their construct apparently would prevent only certain

dishonest claimants residing outside the United States from relying on such procedures and, even

then, not for all purposes.

Fifth, although, as we indicated above, status as a veteran (or a surviving spouse) is not

necessarily lost as the result of a forfeiture decision under section 6103, we feel compelled to

respond to the dissenters' assertions that status determinations generally involve "a simple ministerial

act," such as a cursory scan of the claimant's DD Form 214 or marriage certificate. Even though it

is possible that status determinations, in certain instances, might be made by perusal of a single

document, status may often involve complicated determinations regarding such matters as character

of service, marital status, and dependent-child helplessness. For instance, a "veteran" is defined by

23

statute as "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). Pursuant to

38 C.F.R. § 3.12(a) (1999), "[a] discharge under honorable conditions is binding on [VA] as to

character of discharge." However, in order for a recipient of any other type of discharge to be

eligible for VA benefits, a determination must be made as to whether that discharge will be

considered to have been issued "under conditions other than dishonorable" (38 U.S.C. § 101(2))--a

determination which must be made (in the absence of statutory guidance as to the conditions

constituting an "other than dishonorable" discharge) under 38 C.F.R. § 3.12 (1999). See Camarena

v. Brown, 6 Vet.App. 565, 567-68 (1994) ("Congress clearly intended that the phrase 'conditions

other than dishonorable' was to include persons other than those receiving dishonorable discharges,"

and the Secretary, in a valid exercise of discretion, defined in 38 C.F.R. § 3.12 discharges considered

to be under dishonorable conditions).

Indicative of the morass into which one descends when attempting to apply this regulation

is 38 C.F.R. § 3.12(d)(4), which provides, inter alia, that a discharge because of "willful and

persistent misconduct" will be considered to have been issued under dishonorable conditions, unless

the discharge was because of a "minor offense" and "service was otherwise honest, faithful[,] and

meritorious." In this regard, we note that the majority in Laruan (which included the dissenters in

the instant case) was unable to apply this provision properly. In that case, the majority erroneously

concluded that the appellant had received a dishonorable discharge and that he thus did not have

status as a veteran (see Laruan, 11 Vet.App. at 82), when, in fact, the appellant had been "discharged

without honor" due to a period of absence without leave. See Laruan, 11 Vet.App. at 90 (Kramer

and Steinberg, JJ., concurring in part and dissenting in part). The majority there failed to recognize

that the type of discharge noted on the appellant's DD Form 214 was not dispositive as to the

character of his discharge for VA benefits purposes, and that a determination should have been made

under 38 C.F.R. § 3.12(d)(4) as to whether his discharge was based on "willful and persistent

misconduct" and would thus be considered to have been under dishonorable conditions. Id. This

murky statutory and regulatory framework regarding status as a veteran is further complicated by

provisions that create bars to benefits for individuals receiving discharges under certain specified

circumstances but that do not address the resulting implications of the characterization of the

24

discharge. See 38 U.S.C. § 5303(a), (b); 38 C.F.R. § 3.12(b), (c) (1999); see also Butler v. West,

12 Vet.App. 7, 8 (1998) (Kramer, J., concurring) (even though petitioner was barred under section

5303(a) from receipt of VA benefits, he had status as veteran because his discharge was under

honorable conditions).

Furthermore, considering the complicated statutory and regulatory provisions regarding the

definition of surviving spouse, it hardly seems accurate to characterize status determinations under

those provisions as "a simple exercise." See 38 U.S.C. § 101(3) ("'surviving spouse' means . . . a

person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and

who lived with the veteran continuously from the date of marriage to the date of the veteran's death

(except where there was a separation which was due to the misconduct of, or procured by, the

veteran without the fault of the spouse) and who has not remarried or (in cases not involving

remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another

person and held himself or herself out openly to the public to be the spouse of such other person");

38 C.F.R. § 3.50 (1999); 38 C.F.R. § 3.53 (1999) ("statement of the surviving spouse as to the reason

for the separation will be accepted in the absence of contradictory information"); see also Cacatian

v. West, 12 Vet.App. 373, 375-77 (1999) (holding that a person who was the legal spouse of a

veteran but was participating in a marital-type relationship with someone other than the veteran at

the time of the veteran's death was not eligible to claim surviving spouse status at the time of the

veteran's death and that, therefore, the statute providing restoration of prior surviving spouse

eligibility was not applicable); Owings v. Brown, 8 Vet.App. 17, 19-20 (1995) (discussing

modifications to statutes and regulations applicable to surviving spouse who remarries and later

reapplies for dependency and indemnity compensation); Vecina v. Brown, 6 Vet.App. 519, 522

(1994) (discussing cohabitation requirement of section 101(3) and noting that whether illicit

relationship by spouse defeats requirement of continuous cohabitation depends on duration,

frequency, and conditions of such relationship); Gregory v. Brown, 5 Vet.App. 108, 112 (1993)

(discussing "without the fault of" requirement of section 101(3) and finding that fault or absence of

fault is to be determined based on analysis of conduct at time of separation); see also 38 C.F.R.

§ 3.1(j) (1999) ("Marriage means a marriage valid under the law of the place where the parties

resided at the time of marriage, or the law of the place where the parties resided when the right to

25

benefits accrued."); 38 C.F.R. § 3.205(a)(6) (1999) ("In jurisdictions where marriages other than by

ceremony are recognized," proof of marriage is established by "the affidavits . . . of one or both of

the parties to the marriage . . . setting forth all of the facts and circumstances concerning the alleged

marriage, such as the agreement between the parties at the beginning of their cohabitation, the period

of cohabitation, places and dates of residence, and whether children were born as the result of the

relationship. This evidence should be supplemented by affidavits . . . from two or more persons who

know as the result of personal observation the reputed relationship which existed between the parties

to the alleged marriage including the periods of cohabitation, places of residences, whether the

parties held themselves out as married, and whether they were generally accepted as such in the

communities in which they lived.").

Does all of this sound like "a simple ministerial act"?

Finally, we note, in response to a statement by one of the dissenters ("In fairness to the many

who have served and qualify for title 38 benefits, those who have cheated that system should remain

outcasts until, and if, they show [sic] their forfeiture was [sic] in error through the usual adversarial

process and not the indulgent VA process reserved for claimants untainted by fraud."), that a new

and material evidence standard is not necessarily a light burden to meet; indeed, it is difficult to

perceive of any evidence that would "bear[ ] directly and substantially upon the specific matter"

(38 C.F.R. § 3.156(a) (1999)) other than evidence exculpatory of the claimant's misdeeds or evidence

showing VA fraud in the original decision.

As we stated above, we recognize the superficial allure, in an ideal world, of a bifurcated

system based on deserving and undeserving individuals such as the system that our dissenting

colleagues have sought to fabricate. However, there are compelling reasons counseling against such

a system. In the real world, with diverse factual situations and complicated statutory and regulatory

provisions, the construct conjured by the dissenters would create an unnecessary and legally

unfounded further complication, one that in all likelihood would make not one iota of difference in

any outcome.

FARLEY, Judge, with whom NEBEKER, Chief Judge, and IVERS, Judge, join, dissenting:

The issue presented in this appeal is governed by clearly defined principles of statutory construction.

Our decision must begin and end with the unambiguous language of 38 U.S.C. § 6103. The intent

26

of Congress is clearly set out in the statute and that must be the end of the matter because the Court

and VA must give full "effect to the unambiguously expressed intent of Congress." See Chevron

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). The majority has chosen

to ignore this commandment by the Supreme Court and therefore I must dissent.

I.

The expression of our societal gratitude to those who served and sacrificed in our common

defense is a tradition which predates even the founding of our nation. In 1636, the Plymouth Colony

in Massachusetts provided that a soldier who returned "maimed would thereafter be maintained

competently for the rest of his life at the expense of the public treasury." See Veterans Benefits and

Judicial Review: Historical Antecedents and the Development of the American System (Fed.

Research Div. of the Library of Congress, Washington, D.C., March 1992). When in 1865

President Abraham Lincoln committed the nation "to care for him who shall have borne the battle

and his widow and his orphan" in his Second Inaugural Address, he was both following old

precedent and creating new. After World War I, World War II, Korea, Vietnam, and more recent

conflicts, a grateful nation has provided its veterans with home loans and educational benefits,

medical care and pensions, disability and death compensation, as well as assistance to their widows

and dependents. The rights and benefits established by title 38, United States Code, may be available

to a veteran and his or her family members depending upon, inter alia, the time, length, and character

of the veteran's service, the severity of any resulting disability, and the specific relationships between

the veteran and his or her family members. Some of these substantive benefits, such as home loan

guarantees and education, require only proof of military service; others require determinations as to

the degree of disability and whether it was incurred or aggravated in service. Still others are

dependent upon the amount of current income or whether a death was service connected.

In addition to these substantive benefits, other sections of title 38 provide significant

procedural relaxations and red-tape-cutting devices which are available only to veterans and to those

entitled to benefits because of a relationship to a veteran. For example, once a veteran has

established a well-grounded claim, the Secretary of Veterans Affairs is obligated by statute to assist

the veteran in the development of the facts pertinent to his claim. 38 U.S.C. § 5107(a). Indeed, the

27

entire claims process, at least until an appeal is filed with this Court, is non-adversarial: the Secretary

and VA work for veterans. Pursuant to 38 U.S.C. § 5107(b), veterans enjoy the "benefit of the

doubt" with regard to factual issues material to their claims. This unique standard of proof is unlike

that available to any other civil plaintiff or claimant: a veteran prevails if the evidence is in

equipoise. See Gilbert v. Derwinski, 1 Vet.App. 49, 53-56 (1990). A veteran is thus relieved of the

burden of having to prove his or her claim by the traditional preponderance-of-the-evidence test used

routinely in civil and administrative matters. Id.; see, e.g., Jones ex rel. Jones v. Chater, 101 F.3d

509, 512 (7th Cir. 1996) (in Social Security benefits cases, "preponderance of the evidence is the

proper standard, as it is the default standard in civil and administrative proceedings"); Bender

v. Clark, 744 F.2d 1424, 1429 (10th Cir. 1984); Sea Island Broadcasting Corp. v. FCC, 627 F.2d

240, 243 (D.C. Cir. 1980). Further, a veteran or a veteran's survivor, as a matter of statutory right,

may have a finally denied claim reopened and reconsidered by the Secretary merely upon the

submission of "new and material evidence." 38 U.S.C. § 5108. And, as the United States Court of

Appeals for the Federal Circuit (Federal Circuit) recently made clear, it is easier for a veteran to

reopen a finally denied claim because "new and material evidence" is a less restrictive test, one

which focuses not upon the ultimate resolution of a claim but upon "the need for a complete and

accurate record." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The new and material

evidence test recognized in Hodge imposes a lower burden to reopen, is most favorable to the

veteran, and supports the general rule that any interpretative doubt must be resolved in favor of the

veteran. Id. at 1361 n. 1; see also Winters v. West, 12 Vet.App. 203, 214 (1999) ("Hodge stressed

that . . . new evidence that was not likely to convince the Board to alter its previous decision could

be material if that evidence provided 'a more complete picture of the circumstances surrounding the

origin of the veteran's injury or disability, even where it will not eventually convince the Board to

alter its rating decision.'"). There is simply no other situation where an unsuccessful plaintiff or

claimant can have his or her claim revisited under such a standard.

II.

Only veterans, or those whose entitlement is based upon a relationship to a veteran, are

entitled to the benefits of title 38. Virtually all of the provisions of title 38 use the word "veterans"

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and are stated in directive language. See, e.g., 38 U.S.C. § 1110 ("For disability resulting from

personal injury suffered or disease contracted in line of duty . . . the United States will pay to any

veteran . . . "); § 1121 ("The surviving spouse, child or children, and dependent parent or parent of

any veteran who died . . . in line of duty . . . shall be entitled to receive compensation . . ."); § 1151

("Where any veteran shall have suffered an injury, or an aggravation of an injury, as a result of

hospitalization, medical or surgical treatment, or the pursuit of vocational rehabilitation . . . [which]

results in additional disability to or the death of such veteran, disability or death compensation . . .

shall be awarded . . ."); § 1310 ("When any veteran dies . . . from a service-connected or

compensable disability, the Secretary shall pay dependency and indemnity compensation to such

veteran's surviving spouse, children, and parents.") (Emphasis added).

So stated, these affirmative Congressional mandates to the Secretary necessarily preclude

their negatives: the Secretary cannot refuse to pay a benefit to an eligible veteran. Indeed, Chief

Justice Marshall discussed -- and dismissed -- this very point in Marbury v. Madison, 5 U.S.

(1 Cranch) 137 (1803). After noting that Congress had directed the Secretary of War to place on the

pension rolls all persons named by him in a report to Congress in 1794, he observed:

If [the Secretary] should refuse to do so, would the wounded veteran be without

remedy? Is it to be contended, that where the law, in precise terms, directs the

performance of an act, in which an individual is interested, the law is incapable of

securing obedience to its mandate? . . . Is it to be contended that the heads of

departments are not amenable to the laws of their country? Whatever the practice on

particular occasions may be, the theory of this principle will certainly never be

maintained. No act of the legislature confers so extraordinary a privilege, nor can it

derive countenance from the doctrines of the common law.

Id. Just as the Secretary cannot refuse to provide benefits to entitled veterans, the Secretary cannot

award veterans' benefits to those who are not veterans or who do not qualify due to the absence of

a recognized relationship to a veteran. Such an act would be ultra vires. "In the American system,

government functionaries are entitled to exercise only such powers as are conferred on them,

expressly or impliedly, by positive law." NORMAN J. SINGER , SUTHERLAND ON STATUTORY

CONSTRUCTION § 65.01 (5th ed. 1992); see also Marbury, supra at 174-75 ("Affirmative words are

often, in their operation, negative of other objects than those affirmed . . . "); see generally, Brown

29

v. Gardner, 513 U.S. 115, 122 (1994) (courts have no obligation to defer to the Secretary's

regulations where there are inconsistencies between the regulations and statutes).

At the very beginning of title 38, the word "veteran" is defined as follows: "For the purposes

of this title . . . [t]he 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). Thus, one seeking title 38 benefits must establish two elements, active service

and acceptable character of discharge, and must do so by a preponderance of the evidence because,

by definition, the more relaxed benefit-of-the-doubt standard afforded solely to a veteran by

38 U.S.C. §5107(b) can only apply once one has established by the traditional standard of proof that

one is a veteran.

Thus, unless a claimant first carries the initial burden of establishing status

as a veteran or veteran status for the person upon whose military service the desired

benefits are predicated, the laws administered by the Secretary and the resources of

the VA are not applicable or available. Designation as a veteran bestows certain

procedural advantages and evidentiary benefits which are unavailable to nonveteran

claimants.

***

Thus, as the lower threshold burden of producing a well-grounded claim is available

only to veterans, it follows that establishing such veteran status must satisfy the

preponderance of the evidence standard common in civil and administrative

litigation. In enacting title 38, Congress could not have intended that persons without

requisite veteran status would benefit from the statutory presumptions and

enactments reserved for veterans. Indeed, and consistent with this nation's policy

reasons for venerating veterans, without predicate veteran status there is no

cognizable claim to be made before the Department or this Court under title 38.

Laruan v. West, 11 Vet. App. 80, 84 (1998) (emphasis added).

In the vast, vast, majority of instances, proof of eligibility requires only a simple ministerial

act: submission of a DD Form 214. A valid DD Form 214, which is the report of discharge issued

to each veteran upon separation from military service, constitutes proof of eligibility by a

preponderance of the evidence. Proving eligibility, "veteran" status, is so ministerial that it almost

escapes notice in the adjudication process. In those rare cases where a veteran's status cannot be

proven by a DD Form 214 submitted by the veteran or the service department (see 38 U.S.C.

30

§ 5106), an individual seeking veterans benefits still must prove eligibility, i.e., qualifying service

and character of discharge, by a preponderance of the evidence. See Laruan, supra.

With respect to dependents or those claiming benefits by virtue of their relationship with a

veteran, they too must establish eligibility by a preponderance of the evidence and for the same

reason: they cannot enjoy the benefits of title 38 unless and until they prove that they are qualified.

Qualification as a dependent requires two elements: (1) a qualifying relationship (e.g., spouse; child;

dependent parent; etc.) with (2) a veteran. Again, in most cases passing this two-part test by a

preponderance of the evidence is a simple exercise. All that is required is the veteran's DD Form 214

and evidence of the relationship (e.g., a marriage certificate, birth certificate, adoption papers, etc.).

Until eligibility is established, however, neither the substantive, the procedural, nor the evidentiary

benefits available to veterans, including the relaxation of the standard of proof and the ability to

reopen a claim upon the submission of new and material evidence, are available. See Aguilar

v. Derwinski, 2 Vet.App. 21 (1991); Laruan, supra.

III.

This case presents the rare instance where an individual whose eligibility for title 38 benefits

had already been established forfeited that eligibility through acts of her own. The appellant was

awarded dependency and indemnity compensation (DIC) in 1956 as the unremarried widow of

Zosimo Trilles, a veteran. From the time she was first interviewed concerning her claim, she was

advised of the forfeiture of rights provisions for fraud in connection with VA claims. R. at 71, 160.

She has denied continually that she had been married to any man after the death of the veteran. R. at

39, 46, 71, 160.

Over the past forty years, however, different facts have evolved through the gathering of

evidence and the admissions of the appellant herself. After the veteran's death, she not only held

herself out as the wife of Santiago Penaflorida from 1943 to 1945, she also was married to Augusto

Mancilla Malapitan in 1949. The appellant's statements denying these relationships served as the

predicate for the April 1988 forfeiture by the Compensation and Pension Service (R. at 297-98, 300-

01) which was upheld by the 1990 BVA decision. R. at 325. The BVA found that the appellant, a

widow, had concealed her entry into a marital relationship with another man after the death of her

31

husband who had died in a Japanese prisoner of war camp. "[A]ppellant, beyond a reasonable doubt,

knowingly and deliberately, made and submitted to . . . VA false statements concerning her marital

relationship . . . in obtaining VA benefits to which she had no legal entitlement." R. at 324-25.

Based upon this finding of fraud and pursuant to section § 6103, the Board held that the appellant

had "forfeited all rights, claims and benefits under all laws administered by . . . VA (except laws

pertaining to insurance benefits)." Id. The Board also explicitly found no reason to revoke the

forfeiture. Id. When the appellant subsequently sought to have the forfeiture revoked, the BVA, in

the November 14, 1996, decision presently before the Court, employed a 38 U.S.C. § 5108 "new and

material evidence" analysis and, finding that the appellant had failed to submit such new and material

evidence, refused to "reopen" her claim for revocation of the forfeiture.

The Board acted properly in refusing to revoke the forfeiture but it erred in applying the

section 5108 "new and material evidence" analysis to a forfeiture by the Secretary pursuant to section

38 U.S.C. § 6103(a). Section 6103(a) provides as follows:

Whoever knowingly makes or causes to be made or conspires, combines,

aids, or assists in, agrees to, arranges for, or in any way procures the making or

presentation of a false or fraudulent affidavit, declaration, certificate, statement,

voucher, or paper, concerning any claim for benefits under any of the laws

administered by the Secretary (except laws pertaining to insurance benefits) shall

forfeit all rights, claims, and benefits under all laws administered by the Secretary

(except laws pertaining to insurance benefits).

"As in any case of statutory construction, our analysis begins with 'the language of the statute.'"

Hughes Aircraft v. Jacobson, 525 U.S. 432, 119 S. Ct. 755, 760 (1999); see also Glover v. West,

185 F.3d 1328, 1332 (Fed. Cir. 1999) ("In construing a statute or regulation, we commence by

inspecting its language to ascertain its plain meaning.") Because the language is clear, because the

language is unambiguous, our analysis must end there as well. Id.; see also Connecticut Nat. Bank

v. Germain, 503 U.S. 249, 254, 112 S. Ct. 1146 (1992). There is no room for interpretation. See

Selley v. Brown, 6 Vet.App. 196, 198 (1994) (where statute is clear, no interpretation is required).

This Court and VA "must give effect to the unambiguously expressed intent of Congress." Chevron,

467 U.S. at 842-43; see also Glover, 185 F.3d at 1332 ( court recognized that it must give full effect

to all words chosen by Congress and contained in the statute); but cf. Steadman v. SEC, 450 U.S. 91,

32

101 (1981) (where language of statute was "somewhat opaque," Court looked to legislative history

to reveal Congress' intent).

In section 6103(a), Congress spoke directly on the precise question of what a forfeiture

means: "all rights, claims, and benefits under all laws administered by the Secretary" are forfeited.

(Emphasis added.) By its terms, the statute permits one and only one exception to the emphatic

"all . . . all" proscription: a parenthetical set concretely within the statute itself excepts only "laws

pertaining to insurance benefits." 38 U.S.C. § 6103(a). That single exception has no bearing upon

the matter before us but it does manifest a deliberate choice by Congress to permit only one

exception.

Because the statute contains no other exception or qualification, the phrase "all rights, claims,

and benefits under all laws administered by the Secretary" necessarily includes "all" title 38

procedural, evidentiary, and substantive rights and benefits afforded to veterans and those eligible

family members. Therefore, when an eligible veteran, or an individual eligible by virtue of a

relationship with a veteran, forfeits that title 38 eligibility, he or she in fact and in law loses much.

Forfeiture results in the loss of the right to have a finally denied claim reopened upon a lower

quantum of "new and material evidence" under § 5108); indeed, since § 6103(a) mandates the

forfeiture of "all claims," there is no longer an extant claim which could be reopened if, contrary to

the clear language of § 6103(a), the benefits of § 5108 remained available after forfeiture. A

forfeiture also means the loss of the right to assistance under the Secretary's statutory duty to assist

under 38 U.S.C. § 5107(a). See Laruan, supra. In addition, forfeiture of "all . . . benefits under all

laws administered by the Secretary" means the loss of the enjoyment of the § 5107(b) benefit of the

doubt or equipoise standard or proof. Thus, having forfeited the right to the benefit of the doubt

standard, one seeking to have a forfeiture revoked would have to shoulder the burden of refuting the

factual predicate for the Secretary's original forfeiture decision by a preponderance of the evidence.

In Villaruz v. Brown, 7 Vet.App. 561 (1995), where a veteran had forfeited "all rights, claims

and benefits" pursuant to 38 U.S.C. § 6103 and sought revocation of the forfeiture pursuant to

38 U.S.C. § 6104, the Court followed without comment the "new and material evidence" reopened

claim route of 38 U.S.C. § 5108. However, in Tulingan v. Brown, 9 Vet.App. 484, 487 (1996), the

Court held that "where a veteran has lost his status as a benefits-eligible claimant, he must establish

33

it anew by a preponderance of the evidence." Interestingly, and incorrectly, the authority for this

statement was given as Villaruz. Id. I was a member of the panel which issued Villaruz as well as

the Tulingan panel and thus must plead guilty to the charge of aiding and abetting imprecision.

Upon the reflection generated by this appeal, I have concluded that the Chief Judge was

correct and more precise in Tulingan: the reopening provisions of 38 U.S.C. § 5108 have no place

in the consideration of a request to revoke a forfeiture under § 6103. To the extent that Villaruz

holds otherwise, it must be reversed (this is the only point in the majority opinion with which I can

agree although our reasons differ substantially).

IV.

Properly framed, the issue presented to the Board was not whether the appellant's claim

should be reopened under 38 U.S.C. § 5108 but whether her forfeiture should be revoked. The

standard which the Board should have applied was not whether the appellant had submitted new and

material evidence to warrant reopening under 38 U.S.C. § 5108 but whether the appellant had

submitted evidence of sufficient weight to negate the factual basis for the forfeiture decision and thus

gain revocation of that forfeiture.

In seeking revocation of her forfeiture, the appellant has argued that (1) she was forced to

marry Mr. Malapitan (R. at 245, 280, 324) and (2) she was never married to Mr. Malapitan on

February 26, 1949 and any documents certifying that such a marriage took place were fabricated.

R. at 310, 327, 342. 310. She has submitted additional evidence since the 1990 forfeiture in support

of her contentions. In its November 14, 1996, decision, the Board determined that this evidence

included: (1) the appellant's own written contentions which were duplicative of her assertions before

the Board in 1990; (2) a September 1987 statement indicating that a staff member at the office of the

civil registry searched the files of the Irosin, Sorsogon civil registry and was unable to find a record

of the death of Mr. Malapitan; and (3) a March 1989 statement from the office of the civil registry

indicating that the Chief of the Certification Section was unable to find a record showing the

marriage of the appellant and Mr. Malapitan.

Although the Board erred in applying the claim-reopening provisions of § 5108 to this

§ 6103(a) forfeiture, that error was not prejudicial to the appellant (see 38 U.S.C. § 7261(b)) because

34

the Board essentially determined that the appellant had failed to contradict the factual predicate upon

which her original forfeiture was based by a preponderance of the evidence. See Metropolitan

Stevedore Co. v. Rambo, 521 U.S. 121, 117 S. Ct. 1953, 1963 n. 9 (1997) ("[T]he preponderance

standard goes to how convincing the evidence in favor of a fact must be in comparison with the

evidence against it before that fact may be found."). Specifically, the Board stated:

Additional evidence submitted since the May 1990 Board decision either duplicates

evidence previously considered or is not probative of the claim . . . . Since the May

1990 Board decision, the appellant has submitted evidence consisting mostly of her

own written contentions [which] duplicate her assertions which were considered by

the Board in 1990 . . . . In addition to her written contentions, the appellant has

submitted a statement, not previously of record, dated in September 1987,

which . . . indicates that a staff member of the office of the civil registry searched the

files of the Irosin, Sorsog[o]n Civil Registry and was unable to find a record of the

death of the appellant's second husband. She also submitted a statement, not

previously of record, dated in March 1989, which . . . indicates that the Chief of the

Certification Section was unable to find a record showing the marriage of the

appellant and her second husband. As these statements were not of record when the

Board made its 1990 decision, they are new evidence. However, they cannot be

considered material since they do not show that the marriage and the death did not

take place, merely that the records could not be located at a later date. As the

claims file before the Board in 1990, and today, contains both the marriage certificate

and the death certificate in issue, the subsequent loss of such certificates from official

records depositories has no probative value on the matter of whether the events

reported in the certificates actually occurred. The newly-submitted statements do not

tend to show that the appellant had not previously attempted to conceal her second

marriage from the VA; they merely show deficiencies in record-keeping. Thus they

are not material for the purposes of reopening the previously-denied claim.

R. at 5-6. (Emphasis added.)

The evidence of record, including the evidence submitted since the 1990 BVA decision, fails

to prove by a preponderance that the basis of the forfeiture decision was incorrect. The appellant has

failed to meet her burden of submitting preponderating evidence to warrant revocation of the

forfeiture. Therefore, I would affirm the BVA's § 7104(d) order denying benefits.

V.

The majority opinion goes astray at the very beginning. After paying lip service to the

controlling rule that "where a statute has plain meaning, a Court shall give effect to that meaning."

35

(slip op. at 10; citations omitted), it goes on to hold that "[t]he language of section 6103 plainly states

that a person who commits fraud in connection with his or her claim or aware of benefits, loses all

rights, claims, and benefits." Id. That should be the end of the issue and for me it is; sadly, for the

majority, it is not the end but the beginning of an aimless and unwarranted venture through

regulations, legislative history, and result-oriented conclusions proffered without reason or rationale.

Using only the word "however" as justification, the majority runs the "plain meaning" red light and

proceeds to proclaim that there are two "omissions" in the statute. It then uses these "omissions" as

licenses to find both ambiguity and absurdity. The first "omission," in the majority's view, is that

§ 6103(a) is "completely silent on the forfeiture process." Id.; slip op. at 11. Why this "omission"

is of moment we are not told, but it need only be noted that the statute is completely silent on any

number of irrelevancies and for the simple reason that they are just that: irrelevant. The Secretary's

decision-making processes are well set out elsewhere and need not be repeated each and every time

Congress enacts new legislation affecting benefits. The second "omission" relied upon by the

majority is that the statute is "silent on . . . whether Congress intended that a section 6103 bar would

forfeit procedural rights." Id. With regard to this "omission," the majority is factually and simply

wrong because the statute is not silent in that regard. Congress used the word "all," as in "shall

forfeit all rights, claims, and benefits under all laws administered by the Secretary." One can only

wonder what part of the word "all" the majority does not comprehend. In turning a blind eye to the

patent clarity of the statute and using concocted silence to find ambiguity and absurdity, the majority

callously disregards the Supreme Court's clear guidance in Gardner that "congressional silence 'lacks

persuasive significance.'" 513 U.S. at 121.

In its rash rush to overturn this Court's decisions in Villeza v. Brown, 9 Vet.App. 353 (1996),

and Tulingan, the majority holds that those decisions did not give proper deference to regulations

promulgated by the Secretary. Yet, as a simple reading will confirm, in none--not one--of the

regulations cited by the majority has the Secretary promulgated rules allowing for the reopening of

final forfeitures. See 38 C.F.R. §§ 3.104, 3.105, 3.905(d), 20.1103, 20.1104. Thus, the majority

requires post hoc deference to regulations which do not even deal with the issue before the Court in

those cases. Of even more import, in its thrashing about for some at least colorable authority for its

conclusion that the procedural benefits of 38 U.S.C. § 5108 are not forfeited under § 6103, the

36

majority trumpets the historical fact that these irrelevant regulations have remained unchanged since

the 1960's when they were first promulgated. So what? When that argument was made in Gardner,

the Supreme Court summarily rejected it: "A regulation's age is no antidote to clear inconsistency

with a statute, and the fact, again, that [the VA regulation] flies against the plain language of the

statutory text exempts courts from any obligation to defer to it." 513 U.S. at 122. In sum, the

majority's regulatory analysis suffers from the same defects as its statutory analysis in that it is

simply irrelevant and ignores settled Supreme Court precedent and canons of statutory construction.

Finally, and contrary to the suggestion of the majority, there indeed are procedures available

for "revisiting" an initial forfeiture decision. The forfeitee can seek appellate review by the Board

pursuant to 38 U.S.C. § 7104(a) and then, if he or she chooses, by this Court by filing a Notice of

Appeal. See 38 U.S.C. § 7252. Moreover, although the majority again suggests otherwise, even

without the benefit of the liberal reopening provisions of 38 U.S.C. § 5108, a forfeitee is not without

remedy. He or she can seek to have lost title 38 benefits, rights, and claims restored by having the

forfeiture revoked but, because of the loss of status as a benefits-eligible claimant by virtue of the

forfeiture, status as a benefits-eligible claimant would have to be established by a preponderance of

the evidence. See Laruan, supra. Through the RO, the Secretary would still be authorized and

required to adjudicate the threshold issue of status to first ensure that the Secretary has the authority

to adjudicate the merits. 38 U.S.C. § 511(a) ("The Secretary shall decide all questions of law and

fact necessary to a decision by the Secretary under a law that affects the provisions of benefits by the

Secretary to veterans or the dependents or survivors of veterans."); cf. Barnett v. Brown, 83 F.3d

1380, 1383 (Fed. Cir. 1996) ("[I]t is well-established judicial doctrine that any statutory tribunal

must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential

jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party at any stage

in the proceedings, and, once apparent, must be adjudicated."); Phillips v. Brown, 10 Vet.App. 25,

30 (1997) ("[I]t is . . . well established that a court has jurisdiction to determine whether it has

jurisdiction over a particular matter.") (citing Bell v. Hood, 327 U.S. 678 (1946)). If the forfeitee

fails to meet the burden of submitting preponderating evidence to show that the factual basis for the

forfeiture decision was wrong, the RO will decide not to revoke the forfeiture; that decision may be

appealed to the BVA (38 U.S.C. § 7104(a)) and then to this Court. 38 U.S.C. § 7252. Of course,

37

if there is no evidence submitted, then administrative res judicata would apply. See Astoria Federal

Savings & Loan Ass'n v. Solimino 501, U.S. 104, 107 (1991) (citing United States v. Utah Constr.

& Mining Co., 384 U.S. 394, 422 (1966), the Court stated, "[W]hen an administrative agency is

acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties

have had an opportunity to litigate, the Courts have not hesitated to apply res judicata to enforce

repose."); Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998) (basic principles of finality and res

judicata apply to agency decisions denying a veteran's claim for disability benefits). On the other

hand, if the RO decides that status was established (or re-established) by a preponderance of the

evidence, then, and only then, can the RO look to the merits and determine whether benefits should

be restored or awarded.

In its opinion, the majority concedes that the language of § 6103 is "plainly" stated, but it

characterizes the result compelled by that language as "absurd" when it is not. The majority's

tortured effort to escape that mandate rests on the incorrect predicate of the absurdity they conjure.

For reasons neither explained nor explainable, the majority has chosen to ignore well-settled legal

principles in order to give away rights and benefits to which only veterans are entitled, including the

right to reopen a finally-denied claim under 38 U.S.C. § 5108, to one who has forfeited her

entitlement to such veterans' rights and benefits. I dissent.

NEBEKER: Chief Judge, dissenting: I join Judge Farley's well-tempered and clear dissent. The

majority remands to "the Secretary and the Board" (but for our purposes they are, of course, one)

". . . to address in the first instance what evidence is required for Mrs. Trilles to reopen the VA-

benefits-eligibility forfeiture . . . ." Ante at ___, slip op. at 19. Obviously under the strained

construct by the majority that evidence must be new and material. Indeed that is what "We [the

majority] hold . . . ." Ante at ___, slip op. at 16-17. I ask what else can it be but evidence tending

to negate the established fraud. The sad aspect of the Court's holding is that one who fraudulently

got benefits is, like honest veterans, treated with the soft gloves of VA process. Now Mrs. Trilles

does not have to present anything more than what the indulgent Hodge standard requires to get

"review [of] the former disposition of the claims." 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356

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(Fed. Cir. 1998). Whether that is "readjudication" as the majority mandates is left imprecisely to the

Board.

I add the following in the hope that the majority's holding can be ameliorated by considering

what it has done to the VA process reserved for those presumed to be honest. As Judge Farley states,

the majority relies on VA regulations and process to apply a reopening standard of new and material

evidence to this case. However, the clarity of the law as stated in his dissent ought to persuade the

Secretary to change that way of treating forfeiture revocation efforts. This can be done even under

the majority opinion. In fairness to the many who have served and qualify for title 38 benefits, those

who have cheated that system should remain outcasts until, and if, they show their forfeiture was in

error through the usual adversarial process and not the indulgent VA process reserved for claimants

untainted by fraud. Indeed, Judge Kramer's separate opinion embraces the wisdom of a policy of

non-indulgent process for those malefactors. One is left to wonder whether, under the majority

holding, a person found to have committed treason (38 U.S.C. § 6104) or to have been indicted or

convicted for certain crimes involving national security (38 U.S.C. § 6105) may likewise use the

claimant-friendly VA process to attack the forfeiture resulting from such conduct.

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APPENDIX

TITLE 38, CODE OF FEDERAL REGULATIONS

§ 3.900 General.

(a) Forfeiture of benefits based on one period of service does not affect

entitlement to benefits based on a period of service beginning after the offense

causing the prior forfeiture.

(b) (1) Except as provided in paragraph (b)(2) of this section, any offense

committed prior to January 1, 1959, may cause a forfeiture and any forfeiture in

effect prior to January 1, 1959, will continue to be a bar on and after January 1, 1959.

(2) Effective September 2, 1959, forfeiture of benefits may not be declared

except under the circumstances set forth in § 3.901(d), § 3.902(d), or § 3.903.

Forfeitures declared before September 2, 1959, will continue to be a bar on and after

that date.

(c) Pension or compensation payments are not subject to forfeiture because

of violation of hospital rules.

(d) When the person primarily entitled has forfeited his or her rights by

reason of fraud or a treasonable act determination as to the rights of any dependents

of record to benefits under § 3.901(c) or § 3.902(c) may be made upon receipt of an

application.

§ 3.901 Fraud.

(a) Definition. An act committed when a person knowingly makes or causes

to be made or conspires, combines, aids, or assists in, agrees to, arranges for, or in

any way procures the making or presentation of a false or fraudulent affidavit,

declaration, certificate, statement, voucher, or paper, concerning any claim for

benefits under any of the laws administered by the Department of Veterans Affairs

(except laws relating to insurance benefits).

(b) Effect on claim. For the purposes of paragraph (d) of this section, any

person who commits fraud forfeits all rights to benefits under all laws administered

by the Department of Veterans Affairs other than laws relating to insurance benefits.

(c) Forfeiture before September 2, 1959. Where forfeiture for fraud was

declared before September 2, 1959, in the case of a veteran entitled to disability

compensation, the compensation payable except for the forfeiture may be paid to the

veterans' spouse, children and parents provided the decision to apportion was

authorized prior to September 2, 1959. The total amount payable will be the lesser

of these amounts:

(1) Service-connected death benefit payable.

(2) Amount of compensation payable but for the forfeiture.

No benefits are payable to any person who participated in the fraud causing the

forfeiture.

(d) Forfeiture after September 1, 1959. After September 1, 1959, forfeiture

by reason of fraud may be declared only

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(1) Where the person was not residing or domiciled in a State as defined in

§ 3.1(i) at the time of commission of the fraudulent act; or

(2) Where the person ceased to be a resident of or domiciled in a State as

defined in § 3.1(i) before expiration of the period during which criminal prosecution

could be instituted; or

(3) The fraudulent act was committed in the Philippine Islands.

Where the veteran's rights have been forfeited, no part of his or her benefit may be

paid to his or her dependents.

(e) Remission of forfeitures imposed prior to September 2, 1959. Where it

is determined that a forfeiture for fraud which was imposed prior to September 2,

1959, would not be imposed under the law and regulation in effect on and after

September 2, 1959, the forfeiture shall be remitted effective June 30, 1972. Benefits

to which a person becomes eligible by virtue of the remission, upon application

therefor, shall be awarded effective as provided by § 3.114

§ 3.902 Treasonable acts.

....

§ 3.903 Subversive activities.

....

§ 3.904 Effect of forfeiture after veteran's death.

(a) Fraud. Whenever a veteran has forfeited his or her right by reason of

fraud, his or her surviving dependents upon proper application may be paid pension,

compensation, or dependency and indemnity compensation, if otherwise eligible. No

benefits are payable to any person who participated in the fraud causing the

forfeiture.

(b) Treasonable acts. . . .

(c) Subversive activities. . . .

§ 3.905 Declaration of forfeiture or remission of forfeiture.

(a) Jurisdiction. At the regional office level, except in VA Regional Office,

Manila, Philippines, the Regional Counsel is authorized to determine whether the

evidence warrants formal consideration as to forfeiture. In the Manila Regional

Office the Adjudication Officer is authorized to make this determination.

Submissions may also be made by the director of a service, the Chairman, Board of

Veterans Appeals, and the General Counsel. Jurisdiction to determine whether the

claimant or payee has forfeited the right to gratuitous benefits or to remit a prior

forfeiture is vested in the Director, Compensation and Pension Service, and personnel

to whom authority has been delegated under the provisions of § 3.100(c).

(b) Fraud or treasonable acts. Forfeiture of benefits under § 3.901 or

§ 3.902 will not be declared until the person has been notified by the Regional

Counsel or, in VA Regional Office, Manila, Philippines, the Adjudication Officer,

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of the right to present a defense. Such notice shall consist of a written statement sent

to the person's latest address of record setting forth the following:

(1) The specific charges against the person;

(2) A detailed statement of the evidence supporting the charges, subject to

regulatory limitations on disclosure of information;

(3) Citation and discussion of the applicable statute;

(4) The right to submit a statement or evidence within 60 days, either to rebut

the charges or to explain the person's position;

(5) The right to a hearing within 60 days, with representation by counsel of

the person's own choosing, that fees for the representation are limited in accordance

with 38 U.S.C. § 5904(c) and that no expenses incurred by a claimant, counsel or

witness will be paid by VA.

(c) Subversive activities. Automatic forfeiture of benefits under § 3.903 will

be effectuated by an official authorized to declare a forfeiture as provided in

paragraph (a) of this section.

(d) Finality of decisions. A decision of forfeiture is subject to the provisions

of § 3.104(a) and § 20.1103 and § 20.1104 of this chapter. The officials authorized

to file administrative appeals and the time limit for filing such appeals are set forth

in § 19.51 of this chapter.

(e) Remission of forfeiture. In event of remission of forfeiture under

§ 3.901(e), any amounts paid as an apportionment(s) during periods of the previously

forfeited beneficiary's reentitlement will be offset.

38 C.F.R. §§ 3.900 through 3.905 (1998). See 27 Fed. Reg. 8590-91 (1962); 28 Fed. Reg. 2234

(1963).

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