Laruan v. West

11 Vet. App. 80, 1998 U.S. Vet. App. LEXIS 101, 1998 WL 39430

• Court: United States Court of Appeals for Veterans Claims
• Decided: February 3, 1998
• Docket: No. 96-179
• Status: Published

Opinions

NEBEKER, Chief Judge, filed the opinion of the Court. KRAMER and STEINBERG, Judges, filed an opinion concurring in part and dissenting in part.

NEBEKER, Chief Judge:

The pro se appellant, Anchong K. Laruan, appeals a February 9, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) which concluded that new and material evidence had not been submitted to reopen his claim of entitlement to veterans benefits. Upon consideration of the briefs of the parties and the record on appeal, the Court holds that the appellant has failed to establish the requisite threshold status as a veteran by a preponderance of the evidence. Accordingly, the “order” portion of the Board’s decision (see 38 U.S.C. § 7104(d)(2)) is affirmed, though the reasons given for the denial of relief by the Board were incorrect.

I. FACTS

Mr. Laruan served in the Philippine Army from March 1945 to June 1946. Record (R.) at 85. His military record reveals that from March 1 to June 21, 1946, Mr. Laruan was absent without leave (AWOL). R. at 74. He was thereafter discharged under dishonorable conditions. See R. at 74, 77, 81. In 1951, he sought service connection for a gunshot wound and for injuries resulting from a vehicle accident in 1946. R. at 46-48. His application alleged that his separation from the Army in March 1946 was honorable. R. at 46. During development of his claim, the regional office (RO) discovered the character of Mr. Laruan’s discharge. In an administrative decision dated January 17, 1952, the RO found “that the veteran’s discharge is under dishonorable condition[s] under the [applicable] provisions ... since his unauthorized absence is wilful and persistent misconduct and, further, the unauthorized absence is tantamount to desertion.” R. at 98. The RO informed the appellant that he was “not entitled to any benefit administered by [VA]” by virtue of the dishonorable discharge. R. at 100.

Thereafter, Mr. Laruan periodically asserted that he was either not informed of the character of his discharge, or that he in fact had received an honorable discharge. See R. at 109, 114, 119, 123, 127. VA repeatedly responded by informing the appellant that his discharge was nonqualifying for veterans benefits, and that his recourse was with the Department of the Army. See R. at 112,117, 121, 125, 129. In 1992, he submitted affidavits from friends to the effect that in 1945, he suffered an unspecified mental disorder and consequently, his unauthorized absence was a psychotic reaction. R. at 135. In another affidavit, Dr. Ponciano Lloren, who stated that he was assigned as a physician with the appellant’s company, recalled that the examiner’s diagnosis of Mr. Laruan in February 1946 was post-traumatic stress disorder, psychotic reaction, but that the “patient’s illness improved” by June 1946. R. at 160. Also submitted was a purported “Affidavit from Philippine Army Personnel” dated 1946. R. at 165. The “Affidavit” asserted that the appellant incurred insanity, was advised to seek treatment, and that he tried to return to his unit after his recovery but that the unit had been demobilized. Id. Also proffered was a photocopy of an October 1983 certification from the Philippine Ministry of National Defense showing that he was discharged on March 8,1946. R. at 16-17.

In the February 1996 decision here on appeal, the Board concluded that new and material evidence had not been submitted to reopen his claim of eligibility for veteran’s benefits. R. at 5-13. The Board found that the submitted documents were inherently untrue when viewed with all evidence of record, and further that his claims of mental illness resulting from a head injury were incredible, given that the earlier medical records and affidavits make no mention of such a disorder. Id. The Board denied reopening the claim.

Before this Court, Mr. Laruan requests that the Board’s decision be vacated, that his dishonorable discharge be “dissolved” and “vacated,” and that his claim be reopened. Appellant’s Brief at 1-5. The Secretary urges the Court to vacate the Board’s decision and dismiss the appeal since Mr. Laruan has failed to establish basic eligibility for VA benefits by a preponderance of the evidence.

II. ANALYSIS

A. Character of Discharge

If an applicant for VA benefits does not submit evidence of his military service, or the evidence submitted is insufficient, VA must request verification of service from the service department. 38 C.F.R. § 3.203(c)(1996); Sarmiento v. Brown, 7 Vet.App. 80 (1994). Although “service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces,” Duro v. Derwinski, 2 Vet. App. 530, 532 (1992), when a claimant submits evidence establishing that the service department’s certification was based upon erroneous information, a second verification may be required. Sarmiento, 7 Vet.App. at 85 (holding that 38 C.F.R. § 3.203(c) obligates VA to request verification of service where appellant submitted evidence that pri- or negative certification was based on a misspelling of his name). The record reflects that the service department, on more than one occasion, has informed both VA and the veteran that his discharge was dishonorable, and as such, nonqualifying for VA benefits. VA, and indeed this Court, are without authority to abrogate the statutory requirement of qualifying service. Duro, supra.

Accordingly, the Court holds that to the extent that Mr. Laruan disagrees with the assigned discharge classification of his military service, he must raise that concern with the Department of the Army, not VA. See 10 U.S.C. § 1552(a)(1) (Secretary of a military department may correct any of his department’s military records “to correct an error or remove an injustice”); see also Lauginiger v. Brown, 4 Vet.App. 214, 216 (1993) (veteran must look to service department, not VA, in dispute over whether service records of radiation exposure are complete).

B. Remedy

The remaining issue, and the one for which the en banc consideration was appropriate, is the disposition of the BVA decision here on appeal. The Secretary urges that under Sarmiento, supra, the Board decision must be vacated, and the appeal dismissed. Under this theory, because the appellant had never achieved threshold status as a benefits-eligible veteran, there was never any title 38 claim to adjudicate, and “any adjudications regarding the underlying merits of the claim are a nullity.” Secretary’s Brief at 8. However, our en banc opinion in Edenfield v. Brown, 8 Vet.App. 384, 390 (1995), arguably suggests that, unless to do so would prejudice the appellant, the Board’s “erroneous” disallowance of the claim should be affirmed. Accordingly, the issue presented for review is whether the analysis and remedy set forth in Sarmiento has been overruled by Eden-field.

1. Edenfield and Sarmiento

In Sarmiento, the Court vacated a BVA decision which had found that the appellant had not submitted new and material evidence sufficient to reopen his claim for entitlement to VA benefits. Sarmiento, 7 Vet.App. at 86. There, the Department of the Army could not verify the appellant’s service with the Philippine Commonwealth Army, the United States Armed Forces in the Far East, or recognized guerrilla forces. Mr. Sarmiento argued that the Secretary had breached his duty to assist as found in section 5107(a), title 38, United States Code. In that case, the majority opined that “the claimant,” as referred to in section 5107(a), “is one whose eligibility has been established and who has submitted a well-grounded claim.” Id. The Court held that the Board’s “reopening” analysis was inapplicable, reasoning thus:

Because appellant “never attainted] the status of claimant,” [Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991) ] he did not submit any claim, well grounded or otherwise, and therefore there was no finally denied claim which could have been reopened under 38 U.S.C. § 5108.... The Board’s refusal to reopen for lack of new and material evidence cannot be affirmed because there simply was no finally denied claim which could be reopened under 38 U.S.C. § 5108.

Sarmiento, 7 Vet.App. at 83-84.

In Edenfield, the Court addressed the then-extant conflict over the “appropriate disposition by this Court when the Board erroneously concludes that a claim is well grounded and then proceeds to consider the merits and disallows the claim.” Edenfield, 8 Vet.App. at 388. Edenfield does not address the present issue regarding preliminary status, or distinguish between claimants who are bona fide veterans or their dependants and survivors, and claimants not entitled to such a designation. In the Edenfield analysis, the Court examined the issue of appellants who filed claims that were not well grounded, and concluded that “[a]s a matter of law, a claim that is not well grounded is nevertheless a claim.” Id. at 389. There, the claimant’s status as a veteran was not at issue. The Court held that the appropriate remedy was to “affirm rather than vacate a BVA decision disallowing a claim on the merits where the Court finds the claim to be not well grounded.” Id.

Of further interest in the present ease, the Court notes that in arriving at its holding, the Edenfield opinion references Sarmiento in a “but see ” citation, implying that the cited authority clearly supports a proposition contrary to the main proposition. Id. Thus it appears that Edenfield did not overrule the holding in Sarmiento, but rather emphasized the difference between a veteran who attempts to submit a well-grounded claim, and a person who attempts to establish eligibility status to claim veterans benefits. See also Tulingan v. Brown, 9 Vet.App. 484 (1996); Aguilar, supra.

2. Proving Status by a Preponderance of the Evidence

The history of the applicability of rulemak-ing provisions found in the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., to the VA is addressed in the Court’s decision in Fugere v. Derwinski, 1 Vet.App. 103, 107-08 (1990). The Court has not addressed the issue of the applicability of the APA to the VA adjudication process. See Thurber v. Brown, 5 Vet.App. 119, 125 (1993) (discussing 5 U.S.C. §§ 554, 556, and requiring BVA to notify claimant of evidence to be used and of reliance proposed to be placed on it, and giving claimant opportunity to respond to such notification); see also 5 U.S.C. §§ 554, 556(d), (e); but see United States Lines v. Federal Maritime Comm’n, 584 F.2d 519, 536 (D.C.Cir.1978) (adjudication provisions “do not apply unless Congress has clearly indicated that the ‘hearing’ required by statute must be a trial-type hearing on the record”). Nevertheless, the Court believes that 5 U.S.C. § 556 is worthy of mention:

(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof.... A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts....

See also H.R.Rep. No. 1980, 79th Cong., 2d Sess., 37 (1946) (“Where there is evidence pro and con, the agency must weigh it and decide in accordance with the preponderance.”). In Steadman v. Securities and Exchange Commission (SEC), 450 U.S. 91, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981), the Supreme Court affirmed the SEC’s use of the preponderance of the evidence standard, and held that the legislative history of the APA reflects a decision by Congress that the preponderance of evidence standard applied to support a finding urged by a party with the burden of proceeding. Id. at 101-02, 101 S.Ct. at 1007-08; see also Sea Island Broadcasting Corp. of S.C. v. Federal Communications Commission, 627 F.2d 240 (1980), cert. denied, 449 U.S. 834, 101 S.Ct. 105, 66 L.Ed.2d 39 (1980) (“The use of the ‘preponderance of evidence’ standard is the traditional standard in civil and administrative proceedings. It is the one contemplated by the APA”).

In Aguilar, the Court instructed that before becoming entitled to “status” as a claimant for VA benefits, an appellant had first to demonstrate by a preponderance of the evidence (1) that he or she was a “veteran,” or (2) “veteran” status for the person upon whose military service the claim for VA benefits was predicated. Aguilar, 2 Vet.App. at 23. Only after predicate status is established does a claimant come under the aegis offered by title 38 to “veterans.” Today, the Court explains the rationale for requiring a preponderance of the evidence of predicate veteran status prior to entitlement to the procedural advantages found in title 38.

In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Supreme Court addressed the issue of whether the standard of review in an indefinite commitment case was “beyond a reasonable doubt” or “by clear and convincing evidence.” The Court examined the historical importance of “standard of review” and included the following discussion:

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” ... The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

At one end of the spectrum is the typical civil case.... Since society has a minimal concern with the outcome of such private suits, plaintiffs burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.

[T]he ultimate truth as to how the standards of proof affect decisionmaking may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country.... Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a “standard of proof is more than an empty semantic exercise.” In cases involving individual rights, whether criminal or civil, “[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.”

Id. at 423-25, 99 S.Ct. at 1808-09 (citations omitted). In Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), this Court examined the benefit of the doubt doctrine in light of other standards of proof, i.e., evidentiary thresholds which a litigant must achieve in order to prevail. In discussing section 5107(b) the Court stated the following:

The statutory “benefit of the doubt” standard of proof for cases dealing with veterans benefits is at the farthest end of the spectrum, beyond even the “fair preponderance” standard- [A] veteran need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail; entitlement need not be established “beyond a reasonable doubt,” by “clear and convincing evidence,” or by a “fair preponderance of evidence.” ... This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an “approximate balance of positive and negative evidence.” By tradition and by statute, the benefit of the doubt belongs to the veteran.

Gilbert, 1 Vet.App. at 54.

3. Definition of “Veteran” under-38 U.S.C. § 101(2)

The term “veteran” is defined in title 38 at section 101(2) 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). Thus, an other than dishonorable discharge is a prerequisite to designation as a title 38 “veteran.” See 38 C.F.R. § 3.12. Under this Court’s case law and VA regulations, there is a significant difference between a bona fide veteran or the depen-dants and survivors of veterans, and a person claiming to be a member of that preferred class as the term “veteran” is statutorily understood. See 38 U.S.C. 101(2), 38 C.F.R. §§ 3.1(d), 3.12, 3.14 (1996).

The Department of Veterans Affairs was created to administer the laws applicable to a specific class: veterans and the survivors and dependants of veterans. See e.g., H.R.Rep. No. 963, 100th Cong., 2d Sess. 9 (1988), reprinted in, 1988 U.S.C.C.A.N. 5782, 5790-91, citing Government Printing Office, Federal Laws Relating to Veterans of Wars of the United States 25 (1932) (noting that in the United States, the Continental Congress “promised to provide pensions to those disabled in the cause of American independence”). Section 301 states that the “purpose of the Department [of Veterans Affairs] is to administer the laws providing benefits and other services to veterans and the dependents and the beneficiaries of veterans.” 38 U.S.C. § 301 (emphasis added). Section 511 requires that the Secretary “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.” 38 U.S.C. § 511 (emphasis added). All provisions relating to entitlement for benefits administered by VA are available only to veterans or veterans’ survivors and dependents. See, e.g., 38 U.S.C. §§ 1110, 1121,1131,1141.

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. VA’s “duty to assist” (38 U.S.C. § 5107(a)) and the benefit of the doubt doctrine (38 U.S.C. § 5107(b)) are reserved for veterans and their dependents and survivors. See Aguilar, 2 Vet.App. at 23 (“Before applying for benefits, a veteran must submit evidence of service and the character of the veteran’s discharge.... A veteran or spouse who fails to submit appropriate evidence never attains the status of claimant.”); Holmes v. Brown, 10 Vet.App. 38, 42 (1997) (declining to apply the benefit-of-the-doubt doctrine where claimant has not first established status); see e.g., Dedicatoria v. Brown, 8 Vet.App. 441, 443 (1995); Brillo v. Brown, 7 Vet.App. 102, 105 (1994); Sandoval v. Brown, 7 Vet.App. 7, 9 (1994); cf. Camarena v. Brown, 6 Vet.App. 565, 567-68 (1994) (discussing the plain meaning of “veteran” as found in 38 U.S.C. § 101(2), and concluding “that Congress did not say or intend to say that only those receiving ‘dishonorable discharges’ would be denied veteran status.” (emphasis added)). See also Gilbert, 1 Vet.App. at 53 (“A unique standard of proof applies in decisions on claims for veterans benefits. Unlike other claimants and litigants, pursuant to [38 U.S.C. § 5107(b)], a veteran is entitled to the ‘benefit of the doubt’ when there is an ‘approximate balance of positive and negative evidence.’ ” (emphasis added)).

As is the case with the benefit of the doubt doctrine and the Secretary’s duty to assist, the evidentiary thresholds inherent in the concepts of what evidence will “well ground” a claim and what constitutes the requisite “new and material” evidence required to reopen a previously disallowed claim, are similarly relaxed by virtue of their application to veterans and other eligible claimants. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990) (applying a “common sense construction” to the definition of a well-grounded claim); see also Evans v. Brown, 9 Vet.App. 273, 282-84 (1996) (setting forth analysis applicable to determinations of what evidence constitutes “new and material” for purposes of reopening and discussing presumption of credibility afforded to newly presented evidence); see generally Ivey v. Derwinski, 2 Vet.App. 320, 326 (1992) (Stein-berg, J., concurring) (comparing threshold requirements for well-grounded claims and claims to reopen). Having only to submit a well-grounded claim (as opposed to the burden of going forward with preponderating evidence as seen in APA-regulated cases, see Steadman, supra) is an advantage afforded to veterans by virtue of their status. See Gilbert, supra. 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.

Accordingly, our disposition here is consistent with the earlier holdings in Aguilar, Sarmiento, and Edenfield, all supra. However, in Linsday v. Brown, 9 Vet.App. 225 (1996), this Court’s inconsistent rationale resulted in affirmance of a Board holding that the claim was not well grounded for lack of status. That rationale is at odds with our holding herein, and to that extent, Linsday is overruled. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). See also Robinson v. United States, 272 F.2d 554 (D.C.Cir.1959) (holding of appellate court panel is binding law unless and until superior tribunal, including en banc court, makes determination that strips ruling of validity); M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971).

III. CONCLUSION

Accordingly, the order denying relief contained in the Board’s February 9, 1996, decision is AFFIRMED for the reasons which are contained herein, and which are at divergence with those given by the Board. 38 U.S.C. § 7261(a)(3)(C).

Our dissenting colleagues, with apparent umbrage, have stated their views and are unable to sway the majority. As a matter of fact, they have been stating their views on these issues since 1991, so their disagreement is hardly new or in need of further illumination. See, e.g., Aguilar, 2 Vet.App. at 23-24 (Kramer, J., concurring); Scott v. Principi 3 Vet.App. 352, 356-57 (1992) (Kramer and Steinberg, JJ., concurring separately); Rogers v. Derwinski, 2 Vet.App. 419, 422 (1992) (Steinberg, J., concurring). To the extent they are concerned with our internal process, note should be taken that a flat disagreement exists which is resolved by a majority vote. That being so, we should avoid needlessly consuming more time and resources on additional briefing and oral argument (none would be possible in this case without obtaining an amicus). Our charge is to rule on issues which define the veterans benefits laws and process, with which others are rightfully and properly concerned. Where disagreement exists, we should declare it and proceed to decision. The appellate process is to facilitate reasoned decisions. It is not for protracted and delaying negotiation where the issue is clearly defined and further debate would be but a waste of time — ours and those concerned with our decisions. Indeed, the Supreme Court of the United States frequently renders summary disposition where merits doubt or disagreement exists together with a desire for plenary deliberation by a minority of that Court. See e.g., Mazurek v. Armstrong, — U.S. -,-, 117 S.Ct. 1865, 1869, 138 L.Ed.2d 162 (1997).