concurring in part and dissenting in part:
Because we believe that the appellant has not submitted new and material evidence to reopen his claim of entitlement to veterans benefits, we concur only in the result of affirming the Board’s February 9,1996, decision and its “denial of relief’ pursuant to 38 U.S.C. § 7104(d)(2). We otherwise dissent.
I.
The majority purports to overrule Linsday v. Brown, 9 Vet.App. 225, 228-29 (1996), to the extent that it holds that status is an element of a claim. The majority would have us believe that the denial of status constitutes the denial of a nonclaim and that the *87denied claimant is a nonclaimant. In doing so, the majority relies on statute and case law that have never been applied to VA adjudications, and verbatim quotes (without quotation marks) from Thurber v. Brown, 5 Vet.App. 119, 125 (1993). The opinion, however, leaves out that part of the quotation (underlined below) that expresses the contrary view. In order to provide the complete picture, we will put the author’s quote in proper context:
The Court has not addressed the issue of ' the applicability of the APA to the VA adjudication process, and we express no opinion in this decision. See 5 U.S.C.[ ] §§ 554, 556(d), (e) (West 1990 & Supp. 1993); 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”); Barefield v. Byrd, 320 F.2d 455, 457 (5th Cir.1963) ([Secretary] is not bound to conform to APA provisions since title 38 of the United States Code does not require adjudications “to be determined on the record after opportunity for an agency hearing”). The Court notes, however, that the legislative history of the VJRA indicates that, while the Senate bill would have provided additional statutory rights with respect to notice and an opportunity to be heard, the compromise agreement adopted the Senate position only with respect to hearings before traveling sections of the EVA, preferring, in general, to rely on existing “informal procedures” and “fundamental ... due process rights,” and specifically stating “that the title 5 procedures relating to adjudications continue to be inapplicable.” See ExplanatoRY Statement, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 5842-44. Nevertheless, the Court believes that 5 U.S.C.[ ] § 556 is worthy of at least mention.
Thurber, supra (underlining added). Moreover, the majority inexplicably fails to address Chief Judge Archer’s recent concurring opinion in Grantham v. Brown, 114 F.3d 1156, 1160 n. 1 (Fed.Cir.1997) (Archer, C.J., concurring), which supports Linsday by con-eluding that status is an issue or element of a claim, or this Court’s own en bane conclusion to the same effect in West v. Brown, 7 Vet.App. 329, 332 (1995) (en banc) (“the veteran’s status” is one element of a claim), overruled on other grounds by Grantham v. Brown, 114 F.3d 1156 (Fed.Cir.1997), and Barrera v. Gober, 122 F.3d 1030 (Fed.Cir.1997). See also Aguilar v. Derwinski 2 Vet.App. 21, 23-24 (1991) (Kramer, J., concurring) (disagreeing with majority’s suggestion “that a different ... standard of proof applies to establishing a claimant’s status as a veteran or a veteran’s spouse from that required to decide the merits of other issues material to a claim”); West, supra (quoting with approval and citing as “See” Sarmiento v. Brown, 7 Vet.App. 80, 87 (1994) (Kramer, J., concurring) (“status [is] merely one element of a claim to be established in the same way as any other element involved in a claim”)).
We reiterate from Judge Kramer’s concurring opinion in Sarmiento:
An examination of [38 U.S.C. §§ 5107(a), 5108, 7104(b), and 7105(c)] leads to the inescapable conclusion ... that the so-called doctrines of nonclaimants ... [and] nonclaims ... are mere illusions of Cop-perfieldian proportions, judicial fabrications without statutory foundation.
Section 5107(a) provides:
[A] person who submits a claim for benefits ... shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim.
(Emphasis added.) The only possible inferences that can be drawn from this language are that there is such a thing as a claim that is not well grounded (not a nonclaim) and that there is such a thing as a claimant who is not entitled to assistance (not a nonclaimant).
Section 5108 provides that “[i]f 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 *88the claim.” (Emphasis added.) A claim may be disposed of by disallowance on any number of alternative bases, including lack of jurisdiction, failure to meet filing period requirements, lack of status, lack of well-groundedness, lack of new and material evidence, or lack of entitlement on the merits. Nothing in this statutory language states, suggests, or remotely intimates that a disposition by disallowance occurs only where there has been an unfavorable merits adjudication_ Nothing in this language states, suggests, or remotely intimates that where a claim is disposed of by a non-merits-based disallowance, the claim becomes a nonclaim. Quite the contrary, the double reference to a disallowed claim as “the claim” affirmatively refutes the notion of a nonclaim.
Section 7104(b) provides that “[ejxcept as provided in section 5108 of this title, when a claim is disallowed by the [BVA], the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” (Emphasis added.) Nothing in this statutory language states, suggests, or remotely intimates that a claim can be disallowed only on the merits. Nothing in this language states, suggests, or remotely intimates that when a claim is disallowed on any basis other than on the merits, the claim becomes a nonclaim. And again, to the contrary, the reference to a disallowed claim as “the claim” affirmatively refutes the notion of a nonclaim.
Section 7105(c) provides:
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_
(Emphasis added.) Nothing in this statutory language states, suggests, or remotely intimates that an action may be taken or determination made only on the merits. As with dispositions by disallowance, discussed supra, an action or determination may be predicated on many alternative bases, including any of those indicated above. Nothing in this language states, suggests, or remotely intimates that once a non-merits-based adverse action is taken or adverse determination made, such action or determination makes the claim a nonclaim. And once again, to the contrary, the use of the words “final” and “the claim” suggests that the claim retains status as a finally acted-upon or determined claim (not a nonclaim), regardless of the basis of such action or determination, until it may later be reopened or allowed.
Sarmiento, 7 Vet.App. at 88-89 (Kramer, J., concurring).
In addition, 38 U.S.C. § 5107(b) provides: When, after consideration of all evidence and material of record in a case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.
In construing a statute, a good place to start would be with the statute. See Gardner v. Brown, 5 F.3d 1456, 1458 (Fed.Cir.1993) (“starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter” (internal quotation marks omitted)), aff'd, Brown v. Gardner, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). Yet, the majority focuses every place other than on the applicable and dispositive provisions of 38 U.S.C. § 5107, which is entitled “Burden of proof; benefit of the doubt.” That section occupies the field as to allocations of burdens of proof on those seeking VA benefits. Not satisfied with the determinative provisions of the statute, the majority essentially ignores them and then usurps the legislative role by rewriting the statute to suit its policy preferences.
Hence, we have a majority opinion that, in essence, amends section 5107 — although actually ignoring its text — by changing “person” and “claimant” to “veteran or eligible dependent” in subsection (a) so that the duty to assist does not attach to the status question until the claimant proves status by a *89preponderance of evidence and does so at the very outset. Section 5107(a) is the only place where the statute puts the burden on a VA claimant, and that burden is expressed only in terms of what we have determined in our case law is a- requirement for a claimant to submit evidence that the claim is “plausible or capable of substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Obviously, the well-groundedness requirement does not require the claimant to submit sufficient evidence as to each element of a claim so as to reach equipoise on each such element, including status, let alone to reach a preponderance. It would be bad enough if the Court were “merely” reading “status” out of section 5107(b) — so that at the merits stage a preponderance was necessary for this one element of a claim — but the Court is also reading status out of section 5107(a) so that there can be no duty to assist as to that element even when there is enough evidence of status for the claim to be well grounded (“plausible”) on that element.
Furthermore, it should be kept in mind that status entails far more than just the nature of service by a particular would-be veteran. It entails all matter of items surrounding character of service, dependency, age, marital status, dependent-child helplessness, and so forth, as to which the duty to assist in section 5107(a) and the equipoise doctrine in section 5107(b) can make a real difference in case outcome. Moreover, the “preponderance” burden being imposed by the Court here does more than supposedly reduce the possible success of fraudulent claims by nonveterans; it also reduces the possible success of those claims brought by actual veterans, with qualifying service, who, for whatever reason (lost or destroyed records probably chief among them), are prevented from establishing veteran status by a preponderance of the evidence. In short, the policy preferences driving the opinion, in trying to preserve the benefits of sections 5107(a) and (b) for actual veterans, necessarily will result in depriving some of those very veterans of what they have earned.
In addition, 38 U.S.C. § 5104(a) provides: “In the case of a decision ... affecting the provision of benefits to a claimant, the Secretary shall ... provide to the claimant ... notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision”; § 5104(b) provides that: “[w]here the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered ... ”; and § 7105(d)(1) provides: “Where the claimant ... files a notice of disagreement with the decision of the agency of original jurisdiction, such agency will take such development or review action as it deems proper under the provisions of regulations not inconsistent with this title.” (Emphasis added.) Thus, if the majority is serious about creating a nonclaim and nonclaimant in any situation where a negative determination is made as to status, it would appear that such a nonclaimant would not have the right to file an NOD with respect to a determination regarding the nonclaimant’s non-claim and would have no right to administrative and judicial review. Moreover, carried to its necessary (and illogical) conclusion, the majority’s re-creation of nonclaimants with nonclaims seems to absolve VA of the responsibility even to issue any decision, thus — in this never-ending cycle — preventing “nonclaimants” from ever establishing veteran status. See 38 U.S.C. § 5104(a) (requiring Secretary to give “to a claimant” notice of benefits decision and statement of reasons for benefit denial and of appellate rights); Sarmiento, 7 Vet.App. at 83 (“[s]ince appellant never attained the status of claimant ... the Secretary was neither obligated to determine whether the appellant’s claim was well grounded nor under a statutory duty to assist”). Such a result seems incomprehensible in a nation of laws. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166, 2 L.Ed. 60 (1803) (“where a specific duty is assigned by law, and individual rights depend upon performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of this country for a remedy”).
Finally, the majority’s effort to limit Edenfield v. Brown, 8 Vet.App. 384 (1995) (en banc), to matters involving lack of well *90groundedness, so as not to apply it to matters involving status, is disingenuous. The clear message of Edenfield is that any decision to which an NOD may be filed is a decision as to a claim. Id. at 389 (“A claimant who files ... a claim, attaching such evidence as he has, is undeniably a claimant entitled to a disposition of his claim. Moreover, a decision disposing of that claim is subject to a Notice of Disagreement (NOD) and the internal VA appeal process triggered by an NOD.”). The majority acknowledges that the nonclaim/nonclaimant analysis in the Sarmiento panel opinion is “contrary to the main proposition” in the Edenfield en banc opinion. Ante at 88. To immediately then conclude that Edenfield did not overrule Sar-miento is not only a non sequitur, it is pure poppycock. Of course, it was overruled in that respect as is shown by the entire Eden-field discussion at 8 Vet.App. at 389 [headnote 6], including the citation with approval of the concurring opinion in Sarmiento, and by the conclusion that “not-well-grounded claims are nevertheless claims.”
II.
Equally inexplicable as the holdings discussed in Part I, supra, is the majority’s failure of logic in affirming the BVA decision, based on the appellant’s purported failure to establish status as a veteran, despite the absence of any BVA finding that the appellant was not a veteran. Pursuant to 38 U.S.C. § 101(2), a “veteran” is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefi’om under conditions other than dishonorable.” See also 38 U.S.C. §§ 1110, 1131. In holding that the appellant “failed to establish ... status as a veteran,” the majority appears to rely on its statement 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.” Ante at 81, 82. Although it is true that a dishonorable discharge pursuant to a sentence of a general court-martial would constitute an absolute bar to benefits, see 38 U.S.C. § 5303(a), a review of the record here reveals that the appellant neither received a court-martial nor a dishonorable discharge. Rather, the appellant was “discharged without honor” ostensibly for approximately four months of absence without leave (AWOL). R. at 85. The question thus becomes whether, under the facts, he was not discharged “under conditions other than dishonorable,” 38 U.S.C. § 101(2), i.e., whether the appellant was discharged under conditions other than honorable (OTH). Although the conditions under which an OTH discharge may be issued are not set forth by statute, they are set forth under 38 C.F.R. § 3.12 (1997). Given that the appellant was discharged without honor on the basis of approximately four months of AWOL, the only disqualifying provision potentially applicable to him under § 3.12 is that which authorizes an OTH discharge for willful and persistent misconduct. See 38 C.F.R. § 3.12(d)(4).
However, a review of the record reveals that, in its decision, the BVA made no findings under § 3.12 in general or § 3.12(d)(4) in particular, nor has the Court made any findings in this regard. Nor would it be appropriate for the Court to do so because determinations under § 3.12 and its paragraph (d)(4) are factual determinations that this Court reviews under a “clearly erroneous” standard. See Struck v. Brown, 9 Vet.App. 145, 153 (1996) (quoting Stringham v. Brown, 8 Vet.App. 445, 447 (1995) (“BVA’s determination whether a discharge is based on willful and persistent misconduct is a matter of fact which the Court reviews under the ‘clearly erroneous’ standard of review”)); see also 38 U.S.C. § 7261(a)(4); Servello v. Derwinski, 3 Vet.App. 196, 200-01 (1992) (“role of an appellate court is not to serve as a de novo factfinder”); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).
Having ruled out lack of new and material evidence as a basis for affirming the BVA decision, and being restricted from making factual findings, the majority was left with no basis upon which to affirm the BVA decision, yet it has done so.
III.
But the story becomes even more grim. Because the majority relies on the continuing viability of Sarmiento with respect to a sta*91tus determination, such a determination (assuming, contrary to the majority’s logic, that one would have to be made, see Part I, supra) not only must be made de novo whenever requested by what the majority would describe as a nonclaimant but also will never attain finality. (“Since [the] appellant never attained the status of claimant, he never submitted a claim....” Sarmiento, 7 Vet.App. at 83.) By purporting to treat a status question differently from any other element of a claim, rather than the Court simply affirming the BVA decision for lack of new and material evidence, the majority’s rationale requires, as indicated in Part II, supra, a new BVA decision — in other words, double work on behalf of the nonveteran. Moreover, this double work never ends and repeats itself over (triple work) and over (quadruple work) and forevermore, because so long as a so-called nonclaim-filing-non-claimant has the tenacity to assert “status,” such a nonclaimant will be entitled to continuing de novo adjudication. In this regard, despite the majority’s patriotic pronouncements (“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” 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,” ante at 86), the majority’s rationale thus provides more protections for nonveter-ans than for veterans. (Interestingly, the pro-veteran congressional sentiment that the majority purports to be vindicating is not quite accurately expressed. In the most recent characterization of VA’s adjudication system, the House Committee on Veterans’ Affairs stated: “Given the pro-claimant bias intended by Congress throughout the VA system, the Committee concludes that this legislation is necessary and desirable to ensure a just result in cases where such error has occurred.” H.R.Rep. No. 105-52, 105th Cong., 1st Sess. (Apr. 14, 1997) (emphasis added).)
IV.
Finally, the majority inexplicably renders its wisdom without benefit of a conference of the judges, briefing, or oral argument. In so doing, the majority, without providing reasons for doing so, disregards this Court’s established procedure of “usually convening] a conference or ... scheduling] oral argument” when “en banc consideration or review is ordered.” U.S. VetApp. Internal Operating PROCEDURES (IOP), V.(a)(4), 10 VetApp. LXXII. A conference, briefing, and oral argument might have provided enlightenment; in this case, left to itself, the majority has woven and donned a nonexistent cloth of nonelaimants and nonclaims from nonexistent statutory language. Although avoiding any such enlightenment, the majority must still face the exposure of public scrutiny and, it is to be hoped, review on appeal, that will lead to the revelation:
“But he doesn’t have anything on!” said a little child.
Hans Christian Andersen, The Emperor’s New Clothes, in The Snow Queen and Other Tales 72, 77 (Pat Shaw Iversen trans., The New American Library 1966).