       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

         CARLOS R. GARCIA RODRIGUEZ,
               Claimant-Appellant,
                          v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2011-7173
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-3655, Judge Mary J.
Schoelen.
             __________________________

              Decided: January 12, 2012
             ___________________________

    CARLOS R. GARCIA RODRIGUEZ, of Providence, Puerto
Rico, pro se.

    STACEY K. GRIGSBY, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
GARCIA RODRIGUEZ   v. DVA                               2


F. HOCKEY, Assistant Director. Of counsel on the brief
were MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel, and TRACEY P. WARREN, Attorney, United States
Veterans Affairs, of Washington, DC.
               __________________________

    Before DYK, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.
     Carlos R. Garcia Rodriguez appeals a decision of the
U.S. Court of Appeals for Veterans Claims (“Veterans
Court”), Rodriguez v. Shinseki, No. 09-3655, 2011 WL
1485471 (Vet. App. Apr. 20, 2011). The Veterans Court
affirmed an August 10, 2009, decision by the Board of
Veterans’ Appeals (“Board”), which denied entitlement to
an effective date earlier than April 3, 1990, for an award
of service-connected disability. We affirm.
                       BACKGROUND
    The appellant served on active duty in the U.S. Army
from May 1968 to February 1970. After leaving the
service, the appellant filed a claim for service-connected
disability for headaches and nervousness. A Department
of Veterans Affairs regional office (“RO”) denied the
appellant’s claim in November 1970. The appellant
submitted additional arguments and evidence supporting
his claim for service connection in October 1971, but the
RO confirmed the denial of service connection in January
1972. The RO explained that if the appellant believed the
RO’s decision was incorrect, he “may initiate an appeal to
the Board . . . by filing a [N]otice of [D]isagreement
[(NOD)] at any time within one year from the date of this
letter.” Rodriguez, 2011 WL 1485471, at *1 (quoting the
RO letter) (alterations in original); see 38 U.S.C.
3                                  GARCIA RODRIGUEZ   v. DVA


§ 7105(a)-(b)(1). 1 The letter further explained that an
NOD is a “written communication which makes clear your
intention to initiate an appeal.” Rodriguez, 2011 WL
1485471, at *1 (quoting the RO letter); see 38 C.F.R.
§ 20.201.
    The RO subsequently received three separate letters
from the appellant. First, in April 1972, the RO received
a letter from the appellant expressing his disagreement
with the RO’s denial of his claim. Second, in September
1972, the RO received a letter from the appellant again
expressing his disagreement with the RO’s denial of his
claim. The September 1972 letter specifically stated:
       I do not agree with your decision because in
    my opinion those conditions are service-connected
    ....
         I respectfully request from you the statement
    of [the] case because I have decided to initiate my
    appeal before the Board of Veterans Appeals in
    Washington, D.C. Please consider this as a notice
    of disagreement for the proper action.
Resp’t-Appellee App. 36-37; see also Rodriguez, 2011 WL
1485471, at *1-2. Finally, in January 1973, the RO
received a third letter from the appellant. The January
1973 letter stated:
        I do not agree with that decision because my
    conditions are service-connected because they
    originated from [an] incident . . . which caused me



    1   The statute governing appeals to the Board that
was in effect at the time of the appellant’s letters, 38
U.S.C. § 4005 (1970), is nearly identical to the governing
statute today, 38 U.S.C. § 7105. For the purposes of this
opinion, we will refer to 38 U.S.C. § 7105.
GARCIA RODRIGUEZ   v. DVA                                 4


   injury (physical and emotional), during service in
   December 1969 . . . .
       I respectfully request the statement of the
   case because I have the intention to initiate an
   appeal before the Board of Veterans Appeals . . . .
Resp’t-Appellee App. 39; see also Rodriguez, 2011 WL
1485471, at *2.
    In July 1973, the RO issued a statement of the case,
continuing to deny service connection for the appellant’s
nervousness and headaches. An RO letter accompanying
the statement of the case explained the required proce-
dures for an appeal. The letter explained that the state-
ment of the case was an explanation of the reasons for the
denial, required in response to the appellant’s NOD so
that the appellant could “make the best possible argu-
ment” in an appeal to the Board. Rodriguez, 2011 WL
1485471, at *2 (quoting the RO letter); see 38 U.S.C.
§ 7105(d)(1). The RO letter further explained that the
appellant’s “‘Substantive Appeal’ should be set out on the
attached VA Form 1-9,” which must be filed within 60
days. Rodriguez, 2011 WL 1485471, at *2 (quoting the
RO letter); see 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.202.
No VA Form 1-9 or other correspondence containing the
necessary information was filed within 60 days.
    Many years later, on April 3, 1990, the appellant filed
the claim which is the subject of this appeal. The RO
awarded service connection for an anxiety disorder (rated
at 70% disabling) and for a total disability rating based on
individual unemployability (“TDIU”), both effective April
3, 1990. The appellant subsequently appealed the effec-
tive dates of both awards to the Board.
   The appellant argued that the September 1972 letter
was actually a substantive appeal to the denial of his
5                                  GARCIA RODRIGUEZ   v. DVA


1970 claim, despite the fact that it preceded the July 1973
statement of the case. According to the appellant, the
effective date of his service connection and TDIU could be
based on his 1970 claim because the resolution of that
claim had not become final due to the allegedly unre-
solved appeal. In a 2004 decision, the Board acknowl-
edged that an earlier effective date could be warranted if
a prior service connection claim had not become final. See
Rodriguez v. Nicholson, No. 04-1702, 2007 WL 470261, at
*2 (Vet. App. Jan. 29, 2007). However, the Board charac-
terized the April 1972 letter and the September 1972
letter as NODs. The Board also found that the appellant
had failed to file a substantive appeal following the July
1973 statement of the case and that the appellant’s 1970
claim had become final. Accordingly, the Board held that
the appellant was not entitled to an effective date earlier
than April 3, 1990, for the award of service connection for
an anxiety disorder and TDIU. The appellant subse-
quently appealed to the Veterans Court.
    In a January 2007 decision, the Veterans Court de-
termined that there could only be one NOD to initiate an
appeal, and thus the April 1972 letter and the September
1972 could not both be NODs. Rodriguez, 2007 WL
470261, at *4. The Veterans Court remanded the case to
the Board to determine “whether the September 1972
statement satisfied the requirement of a Substantive
Appeal . . . notwithstanding the fact that the RO did not
issue [a statement of the case] until July 1973.” Id.
    In an August 2009 decision, the Board again deter-
mined that the appellant’s September 1972 letter was not
a substantive appeal. The Board reasoned that the lan-
guage in the September 1972 letter demonstrated that the
appellant did not intend the September 1972 letter to be a
substantive appeal. According to the Board, the letter
demonstrated the appellant’s understanding that he
GARCIA RODRIGUEZ   v. DVA                                 6


needed to submit an appeal after receiving a statement of
the case. Because the Board did not consider the Septem-
ber 1972 letter to be a substantive appeal, the Board
found that no appeals were pending at the time of the
appellant’s April 3, 1990, request to reopen his claim for
service connection. Thus, the Board held that April 3,
1990, was the earliest possible effective date for the
award of service connection for an anxiety disorder and
TDIU.
    The appellant subsequently appealed the Board’s Au-
gust 2009 decision to the Veterans Court. The Veterans
Court agreed with the Board that the appellant’s Septem-
ber 1972 letter “reflect[ed] a general understanding of the
appeals process, i.e., that an appeal to the Board follows
the RO’s issuance of [a statement of the case].” Rodri-
guez, 2011 WL 1485471, at *6. The Veterans Court also
found that the appellant’s January 1973 letter requesting
the VA to issue a statement of the case because of his
“intention to initiate an appeal” further established the
appellant’s “understanding that further action was neces-
sary to complete his appeal.” Id. Because the 1970 claim
had become final, the Veterans Court affirmed the
Board’s decision that April 3, 1990, was the earliest
possible effective date for the award of service connection
for an anxiety disorder and for TDIU. The appellant
timely appealed to this court.
                        DISCUSSION
    Under 38 U.S.C. § 7292(c), our jurisdiction to review
Veterans Court decisions is limited to “challenge[s] to the
validity of any statute or regulation or any interpretation
thereof.” We may not review “(A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case” unless the appeal
“presents a constitutional issue.” Id. § 7292(d)(2); see
7                                   GARCIA RODRIGUEZ   v. DVA


Guillory v. Shinseki, 603 F.3d 981, 986 (Fed. Cir. 2010).
As we held in Rivera v. Shinseki, 654 F.3d 1377, 1382
(Fed. Cir. 2011), “[w]here . . . the underlying facts are
undisputed, it is within our jurisdiction to decide the
ultimate legal question.”
    The appellant argues that the September 1972 letter
should be treated as a substantive appeal. The statute
governing appeals to the Board states in relevant part:
“Appellate review will be initiated by a notice of dis-
agreement and completed by a substantive appeal after a
statement of the case is furnished . . . .” 38 U.S.C.
§ 7105(a). “The appeal should set out specific allegations
of error of fact or law, such allegations related to specific
items in the statement of the case.” Id. § 7105(d)(3).
     This court recently held that “[s]ection 7105(d)(3) does
not prescribe a particular format for the veteran’s appeal
or a particular degree of specificity that must be pro-
vided.” Rivera, 654 F.3d at 1381. In Rivera, we consid-
ered whether a letter from a veteran submitted after a
statement of the case had been issued could be sufficient
to qualify as a substantive appeal in the absence of a VA
Form 1-9. Id. at 1378, 1381-82. Because the veteran’s
letter was, under the circumstances, “sufficient to identify
the issue on appeal,” we held that the veteran had “sat-
isf[ied] the statutory standard” for filing a substantive
appeal. Id. at 1382.
     The present case, however, is distinguishable from
Rivera. Here, the appellant’s September 1972 letter was
filed before the statement of the case was issued in July
1973. Moreover, the September 1972 letter was labeled
as a “notice of disagreement” and requested that the RO
issue a “statement of [the] case.” Resp’t-Appellee App. 37.
As the Board and the Veterans Court found, the language
in the letter itself showed the appellant’s understanding
GARCIA RODRIGUEZ   v. DVA                                   8


of the appeal process, and specifically, that the appellant
understood he needed to file an appeal after receiving the
statement of the case that he requested. 2 In such circum-
stances, we hold that the September 1972 letter does not
qualify as a substantive appeal as required by statute.
Because no appeals were pending at the time of the
appellant’s April 3, 1990, request to reopen his claim, the
appellant is not entitled to an earlier effective date for the
award of service connection for an anxiety disorder and
TDIU.
                            COSTS
    No costs.




    2   We previously held that, as a jurisdictional mat-
ter, there can only be one notice of disagreement. Hamil-
ton v. Brown, 39 F.3d 1574, 1582, 1584 (Fed. Cir. 1994)
(citing Veteran's Judicial Review Act, Pub. L. No. 100–
687, § 402, 102 Stat. 4105, 4122 (1988) (repealed in part
by Pub. L. No. 107-103, § 603(c), 115 Stat. 976, 999
(2001))). But nothing in Hamilton suggests that the
appellant’s September 1972 letter should be, under the
circumstances, construed as anything other than an
attempted further notice of disagreement, or that the
September 1972 letter should be treated as a substantive
appeal.
