          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            No. 00-970

                                 LARRY D. RUFFIN , APPELLANT ,

                                                 V.


                                    ANTHONY J. PRINCIPI,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                         On Appeal from the Board of Veterans' Appeals


(Argued December 5, 2001                                      Decided March 11, 2002 )



       James W. Stanley, Jr., of North Little Rock, Arkansas, for the appellant.

        Ann G. Gawalt, with whom Tim S. McClain, General Counsel; R. Randall Campbell, Acting
Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, were
on the pleadings, all of Washington, D.C., for the appellee.

       Before KRAMER, Chief Judge, and HOLDAWAY and IVERS, Judges.

       IVERS, Judge, filed the opinion of the Court. KRAMER, Chief Judge, filed a concurring
opinion.

       IVERS, Judge: The veteran has appealed only one part of a February 10, 2000, decision of
the Board of Veterans' Appeals (BVA or Board), and only that part of the Board's decision is
addressed herein. The veteran framed the issue on appeal as whether the Board incorrectly
determined that his 1969 claim for service connection for a back disability was no longer an open
claim. The unique factual and procedural circumstances of this case call for an opinion of the Court.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
       At oral argument, the Court, hearing no objection from counsel for the veteran, deemed as
filed the Secretary's motions for leave to file a supplement to the record on appeal and a
supplemental brief, and the attendant documents. The motions for leave to file have thereby been
granted, and the supplemental record on appeal and the Secretary's supplemental brief are filed.
                                             I. FACTS
       Upon his discharge from active service in the U.S. Army, the veteran filed a claim for VA
benefits with respect to, among other conditions, stiffness in his back. Record (R.) at 12, 15. A July
30, 1969, VA regional office (RO) decision regarding his claim found that his back stiffness was in
the region of his lumbar spine, was developmental, and was not a disability under the law. R. at 15-
16. The veteran did not appeal the RO decision.
       In 1982, the veteran sought to reopen his claim regarding his lower back. R. at 18-19, 22.
In a decision dated September 24, 1982, the RO found that "[s]ervice connection ha[d] previously
been denied for developmental anomalies, lumbar spine." R. at 24. The RO notified the veteran of
the decision regarding his lower-back claim in one sentence of an October 12, 1982, letter: "Service
connection has previously been denied for developmental anomalies, lumbar spine." R. at 28. The
veteran did not appeal this RO decision.
       In a letter to the RO, dated April 17, 1998, the veteran, through counsel, asserted that he had
never been notified of the 1969 denial of his lower back claim, and requested a formal decision on
that claim. R. at 55. The RO responded, in a May 18, 1998, letter, stating as follows:
               A thorough review of our records does not indicate that proper
               notification was forwarded to Mr. Ruffin at the time a decision was
               made on this claim in 1969. However, in [a VA] letter dated October
               8, 1982, Mr Ruffin was notified that his claim for a spinal disorder
               had previously been denied. Based on this information, the
               notification forwarded in 1982 finalized this issue and the appeal
               rights have expired.

R. at 57. The RO noted that the October 8, 1982, VA letter listed "developmental anomalies" among
conditions for which service connection had not been established. R. at 26. Presumably, the RO
considered the veteran's developmental anomalies in his lumbar spine as one of these
"developmental anomalies."
       On May 27, 1998, the veteran filed a Notice of Disagreement concerning the disposition
communicated in the May 18, 1998, RO letter. R. at 59. In the February 10, 2000, decision on
appeal, the Board concluded that the RO had denied service connection for a back disability in 1969,
and that the September 1982 RO decision confirmed and continued the July 1969 denial. R. at 3.

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In response to the veteran's contention that he was not notified of the 1969 denial, the Board
concluded: "By means of a September 1982 rating action, service connection for a lumbar spine
disability was denied. The veteran was notified of this continued denial of service connection and
furnished with a copy of his procedural and appellate rights in October 1982." R. at 4.


                                          II. ANALYSIS
       In 1969, the regulation addressing VA's duty to notify claimants of RO decisions read as
follows:
               [T]he claimant will be notified of any decision authorizing the
               payment of benefit or disallowance of a claim. Notice will include
               the reason for the decision, the claimant's right to initiate an appeal by
               filing a notice of disagreement and the time limits within which such
               notice may be filed.

38 C.F.R. § 3.103 (1969). In addressing the veteran's contention that he was not notified of the 1969
RO denial of his lower-back claim, the Board, at the very least, failed to comply with the regulatory
requirement that a reason be provided for the 1969 denial. See R. at 3-4.
       The attempt to have the October 8, 1982, denial letter construed as a denial of the 1969
lower-back claim is likewise insufficient. See R. at 26. The October 12, 1982, RO letter, stating
that "[s]ervice connection ha[d] previously been denied for developmental anomalies, lumbar spine,"
cannot stand as a denial of the 1969 claim in compliance with the governing regulation, 38 C.F.R.
§ 3.103. See R. at 28. For these reasons, the Court holds that the Board did not provide adequate
reasons or bases to support its decision that the veteran was notified of the 1969 denial of service
connection, in compliance with the governing regulation. See 38 U.S.C. § 7104(d).
       During the oral argument for this appeal, it became abundantly clear that whether the veteran
was properly notified of the denial of his 1969 lower-back claim is an unresolved factual matter.
This Court is precluded from making findings of fact in the first instance. See Sanchez-Benitez v.
Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001); Hensley v. West, 212 F.3d 1255, 1264 (Fed. Cir.
2000). For that reason, the Court will leave open the question that initiated this action, first raised
in the veteran's April 1998 letter to the RO.
       Also during the oral argument, counsel for the veteran averred that the primary purpose of


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the appeal is to preserve the 1969 claim date, on the chance that the veteran might receive a grant
of service connection for his lower-back condition through some later claim. This argument is, of
course, premature.    The Court, taking due account of the rule of prejudicial error, 38 U.S.C.
§ 7261(b), takes no action that is not required to dispose properly of the present appeal.


                                        III. CONCLUSION
       Based on the record, as supplemented, and the pleadings filed for this appeal, and consistent
with this opinion, the February 10, 2000, BVA decision is VACATED as to the issue of whether the
veteran's 1969 claim for service connection for a back disability remains an open claim, and that
matter is REMANDED for further adjudication.


       KRAMER, Chief Judge, concurring in the result: I concur in the vacatur of the February 10,
2000, Board of Veterans' Appeals (Board or BVA) decision with respect to the issue of the finality
of the July 1969 VA regional office (RO) denial of the appellant's claim for service connection for
a back condition and in the remand of that matter. I write separately to explicate the issues that I
believe, at a minimum, the Board, on remand, should address in providing an adequate statement of
reasons or bases for any decision that it renders. Initially, I note that the appellant acknowledged at
oral argument that his primary purpose in bringing this appeal was premised upon the supposition
that at some time in the future he might eventually be awarded service connection for his back
condition and that he was attempting to preserve a 1969 effective date for any such award and that
on appeal the appellant is not arguing that: the Court now should award him service connection for
his back condition; there was sufficient evidence of record for the Board to have awarded him
service connection for that condition; or he has evidence to submit in support of his original claim
for service connection for that condition. These circumstances raise a question as to whether there
exists any current case or controversy for this Court to consider. See Bond v. Derwinski, 2 Vet.App.
376, 377 (1992) (per curiam order); Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990). Nevertheless,
because the appellant acknowledged at oral argument that, in seeking to secure such a prospective
grant of service connection, an additional purpose in bringing this appeal was to avoid having to
provide the quantum of proof necessary for a reopened claim, I believe that there does indeed exist


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a current case or controversy. See 38 U.S.C. § 5108 (Reopening disallowed claims); 38 C.F.R.
§ 3.156(a) (2001) (New and material evidence); Hodge v. West, 155 F.3d 1356, 1362-64 (Fed. Cir.
1998) (defining proper regulatory standard of new and material evidence).
        Thus, as reflected in the record on appeal (ROA), the parties' pleadings, and the parties'
statements at oral argument, the question becomes whether the RO should now send to the appellant
notice of the July 1969 denial of his claim for service connection for his back condition. In this
regard, I note that, because the appellant requested, in April 1998, that the RO send to him notice
of its 1969 denial of his claim (Record (R.) at 55), because the RO decided, in May 1998, that the
appellant was not entitled to such notice (R. at 57), and because the appellant filed a Notice of
Disagreement (NOD) as to that RO determination (R. at 59), the issue of notice was reasonably
raised to the Board, and thus the Board was required to address it. See 38 U.S.C. §§ 7104(a) (Board
decisions shall be based on entire record and upon consideration of all evidence and material of
record and applicable provisions of law and regulation), 7105 (Filing of NOD and appeal). In
addressing this issue in the February 2000 Board decision on appeal, the Board, relying upon an
October 12, 1982, letter from the RO to the appellant in which the RO stated that the appellant's
claim for service connection "ha[d] previously been denied for developmental anomalies," found that
the appellant was provided notice, in that October 1982 letter, of the RO's July 1969 denial of his
claim for service connection for his back condition. R. at 4, 28. The Board thus concluded that,
because the appellant failed to file an NOD within one year of that October 1982 notification letter,
the RO's 1982 denial, and in essence its July 1969 denial, of the appellant's claim became final.
R. at 4-5.
        I believe, however, that the Board's February 2000 decision is inadequate in that the BVA
failed to address, inter alia, the adequacy, under the applicable regulations, of any notice that may
have been provided to the appellant in 1982. In this regard, the Board failed to address whether the
October 1982 letter upon which it relied complied with the applicable regulations extant in 1969 and
1982, which appear to require that notice of the RO's denial contain a reason for such denial. See
38 C.F.R. § 3.103 (1969); 38 C.F.R. § 3.103(e) (1982). If the Board cannot conclude that the
October 1982 letter does contain such a reason, the BVA then should address the presumption of
regularity.


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       With respect to the presumption of regularity, the Board first should address whether it
should be presumed that, as reflected in an August 1969 disability award worksheet that was
discussed in a July 1998 Statement of the Case and that was submitted to the Court by the Secretary
as a supplemental ROA, the appellant, in 1969, was notified of the July 1969 RO decision. R. at 71;
Supplemental R. at 1-2; see Davis v. Brown, 7 Vet.App. 298, 300 (1994) (there exists presumption
that appellant was notified of BVA decision and that presumption can be overcome only by "'clear
evidence to the contrary'" (quoting Ashley v. Derwinski, 2 Vet.App. 307, 308-09 (1992)). If the
Board determines that such a presumption exists, the BVA next should consider whether the May
1998 letter from the RO to the appellant, in which the RO stated that "[a] thorough review of our
records does not indicate that proper notification [of the RO's denial of his claim] was forwarded to
[the appellant in 1969]," rebuts that presumption. R. at 57; see Schoolman v. West, 12 Vet.App. 307,
310 (1999) (Board is finder of fact for determining whether presumption of regularity has been
rebutted). If such rebuttal has occurred, the Board finally should consider whether the Secretary has
carried his burden to show that the appellant was notified of the 1969 RO denial of his claim. See
Woods v. Gober, 14 Vet.App. 214, 220 (2000); Davis and Ashley, both supra.




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