**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 00-970

[Larry D. Ruffin , Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

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. 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 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 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.  

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*.