dissenting.
This is a case where the majority’s application of judicial doctrine, without regard to the context of that application, produces a result contrary to law and to the dictates of common sense and fairness. Because no “presumption of regularity” can make the patently irregular regular or the facially unjust just, and for the reasons that follow, I dissent from the majority’s disposition and the path by which it is reached. In my view, the Board of Veterans’ Appeals (BVA or Board) had an affirmative duty to take further steps to try to reconstruct the missing claims file.
I. Loss and Reconstruction of the Claims File
The majority’s opinion concludes that there is no constitutional or other legal infirmity in the March 27,1995, Board decision in this case, which proceeded to an adjudication on the merits in spite of the fact that the Department of Veterans Affairs (VA) has twice lost the claims folder, once in 1988 and again, after the appeal was docketed at the Board, in 1991. Record (R.) at 3-4. In deciding that the appellant had not presented new and material evidence, the BVA relied upon the “reconstructed” claims folder, which contained only the following: The last page of its September 1966 decision; its March 1980 reconsideration decision; a transcript of an October 1990 BVA hearing; and “miscellaneous other documents”.1 R. at 4. The *203decision contains no statement as to how complete or fragmentary the Board believed that “reconstructed” folder to be, nor does the record on appeal (ROA) contain any indication that when the claims folder was lost for the second time, after the appeal was docketed, the Board notified the appellant that VA had lost the claims folder, inquired as to her ability to assist in its reconstruction, or informed her that it would be proceeding to adjudicate her claim on the merits on the basis of an incomplete record.
Rather than examining the facially apparent infirmity of the process accorded the appellant in her appeal before the Board to determine if it involved a due process or other legal violation, the majority interprets two of this Court’s prior opinions as providing the imprimatur of “regularity” to the Board’s decision.. The majority thereby begs the question of whether the appellant was afforded a review by the BVA that satisfied constitutional and other legal requirements and whether, in fact, she had submitted new and material evidence to reopen as to her claim for service connection for the cause of her husband’s death. The majority’s reliance on Dolan v. Brown, 9 Vet.App. 358, 362 (1996), and O’Hare v. Derwinski, 1 Vet.App. 365, 367. (1991), is misplaced and fails to address adequately the seriousness of the loss of the claims folder while the case was on appeal to the BVA and of the BVA’s making a decision on a fragmentary record without providing the appellant further opportunity to supplement, or to assist in reconstruction of, the record. Just as the Board cannot rely — to an appellant’s detriment — upon evidence that it has generated, without providing the appellant with notice of its intention to reply on that evidence and an opportunity to respond to it, see Thurber v. Brown, 5 Vet.App. 119, 126 (1993), neither, it seems to me, should the Board be permitted to rely — to the appellant’s detriment — upon the nonexistence of evidence that it has lost, without providing the appellant with notice of the loss of the evidence and an opportunity to correct that loss and respond to it.
In Dolan, the Court, in refusing to look behind the surface of a 41-year-old VA regional office (RO) decision, noted the presumption (“absent clear evidence to the contrary”) that public officers have “properly discharged their official duties.” Dolan, 9 Vet.App. at 362 (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926)). To the extent that the majority wishes to look to Dolan for a presumption of regularity that prohibits it from inquiring, absent clear evidence to the contrary, into the factual determinations of the 1980 BVA decision, I believe its application of that decision is appropriate. That 1980 BVA decision is final, and the Court possesses no jurisdiction to review it.2 However, I think it a vast leap from that to say, as the majority appears to in this case, that the presumption of regularity that the Court is giving to the 1980 BVA decision’s recitation of the “facts” justifies the 1995 BVA decision’s reliance on those facts for anything' other than an explanation of the status of the evidence in 1980. In Dolan, the Court used the presumption of regularity to avoid digging into the validity of an RO decision over which it had no jurisdiction; in the opinion in this case, the Court uses the presumption of regularity to avoid reviewing the validity of a BVA decision that is before the Court. The point in this ease is not whether the 1980 BVA decision was defective *204but whether the BVA decision on appeal is defective. Although the 1980 BVA decision’s discussion of the evidence then before it, in the context of a presumption of regularity and in the absence of the actual pre-1980 evidence, may assist the Board in determining whether evidence presented since then is “new”,3 it can supply no reckoning of the extent of the evidence presented after 1980, which is precisely the issue in question. The presumption of regularity that the Court attaches to the 1980 Board decision appears to slide into a presumption that the Board in 1995 had all the evidence before it necessary for a determination of whether new and material evidence had been presented. Such a presumption accords regularity to the actions of officials of the very government that twice has lost the entire claims file. In a rather Kafkaesque parody, that irregularity- — losing the file — is what has become the “regular” in this case.
The majority’s reliance upon O’Hare is similarly misplaced because the majority treats this as a “missing records” case calling only for “heightened consideration”. Ante at 201. O’Hare found that, when there were missing service medical records (SMRs), the Board had a heightened reasons-or-bases duty to explain how it reached its decision in the absence of those records. See O’Hare, supra; 38 U.S.C. § 7104(d). I cannot extrapolate from that holding, as does the majority, that the BVA can excuse its loss of a claims folder, and a decision made upon a “reconstructed” record of uncertain completeness, by explaining very carefully how it used what remained of the record to make its decision. This is not a case involving some missing records. It is a case where the entire record has been lost and was lost by the other party to the litigation. Moreover, the situation in O’Hare arose where both parties were aware that SMRs were missing and had had the opportunity to develop the record. In this ease, it is not plain that the appellant was ever even informed, prior to the Board’s decision here on appeal, that the claims folder had been lost a second time.
Thus, Dolan and O’Hare do not lead to the majority’s conclusion. Moreover, in light of Moore (Howard) v. Derwinski, 1 Vet.App. 401, 406 (1991), which found a heightened duty to assist under 38 U.S.C. § 5107(a) in a missing-records case, and Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992), which held that VA breached the duty to assist where it failed to inform the claimant of the need to submit “alternative forms of evidence” where SMRs were lost, and based on the analysis in part II.A, below, regarding the applicable burden of proof as to the well groundedness of the claim, I conclude that the BVA had an affirmative duty, upon its loss of the claims folder, either to stay proceedings and advise the appellant of the need to assist in reconstruction of the claims folder or to remand to the RO for such reconstruction. Cf. Thurber, supra.
Furthermore, the majority opinion misstates the due process concern implicated in a ease such as this when it concludes that “the BVA’s inability to obtain the missing documents is not cause for remand that, in all likelihood, would be futile anyway.” Ante at 201. The question is not and cannot be whether, on the fragmentary record remaining after the BVA lost the claims folder, it appears that the appellant would prevail upon remand; the question is whether the Court, and the Board earlier, places proper reliance — without doing more — upon the fragmentary record before it to conclude that the appellant had not, as a matter of law, presented new and material evidence. The weight of available legal authority4 strongly *205suggests that the simple fact that the BVA proceeded with an adjudication on an incomplete record without advising the appellant or giving her a chance to supplement the record creates a procedural deficiency no matter how carefully the Board explains how it arrived at its decision based on what it had before it. Thus, I would remand, pursuant to a heightened section 5107(a) duty to assist, for the BVA to allow the appellant to supply any material she can to assist in reconstructing the claims folder and, because it is not clear from the ROA what role the RO played in reconstructing the claims folder the second time, for the BVA to require the RO to assist in reconstruction.
II. Merits of the Case
A. Burden of Proof
The finality doctrine set forth in 38 U.S.C. § 7104(b) states:
[Wjhen a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.
In short, a claimant cannot hope for an adjudication and award based solely upon evidence already determined to be insufficient. But this is not to say that the finality doctrine of section 7104(b) requires that the appellant present new and material evidence, for the purposes of 38 U.S.C. § 5108, in order for the Board to proceed to consider the claim and take steps to develop the claim further if the Board decides that the claimant has submitted sufficient evidence to well ground the claim — although, of course, section 5108 requires readjudication where new and material evidence is presented (“the Secretary shall reopen ...”). See Ivey v. Derwinski, 2 Vet.App. 320, 322-23 (1992); White (Frank) v. Derwinski, 1 Vet.App. 519, 521 (1991); Ivey, 2 Vet.App. at 327-29 (Steinberg, J., concurring) (distinguishing section 7104(b)’s preclusion as to a claim being “reopened and allowed”, in the case of a final Board decision, from 38 U.S.C. § 7105(c)’s preclusion as to a claim being “reopened or allowed”, in the ease of a final RO decision) (emphasis added). New and material evidence is not required for “consideration” and further development alone, as to well-grounded claims, as long as “some new evidence” is presented that would change “the factual basis” for consideration of the claim. Ibid.
Under this construction of section 7104(b), although this is a claim to reopen, only the well-groundedness test, and not the new-and-material-evidenee test, should be applicable in determining the applicability of VA’s duty to assist the appellant. This is especially so because there is no fair way to look at the evidence for purposes of determining whether “new” evidence has been presented when we do not know if we have it all, let alone all the “old” evidence. Because the ROA is bereft of both the evidence preceding and subsequent to the last Board decision, section 7104(b) cannot preclude consideration and further development, given that it is not possible to make a rational finding that the claimant is asking that the claim be considered on the same factual basis as the Board’s 1980 denial.
The standard for what is a well-grounded claim under 38 U.S.C. § 5107(a) is the evidence that would be “sufficient to justify a belief by a fair and impartial individual that the claim” is “plausible ... or capable of substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Surely, a fair and impartial individual assessing the well groundedness of the appellant’s claim would set the well-groundedness threshold very low and conclude that the claim is plausible in view of the unique circumstances here present. See Woodson v. Brown, 87 F.3d 1304, 1307 (Fed.Cir.1996) (withholding judgment on “what effect, if any, the loss of a veteran’s records due to no fault of the veteran ... has on that veteran’s burden of proof under [38 *206U.S.C.] § 5107(a) when the lost records may be necessary to establish eligibility for benefits”), affirming in part and dismissing in part, 8 Vet.App. 352 (1995); Russo v. Brown, 9 Vet.App. 46, 50 (1996) (implicitly presuming that claim is well grounded, and proceeding to adjudication on merits, where SMRs were lost and 38 U.S.C. § 1154(b) applied).
B. 38 U.S.C. § 5103(a) Duty
I also believe that the majority opinion articulates the 38 U.S.C. § 5103(a) duty too narrowly in this ease when it concludes that the son’s testimony “is too attenuated to show availability of medical records sufficient to trigger the section 5103(a) duty.” Ante at 202. I find no such existing-medical-record requirement in Court precedent, and this is surely the worst case imaginable in which to create one. See Robinette v. Brown, 8 Vet.App. 69, 80 (1995) (on the facts of the ease, Secretary “was on notice that relevant evidence may have existed, or could have been obtained ... ”) (emphasis added); cf. Meyer v. Brown, 9 Vet.App. 425, 429-30 (1996) (where no particular statement from the doctor was expressly identified and statements by mother and siblings regarding veteran’s treatment by deceased father invoked section 5103(a) duty to notify).
It is arguable that under Robinette and Meyer the son’s remarks in this case might have sufficed to invoke a section 5103(a) duty if this were a regular case. However, this is a special ease, insofar as the entire claims folder has been lost. In such a case, VA should have a particular duty to inform the appellant of the need to supplement the missing record and that the missing record also causes her application to be “incomplete”. That is, in such a case I would find a heightened Robinette duty under section 5103(a) for the same reason the Court found in O’Hare and Moore heightened reasons-or-bases and duty-to-assist requirements in a lost-records case — that is, that this Court is unnecessarily hampered in its review of the BVA decision absent additional, heightened effort by VA to supply a more complete record.
C. 38 C.F.R. § 3.103(c)(2) Duty
The majority opinion also neglects to examine or comment upon the violation of the regulatory duty under 38 C.F.R. § 3.103(c)(2) of VA hearing officers to “suggest the submission of evidence which the claimant may have overlooked”. Even in the absence of the extraordinary circumstances evidenced in this case by the lost claims file, it seems clear to me that the § 3.103(c)(2) duty was violated here insofar as the hearing officer apparently failed to inform the claimant of the need to submit statements from the doctors in question. See Douglas v. Derwinski, 2 Vet.App. 103, 110 (1992); reaff'd on this ground, Douglas v. Derwinski, 2 Vet.App. 435, 440-41 (1992) (en banc).
III. Conclusion
This case presents a prime example of a situation where a court needs to be especially mindful of the potential consequences of its action. The application of a rule of deference based on a presumption of regularity in a lost-file case — besides being an oxymoron of sorts — may lead to less care in VA’s handling of records. Certainly, the obverse would be true; a refusal to accord such deference would be likely to produce greater VA care. It might also be asked whether, in the consideration of a lost-file case such as this, the Court should take judicial notice of the highly publicized situation, which has been the subject of many pleadings (by appellants and the Secretary) in other cases in this Court, where BVA employees willfully and deliberately destroyed large quantities of claims-file records. See, e.g., McDonald v. Brown, U.S.Vet.App. No. 95-12 (order May 30, 1996) (Court grants May 29, 1996, joint motion for remand in case where appellant’s records may have been tampered with by former BVA employees); see also BVA Chairman’s Fiscal Year 1995 Ann. Rep. 15 (relating case of two BVA attorneys who removed essential documents from appellants’ claims files in order to force remand to RO). Notwithstanding the unfortunate suggestion in the majority opinion, my position in this case is not based on mistrust of the Secretary or the BVA Chairman; I have every confidence that both have taken steps to avoid any repetition *207of record destruction.5 However, I cannot be unmindful, as the majority appears to want to be, of the potential impact of the holding in this ease, or pretend that what has happened in the real world of BVA claims adjudication did not happen and could not happen again.
This is admittedly an unusual case. That is all the more reason why the Court should avoid appearing to sanction the disappearance of vital records solely within the control of the other party. Instead, at each point where it could avoid sanctioning such a result, the majority ignores precedent or stretches it in a way that results in a finding adverse to the appellant.
For the reasons set forth in this dissenting opinion, I am unable to concur in the majority’s analysis or disposition of this case, and I respectfully dissent.
. Although it is not totally clear what those “miscellaneous other documents” were, the record on *203appeal — in addition to the documents itemized above — contains only two hearing worksheets (Record (R.) at 34-35), apparently prepared in connection with the October 1990 hearing; correspondence relating to the solicitation of an independent medical expert in 1992 (R. at 55-59); a 1994 Department of Veterans Affairs (VA) internal memo stating that the claims folder was lost (R. at 61); copies of laws and regulations (R. at 63-76); and a copy of a document (R. at 78-79) referred to as a "briefface” in the Board of Veterans' Appeals (BVA or Board) decision (R. at 4).
. See Veterans' Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) (Court has jurisdiction to review only those final BVA benefits decisions prior to which Notice of Disagreement was filed on or after November 18, 1988, as to underlying decision of VA regional office or other agency of original jurisdiction); Smith (William) v. Brown, 35 F.3d 1516, 1526 (Fed.Cir.1994) (final BVA decision not subject to review for clear and unmistakable error under 38 C.F.R. § 3.105(a)).
. To the extent that evidence was described in the prior Board decision, the Board might rely upon that description — even in the absence of the claims-file evidence — to conclude that evidence later presented was not, in fact, new. To the extent evidence not described in that prior BVA decision was later presented, in a case like this, a presumption that it was new would appear to be in order.
. See 52 Am.Jur.2D Lost and Destroyed Instruments § 33 (1970) ("As a general rule, the substitution or restoration of a judicial record or parts thereof can be made only after proper notice to the opposite party”); 4 C.J.S. Appeal and Error § 457 (1993) ("Copies of lost or destroyed records must be supplied, except where the portion lost is immaterial to a proper determination of the cause. It has been held that the loss of a portion of the record is no ground for reversal, unless the loss was due to a fault of the appellee *205----” (emphasis added); ‘‘Some authorities hold that, where material parts of the record are lost or destroyed through no fault of the appellant, the appellate court should remand the case provided appellant has exercised due diligence and is not guilty of laches”); see also Fowler v. Califano, 596 F.2d 600, 604 (3d Cir.1979) (remanding social securily claim where record of appellant's prior claim, through no fault of her own, had been lost and appellant provided evidence to reconstruct the record; the court was "inclined to agree” that it is "unconscionable for the Administration to take a position that in effect permits it to profit by its own errors”).
. I am no more expressing mistrust of VA officials than was the Court in Smith (George) v. Brown, when it refused an inteipretation of 38 U.S.C. § 7103 suggested by the Secretary that would have allowed the BVA Chairman to "defeat the right to judicial review at a critical juncture in a case by ordering reconsideration of a prior decision which is beyond the reach of that right”, Smith v. Brown, 8 Vet.App. 546, 552 (1996) (en banc); or was the Court in MacWhorter v. Derwinski, when it found the Secretary’s motion for summary disposition “inappropriate ... when it does not address all issues presented and all forms of relief potentially implicated”, MacWhorter v. Derwinski, 2 Vet.App. 655, 657 (1992); see also id., 2 Vet.App. 133, 135 (1992); or was the Court (the same judges as are here empaneled) in Murillo v. Brown, when it refused to give "the BVA a license, without the Secretary’s having to adhere to the requirements of appropriate public notice and opportunity to comment ... to prevent successive filings of [reconsideration motions], or to force a claimant to forgo appeal to this Court if he wished to seek BVA reconsideration again, by delaying action on a reconsideration motion until the applicable 120-day judicial appeal period had run as to the underlying BVA decision”, Murillo v. Brown, 10 Vet.App. 108, 110 (1997). What I am doing is seeking to ensure that VA adheres to the procedural protections established by law and regulation.