Petition for Writ of Certiorari — Cummings v. West, 118 S. Ct. 2373 (1998) (No. 97-1884)

supreme Court, u.S.

FILED

971884 NAY 2 219%

-OFFIGE OTHE CLERK

In The

Supreme Court of the United States

October Term, 1997

¢

HELEN CUMMINGS,

Petitioner,

TOGO D. WEST, JR.,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

———_—_—_—§¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

x)

PETITION FOR WRIT OF CERTIORARI

¢

KENNETH M. CARPENTER

Counsel of Record

CARPENTER, CHARTERED

1525 S. Topeka Blvd.

P.O. Box 2099

Topeka, KS 66601-2099

(785) 357-5251

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

According to the relevant statute, a claimant who is

seeking veterans’ benefits from the government and

whose claim is denied by the Board of Veterans’ Appeals

must be given notice of the procedure for obtaining

review of the denial. The question presented is whether

that notice is inadequate when it fails to inform a claim-

ant of certain time limits relating to her right to appellate

review; fails to inform her that she may be entitled to pro

bono representation before the court; and fails to inform

her that she may be entitled to have the government pay

her attorney fees.

TABLE OF CON’

QUESTION PRESENTED

TABLE OF AUTHORITIES.....

AJP EICSRIINGD SEOAIUY oo ony oh eee ss

STATEMENT OF JURISDICTION

PROVISIONS INVOLVED.......

STATEMENT OF THE CASE.

REASONS FOR GRANTING THE

6S. BRE. & Ee Sean

TENTS

ill

TABLE OF AUTHORITIES

Page

CASES

Alabama Power Co. v. Davis, 431 U.S. 581 (1976)...... 14

Ashley v. Derwinski, 2 Vet. App. 307 (1992).......... 11

Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997)}....... 15

Belarmino v. Derwinski, 931 F.2d 1543 (Fed. Cir.

MMe em rae ry ge Ue ae Foy ge ay ple Geek ia 1]

Brown v. Gardner, 513 U.S. 115 (1994)........... 13

Clark v. Schweiker, 652 F.2d 399 (5th Cir. 1981)....... 13

Coffy v. Republic Steel Corp., 447 U.S. 191 (1980) ..... 14

Cook v. Brown, 68 F.3d 447 (Fed. Cir. 1995).......... 11

Crandon v. United States, 494 U.S. 152 (1990)......... 12

Cummings v. Brown, No. 95-1058, slip op. at 2 (Vet.

Ape. fume. 26, 199G) ». cee cece ence seees 7, 10; 16

Fishgold v. Sullivan Drydock & Repair Corp., et al.,

A Gey hea ee Kuh as oi 14

Grivois v. Brown, 6 Vet. App. 136 (1994)............. 1]

ICC v. Brotherhood of Locomotive Engineers, 482 U.S.

CT i abe Saky ee Seka eka hie basins Oe bee AA )

King v. St. Vincent's Hosp., 502 U.S. 215 (1994)....... 13

Kokoszka v. Belford, 417 U.S. 642 (1974) .............. 12

Pittman v. Brown, 9 Vet. App. 60 (1996) .............. 8

Rosler v. Derwinski, 1 Vet. App. 241 (1991)...7, 9, 10, 14

Smith v. Schweiker, 677 F.3d 826 (11th Cir. 1982)..... 13

TABLE OF AUTHORITIES — Continued

Thompson v. Sullivan, 933 F.2d 581 (7th Cir. 1991)....13

STATUTES

Equal Access to Justice Act (“EAJA”), 28 U.S.C.

S £022 (ises & Supp. Ut - 1997)... ..0. soc s! 8

PO TS SS is Aes sad es

RS Oe A al a ee sa

Ua Bi ee a eee 5

MUS 8 iG) 3. PE eo EEL

meet 6 ee ic es ee

Oe ARe 6 Meta. ie .6.7,6,32.u

LG i a EE. ok waa e owe keisha brea cee etal

S.C. § 7292 5

J.S.C. § 7292(a) 3

OS WA ea a ee eee 13

PR ON os ee a ae 3

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BR Cae Geo. 7) area ine aC ie gy Cen erst oNhr 3

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CPe Ce oo ee 4, 13

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OTHER AUTHORITIES

134 Cong. Rec. 516647 (daily ed. Oct. 18, 1988) ..... 10

134 Cong. Rec. 516650 (daily ed. Oct. 18, 1988) ..10, 11

H.R. 102-1066, reprinted in 1992 U.S.C.C.A.N. 3921.... 11

Veterans’ Judicial Review Act of 1988 (“VJRA”),

Pub. L. No. 100-687, reprinted in 1988

HES ate SAS OEE. Ee OL eee rere nar ieee re pee wes 5

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of cer-

tiorari to review this case decided below by the United

States Court of Appeals fer the Federal Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals for the Federal

Circuit is at 136 F.3d 1468 (Fed.Cir. 1998) and is reprinted

in the Appendix (“App.”) at App. 1. The order of the

Court of Veterans Appeals dismissing the case for lack of

jurisdiction is an unpublished disposition, No. 95-1058

(Vet. App. June 26, 1996) and is reprinted at App. 2.

ee $ nema nena NSERC

STATEMENT OF JURISDICTION

The Court has jurisdiction to review this petition

with respect to this case pursuant to 28 U.S.C. § 1254(1).

The judgment of the Federal Circuit was entered on Feb-

ruary 24, 1998.

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PROVISIONS INVOLVED

28 U.S.C. § 2412. Costs and fees.

(d)(1)(A) Except as otherwise provided by

statute, a court shall award to a prevailing

party other than United States fees and

other expenses . . . incurred by that party in

any civil action . . . including proceedings

No

for judicial review of agency action, brought

by or against the United States in any court

having jurisdiction of that action, unless the

court finds that the position of the United

States was substantially justified or that

special circumstances make an award

unjust.

38 U.S.C. § 1310. Deaths entitling survivors to

dependency and indemnity compensation.

(a) When any veteran dies after December

31, 1956, from a service-connected or com-

pensable disability, the Secretary shall pay

dependency and indemnity compensation

to such veteran’s surviving spouse, chil-

dren, and parents. The standards and crite-

ria for determining whether or not a

disability is service-connected shall be those

applicable under chapter 11 of this title.

38 U.S.C. § 5104. Decisions and notices of deci-

SIONS.

(a) In the case of a decision by the Secre-

tary under section 511 of this title affecting

the provision of benefits to a claimant, the

Secretary shall, on a timely basis, provide to

the claimant (and to the claimant’s repre

sentative) notice of such decision. The

notice shall include an explanation of the

procedure for obtaining review of the deci-

Sion.

38 U.S.C. § 7263. Representation of parties; fee

agreements.

(a) The Secretary shall be represented

before the Court [of Veterans Appeals] by

the General Counsel of the Department.

38 U.S.C. § 7292. Review by the United States

Court of Appeals for the Federal Circuit

(a) After a decision of the United States

Court of Veterans Appeals is entered in a

case, any party to the case may obtain a

review of the decision with respect to the

validity of any statute or regulation . . . or

any interpretation thereof . .. that was

relied on by the Court in making the deci-

sion.

(c) The United States Court of Appeals for

the Federal Circuit shall have exclusive

jurisdiction to review and decide any chal-

lenge to the validity of any statute or regu-

lation or any interpretation thereof brought

under this section, and to interpret constitu-

tional provisions, to the extent presented

and necessary to a decision.

42 U.S.C. § 406. Representation of claimants

before Commissioner [of Social Security].

(a) Recognition of representatives; fees for

representation before Commissioner.

(1) The Commissioner of Social Secu-

rity may prescribe rules and regulations

governing recognition of agents or

other persons, other than attorneys as

hereinafter provided, representing

claimants before the Commissioner of

Social Security, and may require of such

agents or other persons, before being

recognized as representatives of claim-

ants that they shall show that they are

of good character and in good repute,

possessed of the necessary qualifica-

tions to enable them to render such

claimants valuable service, and other-

wise competent to advise and assist

such claimants in the presentation of

their cases. An attorney in good stand-

ing who is admitted to practice before

the highest court of the State, Territory,

District, insular possession of his resi-

dence or before the Supreme Court of

the United States or the inferior Federal

courts, shall be entitled to represent

claimants before the Commissioner of

Social Security.

20 C.F.R. § 404.1700. Introduction.

You may appoint someone to represent you

in any of your dealings with [the Social

Security Administration].

38 C.F.R. § 3.103(a). Procedural due process and

appellate rights. Statement of policy.

Proceedings before VA are ex parte in

nature, and it is the obligation of VA to

assist a claimant in developing the facts per-

tinent to the claim and to render a decision

which grants every benefit that can be sup-

ported in law while protecting the interests

of the Government. The provisions of this

section apply to all claims for benefits and

relief, and decisions thereon, within the

purview of this part 3.

S

ul

STATEMENT OF THE CASE

The surviving spouse of a deceased veteran whose

death was related to service is entitled to benefits from

the government. 38 U.S.C. § 1310 (1998); see generally 38

U.S.C. §§ 1301 et seq. A surviving spouse seeking such

benefits must file an original claim with a Department of

Veterans Affairs (“VA”) Regional Office. If the Regional

Office denies her claim, she may appeal to the Board of

Veterans’ Appeals (“BVA”), which is a branch of the VA.

Like Regional Office proceedings, BVA proceedings are

informal and ex parte in nature. In fact, until 1988, BVA

decisions were not subject to judicial review.

However, in 1988, Congress created the United States

Court of Veterans Appeals (“CVA”), an Article | court

with jurisdiction limited to appeals of veterans’ benefits

claims. See Veterans’ Judicial Review Act of 1988

(“VJRA”), Pub. L. No. 100-687, reprinted in 1988

U.S.C.C.A.N. 5795. The CVA is independent of the

Department of Veterans Affairs. The United States Court

of Appeals for the Federal Circuit has direct and exclu-

sive appellate jurisdiction to review the CVA’s conclu-

sions of law, including its interpretations of regulations

or statutes. See 38 U.S.C. § 7292.

Helen Cummings is the surviving spouse of Charles

T. Cummings, who served in the military on active duty

from July 1940 to August 1945. Mr. Cummings died in

March 1992, and Mrs. Cummings subsequently applied to

the VA for the benefits due a surviving spouse of a

deceased veteran whose death was related to service. The

regional office denied her claim, finding that there was no

connection between her husband’s death and his time in

service. Mrs. Cummings appealed to the BVA, and in a

decision dated February 28, 1995, the BVA denied her

claim.

According to the statutory scheme, when the Secre-

tary of Veterans Affairs (“Secretary”) issues notice of a

decision, “[t]he notice shall include an explanation of the

procedure for obtaining review of the decision.” 38 U.S.C.

§ 5104(a). In an attempt to satisfy this statute, a notice of

appellate rights accompanied the February 28, 1995,

notice of denial. See Appendix 3. The notice of appellate

rights stated in pertinent part:

(1) You may file a motion for reconsideration

of this BVA decision. .. .

(2) You may have the right to appeal this deci-

sion to the United States Court of Veterans

Appeals (the Court). .. . A Notice of Appeal

must be filed with the Court within 120 days

from the date of mailing of the notice of the BVA

decision. .. . You may obtain information about

the form of the Notice of Appeal, the methods

by which you may file your Notice of Appeal

with the Court, the amount of any filing fee, and

other matters covered by the Court’s rules

directly from the Court... .

An accredited representative of a recognized

service organization, or an individual whom

you choose to represent you in your claim

before VA and on appeal to the BVA, may repre-

sent you without charge. An attorney-at-law or

an accredited agent may also represent you. An

attorney or accredited agent may charge you a

fee to represent you before VA, including the

BVA, with respect to a claim under the following

circumstances: . . . You may ask the Court to

+

/

give you information on representation before

the Court.

Mrs. Cummings chose to move for reconsideration.

Her motion was received at the BVA 127 days after the

February 28 decision. The Board denied her motion for

reconsideration on August 2, 1995. In the notice of appel-

late rights that accompanied the August 2, 1995, denial

letter, the Board explained that

li]f you filed your motion for reconsideration

within 120 days of the date of mailing of the

Board’s decision, you now have an additional

120 days from the date of mailing of the letter

denying your motion for reconsideration, which

accompanies this notice, within which to file a

Notice of Appeal with the Court. Rosler v. Der-

winski, 1 Vet.App. 241 (1991).

On October 24, 1995, Mrs. Cummings filed a Notice

of Appeal at the U.S. Court of Veterans Appeals. She

argued, inter alia, that the February 1995 notice of appel-

late rights from the BVA did not meet the requirements of

§ 5104(a), and that thus the period for filing a timely

Notice of Appeal was tolled.

The Court dismissed the appeal for lack of jurisdic-

tion, since neither Mrs. Cummings’ motion for recon-

sideration nor her Notice of Appeal was filed within 120

days of the initial BVA decision. In its order, the Court

found that the BVA had satisfied the requirement of

§ 5104(a) by providing “a general outline of what steps

must be taken in order to appeal the BVA decision” to the

Court of Veterans Appeals. Cummings v. Brown, No.

95-1058, slip op. at 2 (Vet.App. June 26, 1996), quoting

Pittman v. Brown, 9 Vet.App. 60, 65 (1996). Mrs. Cum-

mings appealed this dismissal to the Federal Circuit,

which found that the notice of appellate rights met the

requirements of § 5104(a).

9

REASONS FOR GRANTING THE WRIT

The notice of appellate rights which the Secretary

provided to Mrs. Cummings is the same notice of appel-

late rights provided all veterans who receive adverse

decisions from the BVA. Because this notice is insuffi-

ciently detailed, it impedes the right of veterans to judi-

cial review. To provide some indication of the magnitude

of this problem, a total of 15,872 adverse BVA decisions

were issued in fiscal year 1997. Report [to Congress] of

the Chairman, Board of Veterans’ Appeals, Fiscal Year

1997, at 23.

The statutory scheme mandates that “[t]he notice [of

a decision of the Secretary] shall include an explanation

of the procedure for obtaining review of the decision.” 38

U.S.C. § 5104(a). The notice of appellate rights provided

by the Secretary with BVA denials is insufficient under

§ 5104(a) because it does not explain the Rosler tolling

principle; does not advise a claimant that she may hire an

attorney to represent her at the Court of Veterans Appeals

at no charge to her; and does not advise her that if she

does pay for the services of an attorney to represent her

at the Court of Veterans Appeals, the VA will pay her

attorney fees if the conditions specified in the Equal

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (1994 &

Supp. Ill 1997) are met.

First, the notice of appellate rights provided after an

initial BVA decision makes no mention of the fact that the

timing of a request for reconsideration is intertwined

with eligibility for judicial review. Specifically, as

explained by the CVA decision in Rosler v. Derwinski,

supra, the filing of a request for reconsideration tolls the

time to file a notice of appeal. Thus, if the claimant files

her request for reconsideration within 120 days of the

BVA decision, she has 120 days from the denial of recon-

sideration to file her notice of appeal to the CVA.

The Court of Veterans Appeals based its Rosler deci-

sion on this Court’s holding in ICC v. Brotherhood of

Locomotive Engineers, 482 U.S. 270 (1987), that a timely

petition for administrative reconsideration tolls the

period for judicial review of the original administrative

order. Rosler at 244. The CVA also found that statutes

require that “when [the BVA] denies a motion for recon-

sideration [it must] advise the claimant of the new 120-

day judicial appeal period that commences, as to the

underlying substantive BVA decision, on the date of the

mailing of the BVA’s notice of denial of the motion for

reconsideration.” Rosler at 249. Obviously, then the CVA

considered the Rosler tolling principle an important piece

of information for claimants to have; otherwise, it would

not have required it on the notice of appellate rights that

accompanies the denial of a request for reconsideration.

But the CVA did not go far enough: claimants should

have this information before, not after, they file a request

for reconsideration.

In the case at bar, Mrs. Cummings filed her request

for reconsideration 127 days after the BVA’s initial denial,

a mere week too late to preserve her right for judicial

10

review. Nothing prevented her from filing a week earlier,

but given the information available to her, she had no

reason to think that that week would make any difference

at all. Timely notice of the Rosler tolling principle could

have allowed Mrs. Cummings access to judicial review.

Indeed, in its decision, the Federal Circuit expressed con-

cern about the “confusion” that the failure to explain the

Rosler principle causes claimants, and suggested that to

“allay such confusion,” the Secretary could explain Rosler

in the initial notice of appellate rights. Moreover, the

Secretary has recently added information about the Rosler

tolling principle to its notice of appellate rights provided

with BVA denials. See App. 4; cf. App. 3. The petitioner

maintains that such a notice was always required and

that Mrs. Cummings should not suffer from the Secre-

tary’s delay in including this crucial information. Cum-

mings, 136 F.3d at 1474.

Second, the notice of appellate rights impedes a vet-

eran’s access to legal representation. Such representation

is a crucial element of judicial review. When it passed the

VJRA, Congress eliminated a previous limit on attorneys’

fees in the VA system, recognizing that attorney represen-

tation of veterans was necessary for effective judicial

review. See 134 Cong. Rec. $16647 (daily ed. Oct. 18, 1988)

(statement of Sen. Cranston) (“[I]f we are going to give

veterans real access to judicial review we must give them

good, qualified attorneys.”); see also 134 Cong. Rec.

S16650 (daily ed. Oct. 18, 1988) (statement of Sen.

Cranston) (attorneys’ fees provision will “ensure that

those veterans or other claimants who would be able to

bring their cases to the new court under the compromise

agreement will be able to do so with the assistance of

1]

paid counsel”). The Federal Circuit has acknowledged

Congress’s intent, stating that Congress intended to

encourage petitioners to the Court of Veterans Appeals to

seek attorney representation. Belarmino v. Derwinski, 931

F.2d 1543, 1544 (Fed.Cir. 1991) (citing 134 Cong. Rec.

S16650). Similarly, when it amended the EAJA to apply to

cases brought before the Court of Veterans Appeals, Con-

gress expressed concern over the number of cases

brought pro se and noted that veterans should not face

financial deterrents to defending themselves against

unjustified action. See H.R. 102-1066, reprinted in 1992

U.S.C.C.A.N. 3921, 3934. See also Cook v. Brown, 68 F.3d

447, 453 (Fed.Cir. 1995) (discussing legislative history of

the EAJA). Indeed, Congress has been so concerned about

the high pro se rate before the CVA that it funds a

program to secure pro bono publico representation for

veterans, a program to which the CVA has expressed its

gratitude. Grivois v. Brown, 6 Vet.App. 136, 138 (1994).

Congress had good reason for encouraging the par-

ticipation of attorneys in proceedings before the Court of

Veterans Appeals. As the CVA has stated, its proceedings

are adversarial in nature. See Ashley v. Derwinski, 2

Vet.App. 307, 312 (1992). In these adversarial proceed-

ings, the Secretary is represented by competent, highly

trained attorneys. See 38 U.S.C. § 7263(a). This adversarial

atmosphere represents a dramatic change for the claim-

ant, who benefits during the administrative proceedings

from ex parte treatment as well as the VA’s assistance in

the development of facts pertinent to the claim. 38 C.F.R.

§ 3.103(a) (1997). It is critical that the claimant be

informed of that change from a paternalistic, nonadver-

sarial system to the adversarial judicial system in which

a

a

highly trained attorneys will seek every available legal

basis to defeat the veteran’s claim before the Court.

To construe a statute, a court looks not only to the

particular statutory language but also to the design of the

statute as a whole, as well as the statute’s object and

policy and the objects and policies of the overall law on

the matter. Crandon v. United States, 494 U.S. 152, 157

(1990); Kokoszka v. Belford, 417 U.S. 642, 650 (1974). It is

clear from the legislative history of the VJRA and the

EAJA, as well as the funding of the pro bono program at

the CVA, that Congress is committed to a goal of involv-

ing attorneys in proceedings before the Court of Veterans

Appeals. If the Federal Circuit’s holding below is allowed

to stand, Congress's intent to effect attorney representa-

tion at the Court of Veterans Appeals will be impeded.

Thus § 5104(a) should be construed to require that a

notice of appellate rights provided by the Secretary

includes, first, the possible availability of pro bono repre-

sentation of the veteran before the Court of Veterans

Appeals, and, second, a description of the claimant’s

right to payment of the attorney’s fees by the Department

of Veterans Affairs under the EAJA.

An examination of the notification requirements in

Social Security hearings also suggests that the notice of

appellate rights provided by the BVA falls short when it

fails to advise the claimant of his right to representation

before the CVA and fails to advise him that he may be

entitled to have his attorney fees paid by the VA. Social

Security benefits are remedial benefits and thus similar to

veterans’ benefits. See, e.g., Walters v. Nat. Assn. of Radia-

tion Survivors, 473 U.S. 305, 333 (1985) (“We think that the

benefits at stake in VA proceedings, which are not

13

granted on the basis of need, are more akin to . . . Social

Security benefits . . . than they are to . . . welfare pay-

ments”). Social Security claimants have a right to counsel

at administrative hearings. 42 U.S.C. § 406 (1998); 20

C.F.R. § 404.1700 (1997). Circuit courts have consistently

held that “in order for this regulation [conferring a right

to counsel] to be effective, there is an obligation on the

part of the Secretary to notify the claimant of his or her

right to be represented at the hearing before the adminis-

trative law judge.” Clark v. Schweiker, 652 F.2d 399, 403

(5th Cir. 1981). Such motice must also describe the limita-

tions placed on the amount of the attorney’s fee. Id. See

also Smith v. Schweiker, 677 F.3d 826 (11th Cir. 1982);

Thompson v. Sullivan, 933 F.2d 581 (7th Cir. 1991).

Claimants in administrative Social Security proceed-

ings, then, have the right to be iffformed that they have

the right to counsel and that there is a possibility that

they may be entitled to a lawyer even if they think they

cannot afford one. If such notice is mandatory in the

“non-adversarial and informal” Social Security proceed-

ings [Smith v. Schweiker, supra, at 830], such notice should

certainly be afforded to veterans seeking benefits in the

adversarial atmosphere of a federal court. Smith v. Schwe-

iker, supra, at 830.

The Federal Circuit’s interpretation of § 5104 is espe-

cially incongruous given the fact that this Court has

repeatedly held that special consideration is to be

accorded veterans of the United States Armed Forces.

Most recently, the Court stated that when interpreting

statutes, “the rule [is] that interpretive doubt is to be

resolved in the veteran’s favor.” Brown v. Gardner, 513

U.S. 115, 117-118 (1994). See King v. St. Vincent's Hosp., 502

14

U.S. 215, 220-221, n. 9 (1994). See also Fishgold v. Sullivan

Drydock & Repair Corp., et al., 328 U.S. 275, 285 (1946)

(stating that veterans benefits legislation “is to be liber-

ally construed for the benefit of those who left private life

to serve their country in its hour of great need”); Coffy v.

Republic Steel Corp., 447 U.S. 191, 192 (1980); Alabama

Power Co. v. Davis, 431 U.S. 581, 584-585 (1976). Given

these principles of statutory interpretation, the “explana-

tion of the procedure for obtaining review of [a] decision”

mandated in 38 U.S.C. § 5104(a) should be construed

liberally; the narrow interpretation of the Federal Circuit

should not be allowed to stand. The broader interpreta-

tion should require that the notice include explanations

of Rosler, notice of the potential availability of pro bono

representation and of possible eligibility for EAJA fees.

The petitioner does not ask the Secretary to provide

each claimant with a “book[] .. . on appellate pro-

cedure,” as the Federal Circuit has suggested. Cummings,

136 F.3d at 1473. Instead, the petitioner simply suggests

that 38 U.S.C. § 5104, as well as concern for veterans and

their right to judicial review, requires that the Secretary

explain thoroughly what a veteran must do to protect his

right to judicial review as well as how a veteran may

receive effective judicial review. As a member of the

Federal Circuit has written,

[W]e must keep in mind the purpose behind the

creation and maintenance of our Veterans sys-

tem. As aptly stated by Abraham Lincoln and

inscribed on the wall of the Department of Vet-

erans[ ] Affairs building, the overriding purpose

of the Veterans’ laws is “to care for him who

shall have borne the battle and for his widow

and his orphan.” This purpose pervades the

15

governing law as well as the legislative history

of the VJRA. Therefore, when construing ambi-

guities in the Act, we should err, if we err at all,

on the side of protecting a veteran’s right to the

judicial review Congress has mandated.

Barrera v. Gober, 122 F.3d 1030, 1040 (Fed. Cir. 1997) (Pla-

ger, J., concurring).

CONCLUSION

For the foregoing reasons, the writ of certiorari

should be granted.

KENNETH M. CARPENTER #08012

Counsel of Record

CARPENTER, CHARTERED

1525 S. Topeka Boulevard

P.O. Box 2099

Topeka, KS 66601-2099

(785) 357-5251

(785) 357-4902 — Fax

Attorney for Petitioner

App. 1

Helen CUMMINGS, Claimant-Appellant,

V.

Togo D. WEST, Jr., Acting Secretary of

Veterans Affairs, Respondent-Appellee.

No. 97-7004.

United States Court of Appeals,

Federal Circuit.

Feb. 24, 1998.

Jeffrey James Wood, York, PA, argued for claimant-

appellant.

Luke Levasseur, Attorney, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice, Wash-

ington, DC, argued for respondent-appellee. On brief

were Frank W. Hunger, Assistant Attorney General,

David M. Cohen, Director, Joseph A. Kijewski, Assistant

Director. Of counsel on brief were Donald E. Zeglin,

Deputy Assistant General Counsel, David J. Barrans, Staff

Attorney, Department of Veterans Affairs, Washington,

DC.

Kenneth M. Carpenter, Carpenter, Chartered, Topeka,

KS, for amicus curiae National Organization of Veteran’s

Advocates.

Before LOURIE, Circuit Judge, and ARCHER, Senior

Circuit Judge,* and CLEVENGER, Circuit Judge.

LOURIE, Circuit Judge.

* Senior Circuit Judge Glenn L. Archer, Jr. vacated the position

of Chief Judge on December 24, 1997.

App. 2

Helen Cummings appeals from the decision of the

United States Court of Veterans Appeals dismissing her

appeal for lack of jurisdiction. See Cummings v. Brown, No.

95-1058, 1996 WL 366406 (Vet.App. June 26, 1996).

Because Cummings did not timely appeal to the Court of

Veterans Appeals, we affirm.

BACKGROUND

In 1992, Cummings, the surviving spouse of a

deceased veteran, applied to the Department of Veterans

Affairs (VA) seeking dependency and indemnity compen-

sation. The VA’s Montgomery, Alabama Regional Office

denied her claim, finding no service connection between

her husband’s death and his military service. Cummings

contested that decision by filing a Notice of Disagreement

to the Board of Veterans’ Appeals. See 38 U.S.C. § 7105(a)

(1994). On February 28, 1995, after the Board dismissed

Cummings’ claim, the VA mailed copies of the Board’s

decision to Cummings and to her designated legal repre-

sentative, the National Appeals Office of the Disabled

American Veterans. See 38 U.S.C. §§ 5104, 7104(e) (1994).

Along with each copy of the decision, the VA sent a form

entitled “Board of Veterans’ Appeals Notice” (“Appeals

Notice”), see 38 U.S.C. § 5104(a) (“The notice shall include

an explanation of the procedure for obtaining review of

the [Board’s] decision.”), which stated in relevant part:

If the decision is not favorable to you:

(1) You may file a motion for reconsideration

of this BVA decision at the following

address: ... Your motion may be in the form of

a letter. It should state clearly and specifically

App. 3

which issue or issues you want the BVA to

reconsider and the specific reasons why the BVA

should reconsider the issue or issues.

(2) You may have the right to appeal this deci-

sion to the United States Court of Veterans

Appeals (the Court). You may appeal to the

Court a final decision of the BVA that follows a

notice of disagreement filed on or after Novem-

ber 18, 1988. A Notice of Appeal must be filed

with the Court within 120 days from the date of

mailing of the notice of the BVA decision. The

date of mailing is the date that appears on the

face of the BVA decision. The Court’s address

is:. .. . You may obtain information about the

form of the Notice of Appeal, the methods by

which you may file your Notice of Appeal with

the Court, the amount of any filing fee, and

other matters covered by the Court’s rules

directly from the Court... .

In addition to these rights, you may also reopen

your claim by submitting new and material evi-

dence to the Department of Veterans Affairs

(VA) office where your claim originated. VA

may not consider another claim on the same

factual basis. Reopening your claim will not

affect this BVA decision, but your reopened

claim may be granted on the basis of new and

material evidence which supports your claim.

An accredited representative of a recognized

service organization, or an individual whom

you choose to represent you in your claim

before VA and on appeal to the BVA, may repre-

sent you without charge. An attorney-at-law or

an accredited agent may also represent you. An

attorney or accredited agent may charge you a

fee to represent you before VA, including the

App. 4

BVA, with respect to a claim under the following

circumstances:. . . . You may ask the Court to

give you information on representation before

the Court.

On July 5, one hundred and twenty-seven days after

the Board’s decision and the Appeals Notice were mailed,

Cummings filed a motion for reconsideration by the

Board. See 38 C.F.R. § 20.1000 (1996) (“Reconsideration of

an appellate decision may be accorded at any time by the

Board . . . (a) Upon allegation of obvious error of fact or

law; (b) Upon discovery of new and material evi-

dence... ; or (c) Upon allegation that an allowance of

benefits by the Board has been materially influenced by

false or fraudulent evidence submitted by or on behalf of

the appellant.”). On August 2, the Board denied Cum-

mings’ motion on its merits. Then, on October 24, eighty-

four days after her reconsideration motion was denied,

Cummings filed a notice of appeal to the Court of Vet-

erans Appeals seeking review of the Board’s decision

denying her claim.

The court dismissed Cummings’ appeal for lack of

jurisdiction because neither her motion for reconsidera-

tion nor her notice of appeal were filed within 120 days of

the Board’s decision. In response to Cummings’ argu-

ments contesting the adequacy of the Appeals Notice, the

court concluded that the VA had satisfied section 5104(a)

by mailing an Appeals Notice which provided “a general

outline of what steps must be taken in order to appeal the

BVA decision to this Court.” Cummings appeals to this

court, again arguing that the Appeals Notice did not meet

the requirements of section 5104(a). She reasons that

because the Secretary provided her with an inadequate

App. 5

notice of her appeal rights, the 120-day appeal period was

tolled, i.e., suspended. She therefore asserts that her

appeal was not untimely.

DISCUSSION

Our jurisdiction to review a decision of the Court of

Veterans Appeals is limited by statute; it does not extend

to challenges either to factual determinations or to the

application of the law to the facts of a particular case. See

38 U.S.C. § 7292(d)(2) (1994). However, it does extend to

decisions regarding “the validity of any statute or regula-

tion... or any interpretation thereof (other than a deter-

mination as to a factual matter) that was relied on by the

Court in making the decision.” Id. § 7292(a); see also id.

§ 7292(c), (d) (vesting jurisdiction over review of Court of

Veterans Appeals decisions in this court and setting cer-

tain standards for- review); Fugere v. Derwinski, 972 F.2d

331, 334 (Fed.Cir.1992). Since this appeal presents a ques-

tion of statutory interpretation, viz., the requirements of a

notice imposed by section 5104(a), it is clear that we have

jurisdiction to decide this issue. See Collette v. Brown, 82

F.3d 389, 392 (Fed.Cir.1996). We review the legal question

of statutory interpretation de novo. See Jones v. Brown, 41

F.3d 634, 637 (Fed.Cir.1994).

Cummings asserts that the court erred in determin-

ing that the Appeals Notice met the requirements of

section 5104(a). Relying on this premise, she contends

that the court should have considered the 120-day appeal

period to have been tolled. She first argues that the notice

was inadequate because it did not explain the Court of

Veterans Appeals’ holding in Rosler v. Derwinski, 1

App. 6

Vet.App. 241 (1991). Specifically, relying on the legislative

history of the Veterans’ Benefits Amendments of 1989,

Pub.L. No. 101-237, 103 Stat. 2062 and the Veterans’ Judi-

cial Review Act of 1988, Pub.L. No. 100-687, 102 Stat.

4105, she argues that section 5104(a) requires the Secre-

tary to provide “detailed notice” of the court’s holding in

Rosler. She also notes that the Secretary did provide such

detailed notice of the court’s holding in Rosler, but only

after her motion for reconsideration had been denied.

In Rosler, the Court of Veterans Appeals correctly

held that its jurisdiction extends only to appeals filed

within 120 days of a final Board decision. See Rosler, 1

Vet.App. at 242; see also 38 U.S.C. § 7266(a)(1) (1994 &

Supp. Il 1996) (“In order to obtain review by the Court of

Veterans Appeals of a final decision of the Board of

Veterans’ Appeals, a person adversely affected by that

action must file a notice of appeal with the Court. Any

such notice must be filed within 120 days after the date

on which notice of the decision is mailed pursuant to [38

U.S.C. § }] 7104(e).”). The court then observed that the

finality of a Board decision may be abated by recon-

sideration, and that there is no deadline for filing a

request for reconsideration. See Rosler, 1 Vet.App. at

244-45 (citing ICC v. Brotherhood of Locomotive Engineers,

482 U.S. 270, 284, 107 S.Ct. 2360, 2368-69, 96 L.Ed.2d 222

(1987)); see also 38 U.S.C. § 7103(a) (1994 & Supp. II 1996)

(“The decision of the section [of the Board] is final unless

the Chairman orders reconsideration of the case.”); 37

C.F.R. § 20.1000(b) (1997) (“Reconsideration . . . may be

accorded at any time. ... ”). Accordingly, the court

concluded that it had jurisdiction over an appeal in which

a claimant filed a motion for reconsideration by the BVA

App. 7

during the 120-day appeal period, if she also filed a

notice of appeal to the court within 120 days of the denial!

of the motion for reconsideration or, if the motion for

reconsideration was granted, within 120 days of the

reconsidered BVA decision. See Rosler, 1 Vet.App. at 249.1

Thus, stated succinctly, Cummings’ first argument is that

the Appeals Notice was inadequate because it failed to

explain that she could have temporarily preserved the

jurisdiction of the Court of Veterans Appeals by filing her

motion for reconsideration within the 120-day appeal

period.

Cummings also argues, again relying on legislative

history, that section 5104(a) requires the Secretary to

notify a claimant that she may be represented by an

attorney before the Court of Veterans Appeals and that, if

the conditions specified in the Equal Access to Justice

Act, 28 U.S.C. § 2412 (1994 & Supp. III 1997), are met, she

may be entitled to have the VA pay her attorney fees.?

In response, the Secretary of Veterans Affairs argues

that the Appeals Notice satisfied section 5104(a) by indi-

cating to Cummings the steps necessary to initiate review,

Because neither party challenges the Court of Veterans

Appeals’ holding in Rosler, we accept, without deciding, that the

court had jurisdiction in that case.

* As amicus curiae, the National Organization of Veterans

Advocates makes the same arguments, but also appears to

argue that we should extend the filing period in this case under

the doctrine of equitable tolling. We reject this argument.

Neither this court nor the Court of Veterans Appeals has the

authority to extend the section 7266(a) appeal period. See Butler

Derwinsk1, 960 F.2d 139, 140-41 (Fed.Cir.1992)

App. 8

informing her of the sole relevant time limit, and instruct-

ing her to contact the court if she had further questions

regarding its procedures. The Secretary further contends

that neither section 5104(a) nor the relevant legislative

history requires him to notify claimants of further details

concerning legal representation before the court. We

agree with the Secretary that section 5104(a) requires

nothing more than the Appeals Notice provides, viz., a

general outline of the available procedures for obtaining

review of a final Board decision. Accordingly, the 120-day

appeal period was not tolled and the Court of Veterans

Appeals correctly determined that it lacked jurisdiction to

hear Cummings’ appeal.

Interpretation of a statute requires a court to give

effect to the intent of Congress as manifested in the

express statutory language and structure. See Ingersoll-

Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478,

482, 112 L.Ed.2d 474 (1990) (“To discern Congress’ intent

we examine the explicit statutory language and the struc-

ture and purpose of the statute.”). Thus, our duty is “to

find that interpretation which can most fairly be said to

be imbedded in the statute, in the sense of being most

harmonious with its scheme and with the general pur-

poses that Congress manifested.” NLRB v. Lion Oil Co.,

352 U.S. 282, 297, 77 S.Ct. 330, 338, 1 L.Ed.2d 331 (1957).

In discharging that duty, “we look not only to the particu-

lar statutory language, but to the design of the statute as

a whole and to its object and policy.” Crandon v. United

States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d

132 (1990).

App. 9

Section 5104(a) provides that “the Secretary shall, on

a timely basis, provide to the claimant (and to the claim-

ant’s representative) notice of [the Board’s] decision. The

notice shall include an explanation of the procedure for

obtaining review of the decision.” A claimant may seek

“review "3 of the Board’s decision by means of either a

motion for reconsideration by the Board, see 38 U.S.C.

§ 7103(a) (1994); 38 C.F.R. § 20.1000(a) (1997) (“Recon-

sideration of an appellate decision may be accorded at

any time .. . [u]pon allegation of obvious error of fact or

law.”), or a notice of appeal to the court, see 38 U.S.C.

§ 7252 (1994) (“The Court of Veterans Appeals shall have

exclusive jurisdiction to review decisions of the Board of

Veterans’ Appeals.”). Section 5104 requires the Secretary

to explain the procedures for instituting each of these

types of review. Contrary to Cummings’ argument, the

statute does not also require that the Secretary explain

how the pursuit of one procedure may or may not affect

recourse to the other, nor does it require the Secretary to

explain every tactic by which a claimant may preserve

3 We contrast “review” of the Board’s decision with

“reevaluation” of the claim in light of new and material

evidence. Reevaluation may be obtained by seeking

reconsideration by the Board, see 38 C.F.R. § 20.1000(b)

(“Reconsideration of an appellate decision may be accorded at

any time... [u]pon discovery of new and material evidence in

the form of relevant records of the service department

concerned.”), or by submission of the new and material

evidence directly to the VA office in which the claim was

originally filed, see 38 U.S.C. § 5108 (1994) (“If new and material

evidence is presented or secured with respect to a claim which

has been disallowed, the Secretary shall open the claim and

review the former disposition of the claim.”).

App. 10

recourse to each procedure. Books are written on appel-

late procedure, and the statute does not require that the

notice be a legal treatise. The statute requires only that

the Secretary explain how and when to pursue recon-

sideration by the Board and appeal to the court. The

Appeals Notice explains these procedures and clearly

identifies the sole relevant filing deadline, the 120-day

period for filing an appeal to the court.

Cummings’ reliance on legislative history to supple-

ment this statutory mandate is misplaced. While it is true

that a proposed Senate bill would have required that the

Secretary provide “detailed information” to claimants at

each stage of claim adjudication including “a detailed

description of the subsequent procedural alternatives

through which the claim might be pursued,” that bill was

never enacted into law. See S.Rep. No. 101-126 at 269, 294,

296-97 (1989), reprinted in 1989 U.S.C.C.A.N. 1469, 1700,

1702-03. The provision before us does not require such

detail. Rather, the enacted requirements described above

are far less demanding of the Secretary than the proposed

Senate bill. Because the language of the statute is unam-

biguous and the legislative history does not clearly

express a contrary legislative intent, Cummings’ argu-

ment must fail. See Burlington Northern R. Co. v. Oklahoma

Tax Com’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1860, 95

L.Ed.2d 404 (1987) (“Legislative history can be a legiti-

mate guide to a statutory purpose obscured by ambiguity,

but ‘[i]Jn the absence of a clearly expressed legislative

intention to the contrary, the language of the statute itself

must ordinarily be regarded as conclusive.’ ” (quoting

United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116,

3121, 92 L.Ed.2d 483 (1986))).

App. 11

We also reject Cummings’ argument that section

5104(a) requires the Board to explicitly inform each claim-

ant that she may seek legal representation before the

Court of Veterans Appeals or that attorney fees for an

appeal may be paid by the VA if the government's posi-

tion was not “substantially justified.” See 28 U.S.C.

§ 2412(d)(1)(A) (1994 & Supp. III 1997). As the Secretary

points out, this argument is largely grounded on the same

inapt legislative history cited by Cummings in support of

her first argument. Even if we were to consider the cited

legislative history to be relevant, it nowhere requires the

Secretary to notify a claimant of her right to be repre-

sented by counsel before the court. The final paragraph of

the Appeals Notice indicates that “[a]n attorney-at-law or

an accredited agent may also represent” the claimant

before the VA or Board, and specifically notifies the claim-

ant where she may inquire regarding similar legal repre-

sentation before the court. Thus, the Appeals Notice does

refer to the issue of representation before the court, even

though it is not required by statute. Additionally, the

notice sought by Cummings regarding the EAJA’s attor-

ney fees provision might be misleading. Because the gov-

ernment’s position has been found to have been

“substantially justified” under the EAJA even when the

government has lost on appeal, such a notice might give a

claimant false hope that her attorney fees would be paid

by the VA. See, e.g., Felton v. Brown, 7 Vet.App. 276 (1994)

(holding that the VA’s position was substantially justified

even though the regulation on which it relied was invali-

dated as exceeding its statutory authority); see also Pierce

v. Underwood, 487 U.S. 552, 569, 108 S.Ct. 2541, 2552, 101

L.Ed.2d 490 (1988) (“Conceivably, the Government could

App. 12

take a position that is not substantially justified, yet win;

even more likely, it could take a position that is substan-

tially justified, yet lose.”).

Finally, although we conclude that the Secretary’s

Appeals Notice satisfies the requirements of section

5104(a), we do recognize that the failure to explain the so-

called “tolling principle of Rosler” may unnecessarily con-

fuse a claimant who wishes to appeal to the Court of

Veterans Appeals, but only after first pursuing recon-

sideration by the Board. The fact that there is no pre-

scribed time limit for seeking reconsideration might

cause a claimant to lose sight of the fact that, under

Rosler, there is a 120-day period for moving for recon-

sideration if the claimant wishes to appeal to the court

after the Board disposes of the motion for reconsidera-

tion. To allay such confusion, the Secretary may wish to

cite the Rosler case in the Appeals Notice and inform

claimants that they must either appeal during the 120-day

appeal period or seek reconsideration during that time

period and then timely appeal to the court following any

reconsideration decision, if they wish to preserve their

right to appeal.

CONCLUSION

Because the Secretary's Appeals Notice provided

Cummings with an adequate “explanation of the pro-

cedure for obtaining review of the [Board’s] decision,” 38

U.S.C. § 5104(a), the time period for filing an appeal was

not tolled by virtue of an insufficient notice of appeal

rights. As Cummings did not file either a notice of appeal

to the court or a motion for reconsideration by the Board

App. 13

within 120 days of the mailing of the Board’s decision, the

Court of Veterans Appeals lacked jurisdiction to consider

her appeal. Accordingly, the decision dismissing Cum-

mings’ appeal is

AFFIRMED.

App. 14

(Cite as: 1996 WL 366406 (Vet.App.))

NOTE: THIS OPINION WILL NOT BE PUBLISHED

IN A PRINTED VOLUME. THE DECISION WILI

APPEAR IN TABLES PUBLISHED PERIODICALLY.

No. 95-1058 Helen CUMMINGS, Appellant,

v.

lesse BROWN, Secretary of Veterans Affairs, Appellee.

No. 95-1058.

United States Court of Veterans Appeals.

lune 26, 1996.

ORDER

FARI EY, Judge.

On October 24, 1995, the appellant filed a Notice of

Appeal (NOA) from the August 2, 1995, decision of the

Chairman of the Board of Veterans’ Appeals (Board or

BVA) denying reconsideration of a February 28, 1995,

BVA decision. On January 24, 1996, the Secretary moved

to dismiss for lack of jurisdiction. On March 13, 1996, the

Court granted the appellant's unopposed motion for a

stay of proceedings pending the Court’s decision in Pitt-

man v. Brown, No. 94-925. the Court issued an opinion in

that case on April 8, 1996. See Pittman v. Brown, 9 Vet.App.

60 (1996).

Because the appellant was represented before the

BVA by the Disabled American Veterans (DAV) and in

light of the Court’s decision in Davis v. Brown, 7 Vet.App.

298 (1994), on April 15, 1996, the Court ordered the

Secretary to file (1) a copy of the VA Form 23-22

App. 15

(Appointment of Veterans Service Organization as Claim-

ant’s Representative) and (2) a declaration addressing,

inter alia, whether the BVA mailed a copy of its February

28, 1995, decision directly to the appellant's representa-

. § 7104(e) and, if not, to

provide evidence of receipt. See Davis, supra; Ashley v

Derwinski, 2 Vet.App. 307 (1992).

~

tive in accordance with 38 U.S.C

On May 15, 1996, the Secretary filed a copy of the VA

Form 21-22 and a declaration from the Assistant Director

of Administrative Service of the Board. On the appellant's

VA Form 21-22 the appellant designated the DAV with no

specific address in block 3, and block 12 contains the

words “no restrictions.” The declaration reflects: (1) that

on February 28, 1995, a copy of the BVA decision was

mailed to the DAV at its national appeals office; (2) there

is no indication that the decision mailed to the appellant's

representative was returned as undeliverable by the U.S.

Postal Service; and~(3) a second courtesy copy was for-

warded via flat mail to the DAV office located at the VA

regional office.

On June 10, 1996, the appellant, through counsel,

filed an opposition to the Secretary’s motion to dismiss.

[he appellant argues that segments of the BVA’s notice of

appellate rights accompanying its decision are illegal

insofar as they failed to provide notice of (1) the appel-

lant’s opportunity to retain an attorney at no cost to

herself and (2) the law regarding motions for reconsidera-

tion. The appellant further argues that she was provided

poor advice by her former representative regarding the

filing of a motion for reconsideration.

App. 16

The ultimate burden of establishing jurisdiction rests

with the appellant. See McNutt v. G.M.A.C., 298 U.S. 178

(1936); Bethea v. Derwinski, 2 Vet.App. 252 (1992). To be

timely filed under Rule 4 of this Court’s Rules of Practice

and Procedure and precedents construing 38 U.S.C.

§ 7266(a), an NOA must be filed with the Court within

120 days after the BVA decision is mailed to an appellant.

See Butler v. Derwinski, 960 F.2d 139 (Fed.Cir.1992). Fur-

ther, to abate the finality of the BVA’s decision, the appel-

lant’s motion for reconsideration must be filed with the

BVA within 120 days after the BVA’s decision is issued.

See Rosler v. Derwinski, 1 Vet.App. 241 (1991). This Court

may not review denials of reconsideration by the BVA

Chairman in cases where it does not already have juris-

diction by virtue of a timely appeal from a final Board

decision. Mayer v. Brown, 37 F.3d 618 (Fed.Cir.1994).

The Court holds that the BVA fulfilled the require-

ments of 38 U.S.C. § 7104(e) on February 28, 1995, when it

mailed a copy of its decision to the national appeals office

of the DAV. Cf. Pittman, 9 Vet.App. at 62 (by designating

“(Anywhere)” as the address for his representative, the

appellant authorized the BVA to send a copy of its deci-

sion to any office of his representative). In order for the

appellant’s NOA to have been timely then, the appel-

lant’s motion for reconsideration must have been

received by the BVA within 120 days after February 28,

1995.

The appellant's motion for reconsideration was

received by the BVA 127 days after the Board’s decision

was issued. It is irrelevant that the appellant’s then repre-

sentative may not have informed her of how to protect

her right to judicial review under Rosler. See Shields v.

App. 17

Brown, 8 Vet.App. 346, 351 (1995) (Court rejected appel-

lant’s argument that she was prevented from filing a

timely claim by representations of a local veterans service

office). Where an appellant relies, to his or her detriment,

on the advice of an entity other than VA, the appellant

must look to the representative, not VA, for recovery.

Shields, 8 Vet.App. at 351; see also Robinson v. United States

Navy, 342 F.Supp. 381, 383 (E.D.Pa.1972) (if the fault or

negligence was that of his representative, the appellant

may look to the representative for recovery). With respect

to the appellant’s argument that the notice of appellate

rights was deficient, the Court holds that the BVA satis-

fied the requirement imposed by 38 U.S.C. § 5104(a)

providing a “general outline of what steps must be taken

in order to appeal the BVA decision to this Court.” Pitt-

man, 9 Vet.App. at 65. As neither an NOA nor a motion

for reconsideration was filed within the 120-day filing

period, the Court is without jurisdiction to adjudicate the

instant appeal.

On consideration of the foregoing, it is

ORDERED that the Secretary’s motion is granted and

this appeal is DISMISSED for lack of jurisdiction.

App. 18

EXHIBIT 3

BOARD OF VETERANS’ APPEALS NOTICE

Feb. 28, 1995

Enclosed is a copy of the decision reached by the Board of

Veterans’ Appeals (BVA) in your appeal. This is a final

decision by the BVA. It is based upon ail the evidence of

record and the applicable laws and regulations.

If the decision is not favorable to you:

(1) You may file a motion for reconsideration of this BVA

decision at the following address: Board of Veterans’

Appeals, 810 Vermont Avenue, NW., Washington, DC

20420. Your motion may be in the form of a letter. It

should state clearly and specifically which issue or issues

you want the BVA to reconsider and the specific reasons

why the BVA should reconsider the issue or issues.

(2) You may have the right to appeal this decision to the

United States Court of Veterans Appeals (the Court). You

may appeal to the Court a final decision of the BVA that

follows a notice of disagreement filed on or after Novem-

ber 18, 1988. A Notice of Appeal must be filed with the

Court within 120 days from the date of mailing of the

notice of the BVA decision. The date of mailing is the date

that appears on the face of the BVA decision. The Court's

address is: The United States Court of Veterans Appeals,

625 Indiana Avenue, NW., Suite 900, Washington, DC

20004. You may obtain information about the form of the

Notice of Appeal, the methods by which you may file

your Notice of Appeal with the Court, the amount of any

filing fee, and other matters covered by the Court’s rules

directly from the Court. You should also mail a copy of

——

App. 19

the Notice of Appeal to the VA General Counsel (027), 810

Vermont Avenue, NW., Washington, DC 20420. However,

the VA General Counsel is not a part of the Court and

filing a copy of your Notice of Appeal with the VA

General Counsel or any other VA office WILL NOT pro-

tect your right of appeal.

In addition to these rights, you may also reopen your

claim by submitting new and material evidence to the

Department of Veterans Affairs (VA) office where your

claim originated. VA may not consider another claim on

the same factual basis. Reopening your claim will not

affect this BVA decision, but your reopened claim may be

granted on the basis of new and material evidence which

supports your claim.

An accredited representative of a recognized service

organization, or an individual whom you choose to repre-

sent you in your claim before VA and on appeal to the

BVA, may represent you without charge. An attorney-at-

law or an accredited agent may also represent you. An

attorney or accredited agent may charge you a fee to

represent you before VA, including the BVA, with respect

to a claim under the following circumstances: (1) you

filed a notice of disagreement with respect to the claim on

or after November 18, 1988; (2) a final BVA decision was

subsequently issued with respect to that claim; and (3)

you retained the attorney or accredited agent to represent

you within one year from the date of the final BVA

decision on that claim. These requirements do not apply

to services of agents or attorneys provided after October

9, 1992, in connection with a proceeding in a case arising

out of a loan made, guaranteed, or insured under Chapter

37 of title 38, United States Code. In a Chapter 37 loan

App. 20

proceeding, an attorney or agent may charge a reasonable

fee in writing. A copy of any fee agreement between you

and the attorney or accredited agent must be filed at this

address: Office of Counsel to the Chairman (01C), Board

of Veterans’ Appeals, 810 Vermont Avenue, NW., Wash-

ington, DC 20420. The BVA may review the fee agreement

for reasonableness on its own motion, or you or your

attorney or accredited agent may file a motion for the

BVA to review the fee agreement for reasonableness at

the same address at which the agreement was filed. You

may ask the Court to give you information on representa-

tion before the Court.

App. 21

EXHIBIT 4

BOARD OF VETERANS’ APPEALS NOTICE

Apr. 10, 1998

We have enclosed a copy of the board of Veterans’

Appeals (BVA) decision in your appeal. This is the final

decision for all issues either allowed, denied, or dis-

missed by the BVA in the “Order” section of the decision.

A “remand” section may follow the “Order,” but a

remand is not a final decision. The advice below only applies

to issues that were allowed, denied, or dismissed in the

“Order.”

You need do nothing further if you are satisfied with the

outcome of your appeal. We will return your file to your

local VA office to implement the BVA’s decision. If you

are not satisfied with the BVA’s decision on any or all of

the issues allowed, denied, or dismissed, you have three

options:

(1) Motion for Reconsideration: You can file a “motion”

asking the BVA to reconsider its decision by writing a

letter to the BVA showing why you believe that the BVA

committed an obvious error of fact or law in its decision

in you appeal, or showing that new and material military

service records have been discovered that are applicable

to your appeal. If the BVA decided more than one issue,

be sure to teil us which issues you want reconsidered.

Address you letter to: Director, Administrative Service

(014), Board of Veterans’ Appeals, 810 Vermont Avenue,

NW, Washington, DC 20420. There is no time limit for

filing a motion for reconsideration.

App. 22

(2) Appeal to the United States Court of Veterans

Appeals: If this BVA decision follows a Notice of Dis-

agreement file on or after November 18, 1988, you have

the right to appeal it to the United States Court of Vet-

erans Appeals (the Court). A Notice of Appeal must be

filed with the Court within 120 days from the date of

mailing of the notice of the BVA’s decision. The date of

mailing is the date that appears on the face of the

enclosed BVA decision. The Court’s address is: The

United States Court of Veterans Appeals, 625 Indiana

Avenue, NW, Suite 900, Washington, DC 20004. You may

obtain information about the form of the Notice of

Appeal, the procedure by which you may file you Notice

of Appeal with the Court, the filing fee, and other matters

covered by the Court’s rules directly from the Court. You

must also mail a copy of the Notice of Appeal to the VA

General Counsel (027), 810 Vermont Avenue, NW, Wash-

ington, DC 20420. However, this does not take the place

of the Notice of Appeal you must file with the Court.

Filing a copy of your Notice of Appeal with the General

Counsel, the Board, or any other VA office WILL NOT

protect your right of appeal to the Court.

(3) Reopening your claim: While it would not affect this

BVA decision, you can also ask you local VA Regional

Office to reopen your claim. To be successful in reopening

your claim, you must submit new and material evidence

to that office. VA may not consider another claim on the

same factual basis.

You can do one or any combination of the above three

things, but filing a concurrent Notice of Appeal with the

court and a motion for reconsideration with the Board

may delay your case because of jurisdictional conflicts.

App. 23

You will still have time to appeal to the Court after you

file a motion for reconsideration with the Board if you file

you motion promptly. The Court has held that if we

receive you motion for reconsideration within 120 days

from the date we mailed you the enclosed decision you

will still be able to file a Notice of Appeal with the Court

within a period of 120 days from the date that the Board

mails you either notice that it has denied you motion or

notice of its decision on reconsideration. If you file a

Notice of Appeal with the Court before you file a motion

for reconsideration with the BVA, the BVA will not be

able to consider your motion without the Court’s permis-

sion.

Representation before VA: You may represent yourself in

your claim before VA, including the BVA, or you may

appoint someone to represent you. You may appoint an

accredited representative of an organization recognized

by VA (a “service organization”), or another individual

whom you choose, to represent you in your claim. These

persons may not charge you to represent you. In the

alternative, you may appoint an attorney-at-law or a VA

accredited ageni to represent you. These persons may

charge you a fee for their services under the following

circumstances: (1) you filed a notice of disagreement with

respect to the claim on or after November 18, 1988; (2) a

final BVA decision was subsequently issued with respect

to that claim; and (3) you retained the attorney or accred-

ited agent to represent you within one year from the date

of the final BVA decision on that claim. An attorney or

agent can charge a reasonable fee without meeting these

requirements of services provided after October 9, 1992,

in connection with a proceeding in a case arising out of a

App. 24

loan made, guaranteed, or insured under Chapter 37 of

title 38, United States Code. In all VA cases, a copy of any

fee agreement between you and an attorney or accredited

agent must be filed at this address: Office of the Chief

Counsel (01C), Board of Veterans’ Appeals, 810 Vermont

Avenue, NW, Washington, DC 20420. The BVA may

review the fee agreement for reasonableness on its own

motion, or you or your attorney or accredited agent may

file a motion for the BVA to review the fee agreement for

reasonableness at the same address at which the agree-

ment was filed

Representation before the Court: Information about rep

resentation before the Court may be obtained by writing

directly to the Court. Upon request, the Court will pro-

vide you with a state-by-state listing of persons admitted

to practice before the Court who have indicated their

availability to represent appellants.