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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998

## Text

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

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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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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.

eceutenanteceieminietiatisteientnsietinieeti & qrascitrneypiianinnanaetcpuanienganemangins

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1581%3A1. Public record. Not legal advice.