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Cummings v. West

February 24, 1998


Appealed from: United States Court of Veterans Appeals judge Farley, III

Before Lourie, Circuit Judge, Archer, Senior Circuit Judge, *fn1 * and Clevenger, Circuit Judge.

The opinion of the court was delivered by: Lourie, Circuit Judge.

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 (Vet. App. June 26, 1996). Because Cummings did not timely appeal to the Court of Veterans Appeals, we affirm.


In 1992, Cummings, the surviving spouse of a deceased veteran, applied to the Department of Veterans Affairs (VA) seeking dependency and indemnity compensation. 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 representative, 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 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 November 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 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 represent 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: . . . . 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 evidence . . . ; 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 Cummings' 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 Veterans 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 reconsideration nor her notice of appeal were filed within 120 days of the Board's decision. In response to Cummings' arguments 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 notice of her appeal rights, the 120-day appeal period was tolled, i.e., suspended. She therefore asserts that her appeal was not untimely.


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 regulation . . . or any interpretation thereof (other than a determination 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 certain standards for review); Fugere v. Derwinski, 972 F.2d 331, 334 (Fed. Cir. 1992). Since this appeal presents a question of statutory interpretation, viz., the requirements of a notice imposed by section 5104(a), it is clear ...

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