UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 08-0548

PETER L. KOUVARIS, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued January 15, 2009 Decided February 25, 2009)

Landon E. Overby, of Washington, D.C., with whom Robert V. Chisholm, of Providence,

Rhode Island, and Zachary M. Stolz, of Washington, D.C., were on the pleadings, for the

appellant.

Richard Mayerick, with whom John H. Thompson, Acting General Counsel; R. Randall

Campbell, Assistant General Counsel, all of Washington D.C., were on the pleadings, for the

appellee. 

Before KASOLD, LANCE, and DAVIS, Judges.

KASOLD, Judge: Peter L. Kouvaris appeals a July 17, 2007, decision of the Board of

Veterans' Appeals (Board) that denied disability compensation for residuals of a gastrectomy because

they were not service connected. For the reasons set forth below, this appeal will be dismissed for

lack of jurisdiction.

I. FACTS

 Mr. Kouvaris filed a Notice of Appeal (NOA) with the Court on February 15, 2008, more

than 120 days after the date the Board decision was mailed to him. He also filed a VA Form 21-

4138 (Statement in Support of Claim), with the Board on October 12, 2007, well within the 120-day

filing period. That form has "Notice of Disagreement" written across the top. It also includes Mr.

Kouvaris's name, address, telephone number, and Department of Veterans Affairs claims file
2

number, and it states that "[b]eing the above named Veteran I wish to file this notice of disagreement

with the Department of Veterans Affairs Board of Veterans' Appeals." For reasons not known, the

form was forwarded by the Board to the Providence, Rhode Island, regional office (RO). The RO

then sent Mr. Kouvaris a letter on November 14, 2007, that advised him that if he wanted to appeal

the Board decision he should send his appeal to the Court. Mr. Kouvaris then filed the document

with the Court.

II. ARGUMENTS OF THE PARTIES

In response to an order to show cause why his appeal should not be dismissed, as well as in

response to an order for supplemental briefing, Mr. Kouvaris argues that the VA Form 21-4138 that

he filed with the Board constitutes an NOA. Assuming arguendo that it constitutes an NOA, Mr.

Kouvaris recognizes that it was not timely mailed to the Court. He argues, however, that it was

timely received by the Board, and that this reciept should be considered a timely filing of an appeal

to the Court for our jurisdictional purposes. In the alternative, Mr. Kouvaris argues that this

document constitutes a motion for reconsideration by the Board pursuant to 38 C.F.R. § 20.1001

(2009). 

Mr. Kouvaris acknowledges that the recent decisions in Bowles v. Russell, 127 S. Ct. 2360,

2365 (2008) and Henderson v. Peake, 22 Vet.App. 217 (2008)stand for the proposition that the time

to file an appeal is jurisdictional and may not be equitably tolled, but he distinguishes these cases

by noting that they did not involve a timely, albeit misfiled appeal, that he argues is the case here.

Mr. Kouvaris further argues that 38 U.S.C. § 7266(a) permits the Court to treat a misfiling with the

Secretary as a deemed filing at the Court. By way of analogy, he notes that certain misfilings in the

wrong Federal court have been recognized by judicial decision or rule as filed in the correct court

on the date of the misfiling in the wrong court. See FED. R. APP. P. 4(d) (governing misfilings in

U.S. CircuitCourts of Appeal); see also 28 U.S.C. § 1631 (in cases of misfiling, authorizing appeals

to proceed as if they "had been filed or noticed for the court to which it is transferred on the date

upon which it was actually filed in or noticed for the court from which it is transferred"). Mr.

Kouvaris also notes that although not explicitly authorized by statute, the Supreme Court has

recognized the date a pro se prisoner deposits a notice of appeal with a prison official for mailing
3

as the date it was filed with the court. See Houston v. Lack, 487 U.S. 266 (1988); but see Elsevier

v. Derwinski, 1 Vet.App. 150 (1991) (rejecting the argument that a filing at the RO or Board could

be constructively filed with the Court). 

The Secretary argues that Henderson, supra, controls this matter and that equitable tolling

is not permitted. He also notes that Mr. Kouvaris did not characterize his filing as a motion for

reconsideration until doing so in his supplemental briefing. 

III. ANALYSIS

A. Form 21-4138 filed at the Board is not an NOA.

It is well settled that a document filed with the Court will be liberally construed to constitute

an NOA "'as long as the intent to seek Court review is clear from the document as a whole and the

circumstances of its filing with the Court.'" Durr v. Nicholson, 400 F.3d 1375, 1381 (Fed. Cir. 2005)

(quoting In Re Rules of Practice & Proc., U.S. Vet. App. Misc. No. 1-02 (Sept. 17, 2002)); Losh v.

Brown, 6 Vet.App. 87, 90 (1993) ("Court has traditionally adopted a liberal rule of construction as

to what constitutes a valid NOA"); see also Chadwick v. Derwinski, 1 Vet.App. 74 (1990) (holding

that a VA Form 21-4138 that meets the substantive requirements of both section 7266(a) and Rule

3 of the Court's Rules and requests review by the Court is an NOA). 

Thus, the failure to explicitly ask for judicial review, or state that one is appealing, does not

necessarily mean that a document filed with the Court will not be considered an NOA. Even a pro

se appellant's letter to the Court "can be seen as an effort by an appellant who . . . was perhaps not

aware of the difference between adjudication and appellate review, to pursue his claim to the next

appropriate level in the system." Calma v. Brown, 9 Vet.App. 11, 15 (1996) (further noting that pro

se appellant's letter expressing a desire to "'follow the legal flow' combined with the direction of this

desire in writing to this Court, is sufficient, in this case, to satisfy the section 7266(a) requirement,

as interpreted in Chadwick, that an NOA request review by this Court").

In this instance, although the Form 21-4138 filed by Mr. Kouvaris fails to explicitly express

an intent to seek judicial review, it does evince a disagreement with the only Board decision of

record. However, when Mr. Kouvaris filed his Form 21-4138 with the Board, it lacked any indicia

of intent to seek review by the Court. The document had "Notice of Disagreement" written across
4

the top; it not only was filed with the Board, it also expressed the explicit intent to "file this notice

of disagreement with the Department of Veterans Affairs Board of Veterans' Appeals." Thus, even

liberally read, the content of the form and circumstances of filing it at the Board do not support a

conclusion that the document constituted a misfiled NOA at that time. Under these circumstances,

we need not decide whether an NOA misfiled below may be deemed filed at the Court on the date

of the misfiling below. 

B. Form 21-4138 filed at the Board is a request for reconsideration.

Piecemeal litigation generally is not permissible. See Burton v. Principi, 15 Vet.App. 276,

277 (2001) (per curiam order) ("We should not encourage the kind of piecemeal litigation in which

the appellant here has engaged."); Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990) ("[a]dvancing

different arguments at successive stages of the appellate process does not serve the interests of the

parties or the Court" because piecemeal litigation hinders the decisionmaking process). With regard

to Mr. Kouvaris's belated contention that the Form 21-4138 he filed with the Board constituted a

request for reconsideration, Mr. Kouvaris's counsel informed the Court that he filed the appeal based

on the letter Mr. Kouvaris had received from the RO and without having the opportunity to review

the VA claims file. Additionally, when he responded to the show cause order he had not yet seen the

Form 21-4138 his client had filed with the Board. Upon receipt of a copy of the Form 21-4138 filed

below, Mr. Kouvaris promptly raised the alternative argument that it constituted a request for

reconsideration, and so informed the Secretary of the reason for this late argument. Mr. Kouvaris

also notes that it was the RO that originally implied that the Form 21-4138 indicated an intent to

appeal the matter to the Court, and prompted Mr. Kouvaris to file an appeal with the Court. Mr.

Kouvaris further argues that inasmuch as his filing was forwarded by the Board to the RO and then

returned to Mr. Kouvaris with the suggestion that if he wanted to appeal the decision of the Board

he should file an appeal with the Court, it was reasonable for Mr. Kouvaris, who was pro se at the

time, to believe the Board was not going to reconsider his claim and that his only avenue for review

was to appeal to the Court. Under these circumstances, Mr. Kouvaris's alternative argument will be

considered. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (if Court has jurisdiction

over the claim, issues presented for the first time on appeal may be addressed, disregarded, or

remanded back to the Board for further development).
5

Pursuant to paragraph (a) of 38 C.F.R. § 20.1001, a motion for reconsideration must be in

writing and must include (1) the name of the veteran, (2) the applicable VA file number, and (3) the

date of the Board's decision to be reconsidered. With the exception of the date of the Board decision

to be reconsidered, (which was apparent from the circumstances, as mentioned above), the Form 21-

4138 filed byMr. Kouvaris met these requirements. A request for reconsideration must also set forth

the alleged obvious error of fact or law in the applicable decision of the Board, or other appropriate

basis for requesting reconsideration, 38 C.F.R. § 20.1001(a), and the Form 21-4138 filed below by

Mr. Kouvaris meets this requirement as well. Specifically, the form explains Mr. Kouvaris's

assertion that the Board failed to properly consider medical and hospital records that may provide

the required nexus for service connection. See Carpenter v. West, 11 Vet.App. 140, 146-47 (1998)

(Board must review all issues reasonably raised by liberal reading of appeal). 

A request for reconsideration also should be filed specifically with the Director, Management

and Administration (01E), at the Board. 38 C.F.R. § 20.1001(b). In light of the veteran-friendly

nature of the veterans benefits system, however, strict compliance as to where within the Board, or

even within VA, the motion forreconsideration must be filed is not required. See Jaquay v. Principi,

304 F.3d 1276, 1287 (Fed. Cir. 2002) (holding that the language of 38 C.F.R. § 20.1001 stating that

motions for reconsideration "must be filed at the following address" is merely for the administrative

convenience of the Board). Accordingly, the Court concludes that Mr. Kouvaris's filing constituted

a motion for reconsideration, which is still pending below. Cf. Beyrle v. Brown, 9 Vet.App. 24, 28

(1996) ("Whether a document is an NOD [Notice of Disagreement] is a question of law for the Court

to determine de novo under 38 U.S.C. § 7261(a)."); Gibson v. Peake, 22 Vet.App. 11, 15 (2007)

(whether a document constitutes a Substantive Appeal to the Board is a matter of law, which the

Court reviews de novo). Moreover, because Mr. Kouvaris filed with the Board a motion for

reconsideration, the finality of the Board's July 17, 2007, decision was abated by that filing. Rosler

v. Derwinski, 1 Vet.App. 241, 249 (1991). Mr. Kouvaris will have 120 days from the issuance of any

unfavorable decision of the Board Chairman on the motion for reconsideration to file an appeal in

this Court, id.
6

IV. CONCLUSION

Upon consideration of the foregoing, Mr. Kouvaris's appeal is dismissed for lack of

jurisdiction.

APPEAL DISMISSED.