What does Hernandez v. VA (CAVC 24-9456) mean for disputes over whether my NOD or Board appeal was valid?

This order does not decide Mr. Hernandez's case yet. It is an order in which the U.S. Court of Appeals for Veterans Claims (CAVC) says it needs to resolve a legal question before it can rule: what standard of review applies when the Board decides whether a document (like a VA Form 10182, which is a Board appeal in the modernized system, "also known as a Notice of Disagreement (NOD)") properly identified the decision being appealed.

In the case, the Board found that Mr. Hernandez's February 2022 VA Form 10182 challenged an August 2021 VA letter. The Secretary now concedes error, stating that "the Board erroneously found that the February 2022 VA Form 10182 challenged an August 2021 VA letter, not the January 2022 VA letter that the NOD actually cited." The Secretary asked the Court to remand so the Board can address whether the January 2022 letter was even an appealable decision, and also address other statements trying to appeal a 2020 rating decision. Mr. Hernandez disagrees with the Secretary's proposed remand and instead wants the Court to reverse outright.

The Court says that to accept the Secretary's remand concession, it would have to treat the NOD's validity as a factual question. But under the old (legacy) system, "[w]hether a document is an NOD is a question of law for the Court to determine de novo," per Beyrle v. Brown. The Court notes that one judge has suggested, in a concurrence, that this de novo standard may no longer apply after later statutory changes affecting the Court's jurisdiction over NODs. The Court states plainly that "there appear to be no precedential decisions on how we review NOD questions under the modernized system," so it is now appointing pro bono counsel to help litigate that unresolved standard-of-review question.

The source text does not say when this issue will be decided, does not state a new rule, and does not say the decision is retroactive or affects other pending claims. It is only an order arranging for counsel to brief the issue — there is no holding yet.

If you have a pending appeal where you believe the Board misidentified or mishandled your NOD or VA Form 10182, keep copies of the actual notice you filed and the date-stamped VA decision letter it referenced, and watch for a future precedential ruling in this case before assuming a particular review standard applies to your situation.