Burke v. Brown — Appeal dismissed for lack of jurisdiction because the only valid NOD predated the Veterans Judicial Review Act cutoff

John Burke sought review of a Board decision denying service connection for residuals of radiation exposure, including skin cancer, and several other disorders. While the appeal was pending, the Court addressed the impact of Federal Circuit and en banc authority concerning notice-of-disagreement jurisdiction under 38 U.S.C.A. § 7105. The Court explained that its appellate jurisdiction exists only when a valid notice of disagreement was filed on or after November 18, 1988. Burke’s record showed that he filed a notice of disagreement on November 16, 1987, in response to the relevant RO denial, making the appeal jurisdictionally defective. The Court therefore vacated its stay and dismissed the appeal for lack of jurisdiction. The case is important because it illustrates the strict jurisdictional role of the NOD filing date and the need to confirm appellate jurisdiction before briefing the merits.

A valid notice of disagreement filed before November 18, 1988 does not confer CAVC jurisdiction; the Court may dismiss an appeal when the jurisdictional NOD cutoff is not met.

Before litigating the merits at the CAVC, confirm that the appeal is anchored by a valid post-November 18, 1988 NOD. If not, the Court will dismiss for lack of jurisdiction regardless of the underlying claim strength.

Burke is a practical jurisdiction check for veterans law practitioners. It reminds advocates that an appeal can fail at the threshold if the record shows only a pre-cutoff NOD, even when the Board has issued later decisions and the claimant has continued to litigate.

Filing an appeal without confirming that a jurisdictionally valid post-November 18, 1988 notice of disagreement exists.

A veteran seeks CAVC review of a Board denial, but the only notice of disagreement in the record was filed in 1987. Under Burke, the Court would lack jurisdiction and dismiss the case.

Use Burke to assess jurisdiction early and to oppose merits briefing where the appellate record shows no valid NOD filed on or after November 18, 1988.

Hamilton v. Brown, Strott v. Derwinski, Christianson v. Colt Industries Operating Corp., Prenzler v. Derwinski, Skinner v. Derwinski