Whitt v. Derwinski — Notice of disagreement jurisdiction depends on whether the filing was required to initiate or continue appellate review

This record reflects the Court’s en banc consideration of the Secretary’s motion in Whitt and Williams concerning whether later disagreement filings constituted valid notices of disagreement under the Veterans’ Judicial Review Act for jurisdictional purposes. The separate opinions focus on the statutory function of a notice of disagreement under 38 U.S.C. § 4005 and whether a later-filed disagreement, after an earlier NOD had already initiated appellate review, can still serve as a valid NOD. Judge Kramer’s concurrence emphasizes that the statute and regulation do not limit an NOD to only the first step in the appeal process, and that a later NOD may be valid where VA has issued a new adjudicative determination. Judge Steinberg’s dissent argues that the Court’s approach created an extra-statutory NOD untethered to the purpose Congress intended, namely initiating BVA appellate review. The opinion is significant as an early jurisdictional discussion of how the NOD functioned under the VJRA and how statutory purpose and VA practice bear on appellate jurisdiction.

An NOD under the VJRA must be evaluated in light of section 4005 and the applicable regulation; a later disagreement filing may qualify only when it responds to an adjudicative determination and performs a legally meaningful appellate function.

For appeals strategy, this case highlights that jurisdiction can turn on whether a disagreement filing is legally operative under the VA appellate scheme, not simply on its label or timing.

The case is an early and important jurisdictional discussion under the post-VJRA review system. It illustrates how NOD timing and function can affect whether the Court has jurisdiction, especially when VA issues partial grants or later adjudicative decisions during a pending appeal.

Treating any later disagreement filing as automatically sufficient for jurisdiction without analyzing whether it was legally required or responsive to a new adjudicative determination.

A veteran appeals a rating decision, VA later issues a partial grant, and the claimant submits another disagreement statement. Practitioners should assess whether that later filing was necessary to contest a new adjudication or merely duplicative of an already pending appeal.

Use this case when arguing about the jurisdictional significance of a post-decision disagreement filing and whether VA treated the filing as a new NOD or as continuation of an existing appeal.

38 U.S.C. § 4005, 38 C.F.R. § 19.118, 38 C.F.R. § 19.125