Federal Circuit: A VA Board Remand Is Not an Appealable Decision

Federal Circuit: A VA Board Remand Is Not an Appealable Decision

The Federal Circuit issued two nonprecedential per curiam opinions on September 14, 2026, affirming that the Court of Appeals for Veterans Claims had no jurisdiction over either appeal. In each case the order the veteran appealed was a Board remand, not a decision granting or denying benefits.

Information last verified on September 16, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: This article addresses federal law governing appellate jurisdiction over Board of Veterans' Appeals orders, specifically 38 U.S.C. 7252, 7266 and 7292 and the Federal Circuit case law applying them. It does not address the merits of any disability rating, and it does not address state law. For the underlying benefits system, see our VA disability benefits coverage.

What the Federal Circuit Decided

On September 14, 2026 the Federal Circuit issued two unsigned per curiam opinions, both nonprecedential, both affirming the Court of Appeals for Veterans Claims. In Butenhoff v. Collins, No. 2025-1868, Chief Judge Moore sat with Circuit Judges Prost and Taranto. In Hooper v. Collins, No. 2026-1406, Circuit Judges Stoll and Stark sat with District Judge Barker of the Eastern District of Texas, by designation.

Each appeal failed on the same jurisdictional point. Under 38 U.S.C. 7252(a), the Veterans Court "shall have exclusive jurisdiction to review decisions of the Board of Veterans' Appeals." A Board order that sends a claim back to the regional office for more development is not a decision in that sense, so there is nothing for the Veterans Court to review and nothing for the Federal Circuit to review after it.

The Butenhoff panel concluded that "it cannot be said that the Board denied" any part of the claim, "implicitly or otherwise," and closed on the jurisdictional point:

"We therefore agree with the Veterans Court that there was no final Board decision and that dismissal for lack of jurisdiction was appropriate."

The Hooper panel reached the same result on its own facts, holding that the Board's remand of the dental treatment-purposes claim "is not a 'decision' that would place Mr. Hooper's appeal within the Veterans Court's appellate jurisdiction." Hooper had also moved for an order to show cause why the Secretary's counsel should not be sanctioned or directed to correct the record; the court denied that motion.

Read together, the two opinions decide that these two orders were not appealable. They do not decide that veterans lack access to court review generally, and they say nothing about the merits of either man's underlying entitlement.

Why a Remand Is Not a Decision

The rule the panels applied is more than two decades old. In Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed. Cir. 2005), the Federal Circuit held that a Board remand which "contains no order granting or denying relief" is not a "decision" by the Board. Hooper quotes that language directly.

Kirkpatrick built on Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000), which defined the term by reference to outcomes: a decision of the Board for purposes of the Veterans Court's jurisdiction under section 7252 is the decision with respect to the benefits sought by the veteran, where those benefits are either granted or they are denied. Butenhoff also cites Mote v. Wilkie, 976 F.3d 1337 (Fed. Cir. 2020), as quoted in that opinion, for the proposition that a Board decision under section 7252(a) does not mean a mere remand.

The logic is finality. A remand keeps the claim alive inside the agency, so there is no adverse determination to review and no assurance the veteran will even end up aggrieved once development finishes. Splitting a single claim into a string of interlocutory appeals would also multiply the trips between the agency and the courts, which is the same concern that shapes appealability rules across federal practice.

One consequence of that design is worth knowing. Under 38 U.S.C. 7266(a), a person adversely affected by a final Board decision must file a notice of appeal with the Veterans Court within 120 days after notice of the decision issues under section 7104(e). The clock is tied to the final decision, so a remand does not start it and does not consume it. A veteran whose claim is remanded has not lost an appeal right; the appeal right has not yet arisen. That distinction is easy to lose track of inside how the VA appeal lanes actually work, where each lane has its own deadlines and its own filing forms.

The Federal Circuit's own reach is limited too. Under 38 U.S.C. 7292, it reviews the validity of statutes and regulations and other legal and constitutional questions decided by the Veterans Court, and absent a constitutional issue it may not review a factual determination or a law-to-fact application in a particular case.

The Two Veterans and the Years Their Claims Took

Butenhoff is a Vietnam veteran who filed a claim in 2017 to increase his foot and knee ratings and to add new conditions. The regional office denied most of it. In a March 2024 decision the Board granted nothing and denied nothing. It instead directed the regional office to gather more evidence, make new findings, and undertake additional development on conditions the regional office allegedly never addressed, while expressly reserving the question whether those latter claims were even pending. The Veterans Court dismissed his appeal on April 9, 2025 for want of a reviewable Board decision, and the Federal Circuit affirmed on September 14, 2026. The claim he filed in 2017 has still not produced a decision a court can review.

Hooper sought service connection for a dental condition for treatment purposes under 38 CFR 17.161, an entitlement he has pursued since 2019. The Board remanded the compensation-purposes claim in July 2022 and referred the treatment-purposes claim. When the matter came back, the Board found that despite its own 2022 directive VA had never referred the treatment claim to the Veterans Health Administration, the step 38 CFR 17.161 requires. On September 16, 2025 the Board remanded and referred the treatment-purposes claim again, and dismissed the compensation-purposes claim as one Hooper was not seeking. Hooper appealed only the remand, which is precisely the order the Veterans Court cannot reach. The Federal Circuit made no finding of its own about VA's conduct; it held that even if the record did show such noncompliance, there was still no Board decision to review.

Delays of this length are not merely inconvenient. Because VA benefits are paid retroactively from an effective date, a claim that stalls for years converts into a back-pay question the moment it is finally granted, which is why how effective dates and back pay are calculated matters as much to a stalled claimant as the rating percentage does.

Where the Rule Has Edges

The first edge is the implicit-denial exception. Butenhoff acknowledges, citing Hepler v. Collins and Bean v. McDonough, that the Board's failure to discuss a claim, at least where the claim was denied by the regional office and clearly presented to the Board, may constitute a final decision within the Veterans Court's jurisdiction as an implicit denial of the claimed benefit. Silence, in other words, can sometimes be an appealable denial. Butenhoff did not fit that pattern for a specific reason: the Board did not go silent on his additional conditions. It acknowledged them and reserved them, which the panel read as the opposite of a denial.

The second edge is constitutional, and here the two panels diverged.

Butenhoff took the veteran's due-process premise as given without ruling on it. The panel wrote that even assuming Mr. Butenhoff is right that the Board's and Veterans Court's records were tainted to the extent that he was deprived of due process, it remains a prerequisite for Veterans Court jurisdiction that the Board have first rendered a final decision on his claim, which it has not. The court did not decide whether the record was tainted. The jurisdictional defect disposed of the appeal either way.

Hooper went further. That panel exercised its discretion to consider the due-process argument despite a waiver objection, citing Singleton v. Wulff, 428 U.S. 106, 121 (1976), and then rejected it on the merits. Hooper quotes Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), as recognizing that a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits, and still concluded:

"we cannot say the process of remands here, that continues to revive Mr. Hooper's claim, deprives Mr. Hooper of his right to 'notice and a fair opportunity to be heard' in the adjudication of his claim."

Neither opinion forecloses the question on a different record. One panel found it unnecessary to reach; the other reached it and found no violation on these facts.

What Recourse the Law Provides

Describing what the law provides is not the same as recommending a course of action, and nothing here is advice about any individual claim.

Extraordinary relief exists as a category. The All Writs Act, 28 U.S.C. 1651(a), provides that "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The Veterans Court's Rule 21 governs petitions for extraordinary relief there, and Rule 21(a)(3) requires a petition to state why the petitioner has a clear and indisputable right to the writ and why there are inadequate alternative means to obtain the relief sought.

That route has a hard limit, and it is precedential rather than nonprecedential. In Wright v. Collins, No. 2025-1502 (Fed. Cir. Oct. 28, 2025), the court held that the Veterans Court lacked jurisdiction over an appeal from a Board remand and added that just as there is no colorable claim to an appeal of a Board decision that remands a veteran's claims to the regional office, there is no colorable claim to a writ of mandamus in the same circumstance. Mandamus cannot be used to leapfrog a remand and obtain the benefit directly, a conclusion the court reached in agreement with the Veterans Court's decision in Gardner-Dickson v. Wilkie, 33 Vet. App. 50 (2020).

What Wright did not close off is a delay theory. The Veterans Court in that case rejected an unreasonable-delay argument because of the short period of time since the remand order, which is a fact-bound reason rather than a categorical one. Wright offers no encouragement on its own facts, though: the Federal Circuit noted that Wright had not appealed the denial of a writ to compel the regional office to decide, and added that the contention was in any event without colorable merit. A delay claim rises or falls entirely on its own record.

The duty that does exist carries no clock. Under 38 U.S.C. 5109B, the Secretary must take such actions as may be necessary to provide for the expeditious treatment by the Veterans Benefits Administration of any claim the Board has remanded. That is a real obligation, but it fixes no number of days and attaches no automatic consequence when it is missed. The regulations add none either. Under 38 CFR 19.38, when a case is remanded by the Board, the agency of original jurisdiction will complete the additional development of the evidence or procedural development required, and the section sets no number of days for the agency to do it; the only numeric deadline in the section belongs to the claimant, who has 30 days to respond to a Supplemental Statement of the Case. 38 CFR 20.904, which governs when the Board remands or refers a matter, likewise attaches no deadline to the agency. A duty to be expeditious with no date attached and no self-executing remedy is why a stalled remand can stay stalled.

What Weight These Opinions Carry

Neither opinion makes new law, and both say so by their designation. Federal Circuit Rule 32.1 defines the category and its effect:

"(b) Nonprecedential Opinion or Order. An opinion or order which is designated as nonprecedential is one determined by the panel issuing it as not adding significantly to the body of law. (c) Parties' Citation of Nonprecedential Dispositions. Parties are not prohibited or restricted from citing nonprecedential dispositions. (d) Court's Consideration of Nonprecedential or Unpublished Dispositions. The court may refer to a nonprecedential or unpublished disposition in an opinion or order and may look to a nonprecedential or unpublished disposition for guidance or persuasive reasoning but will not give one of its own nonprecedential dispositions the effect of binding precedent."

So Butenhoff and Hooper may be cited, and the court may find them persuasive, but neither binds a future panel. The binding authority on this question is Kirkpatrick for the appealability rule and Wright for the mandamus limit. What the September 14 opinions add is application: two more records showing how the settled rule lands on real claims.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The story in these two opinions is not the holding. The holding has been the law since 2005, and the Federal Circuit reaffirmed the mandamus half of it in a precedential opinion less than a year ago. The story is the gap the rule leaves open, documented twice in a single day.

A finality rule is a reasonable way to keep one claim from generating five appeals. But its cost falls entirely on the stage with the least external supervision. A claim can be remanded, redeveloped, remanded again, and referred to an office the Board itself found never received the referral, and every one of those steps is invisible to a court because none of them grants or denies anything. Butenhoff filed in 2017 and, nine years later, has no decision a judge may review. Hooper's dental claim went through a referral directive in 2022 and was still being referred in 2025. Both records are consistent with a system where the absence of a decision, rather than a wrong decision, is the problem.

The doctrinal boundaries are not empty, though, and that deserves equal weight. A future record with different facts, longer inaction, or a remand directive ignored for years would arrive at a court that has already shown it will engage the due-process question rather than stop at jurisdiction, and under a rule where Board silence on a clearly presented claim can itself be reviewable.

There is a downstream consequence worth naming. Veterans who wait years without a reviewable decision are the exact audience unaccredited consultants target, and federal law limits who may charge a veteran for claim help. A long remand loop creates demand for a shortcut that does not exist, and these two opinions are a precise description of why it does not.

This is general legal information, not legal advice. It covers federal law governing appeals from the Board of Veterans' Appeals and reflects sources verified on September 16, 2026. Laws and case law change, and this story is developing. Consult a lawyer or a VA-accredited representative about your specific situation.

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Last updated: 2026-09-16. This is a developing story; details verified as of 2026-09-16.

Frequently Asked Questions

Can I appeal a VA Board remand?

Not as a remand standing alone. Under 38 U.S.C. 7252(a) the Court of Appeals for Veterans Claims reviews decisions of the Board, and Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed. Cir. 2005), holds that a remand granting or denying no relief is not a decision. The Federal Circuit applied that rule again on September 14, 2026 in Butenhoff v. Collins and Hooper v. Collins.

What is the difference between a VA remand and a denial?

A denial resolves the benefit sought against the claimant and is a final Board decision that can be appealed. A remand sends the claim back to the regional office for more evidence or further development and resolves nothing, so the claim stays inside the agency and no appeal right has arisen yet.

How long can the VA take after a Board remand?

No deadline is set. Under 38 U.S.C. 5109B the Secretary must provide for expeditious treatment of a claim the Board has remanded, but that duty fixes no number of days and carries no automatic consequence. The regulations add none: under 38 CFR 19.38 the agency of original jurisdiction completes the required development with no day count attached to it, and 38 CFR 20.904 imposes no post-remand deadline on the agency. The only numeric deadline in 38 CFR 19.38 is the claimant's 30 days to respond to a Supplemental Statement of the Case.

Does a remand use up my 120-day deadline to appeal?

No. Under 38 U.S.C. 7266(a) the 120-day period to file a notice of appeal runs from the date notice of a final Board decision issues under section 7104(e). A remand is not a final decision, so it neither starts nor consumes that window.

Is there ever a way to appeal when the Board says nothing about one of my claims?

Possibly. Butenhoff v. Collins acknowledges, citing Hepler v. Collins and Bean v. McDonough, that the Board's failure to discuss a claim the regional office denied and that was clearly presented to the Board may amount to an implicit denial and therefore a final decision. Butenhoff himself did not qualify, because the Board acknowledged and expressly reserved his additional conditions instead of going silent.

Can a veteran use mandamus to get around a Board remand?

Not to bypass the remand and obtain the benefit directly. In the precedential Wright v. Collins, No. 2025-1502 (Fed. Cir. Oct. 28, 2025), the Federal Circuit held that where there is no colorable claim to appeal a Board remand, there is likewise no colorable claim to a writ of mandamus in the same circumstance. The court did not rule out a fact-specific unreasonable-delay claim, which turns on the particular record.

Did these decisions say repeated remands violate due process?

The two panels handled it differently. Butenhoff assumed the veteran's due-process premise without deciding it, holding that a final Board decision is a jurisdictional prerequisite either way. Hooper reached the question and rejected it on the merits, concluding that a process of remands that continues to revive the claim did not deprive the veteran of notice and a fair opportunity to be heard.

Are nonprecedential Federal Circuit opinions binding?

No. Federal Circuit Rule 32.1(d) states that the court may look to a nonprecedential disposition for guidance or persuasive reasoning but will not give one of its own nonprecedential dispositions the effect of binding precedent. Rule 32.1(c) confirms parties may still cite them. The binding authority here is Kirkpatrick and Wright, not these two September 2026 opinions.

Do these rulings mean veterans cannot get into court at all?

No. Both holdings are narrow and turn on the specific order each veteran appealed. Final Board decisions remain appealable to the Veterans Court under 38 U.S.C. 7252(a), the implicit-denial route survives, and the Veterans Court retains its extraordinary-relief docket under 28 U.S.C. 1651(a) and its Rule 21.