James Perciavalle v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
JAMES PERCIAVALLE,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1152
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-425, Judge Coral Wong Pietsch.
------------------------------------
JAMES M. KERNZ,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1171
______________________
Case: 24-1152 Document: 53 Page: 1 Filed: 04/03/2026

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PERCIAVALLE v. COLLINS 2
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-2365, Chief Judge Michael P.
Allen, Judge Amanda L. Meredith, Judge Coral Wong Pi-
etsch, Judge Grant Jaquith, Judge Joseph L. Falvey, Jr,
Judge Joseph L. Toth, Judge Margaret C. Bartley, Judge
Scott Laurer, Judge William S. Greenberg.
______________________
Decided: April 3, 2026
______________________
J OHN D. N ILES , Carpenter Chartered, Topeka, KS, ar-
gued for claimant-appellant James J. Perciavalle.
ADAM R. L UCK, GloverLuck, LLP, Dallas, TX, argued
for claimant-appellant James M. Kernz.
MEREDYTH C OHEN HAVASY , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellees.
Also represented by P ATRICIA M. MCCARTHY ; BRIAN M.
BOYNTON, L OREN MISHA P REHEIM in 24-1152; ERIC P.
BRUSKIN, YAAKOV R OTH in 24-1171; BRIAN D. G RIFFIN,
ANDREW J. STEINBERG, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________.
Before D YK, HUGHES , and STARK, Circuit Judges.
STARK, Circuit Judge.
We address here two appeals involving slight varia-
tions of a generally shared scenario. Each appellant-claim-
ant sought review by the Board of Veterans’ Appeals
(“Board”) of an unfavorable action by a Veterans Affairs
(“VA”) regional office (“RO”). The Board initially dismissed
the appeals as untimely, but did so based on a clearly
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PERCIAVALLE v. COLLINS 3
erroneous miscalculation of a filing deadline. After the af-
fected claimants filed notices of appeal in the Court of Ap-
peals for Veterans Claims (“Veterans Court”), seeking to
reverse the erroneous dismissals and have their cases re-
stored to the Board’s active review docket, the Board rec-
ognized its error and unilaterally restored the claimants’
cases to its docket, thereby providing the full extent of the
relief the claimants were then seeking in their pending
Veterans Court appeals.
The question these appeals present is whether, in such
circumstances, the Veterans Court may dismiss the ap-
peals before it as moot based on the Board’s sua sponte
grant of the entirety of the claimants’ requested relief. A
divided Veterans Court held that it could do so. The claim-
ants appeal that determination, arguing that the filing of a
notice of appeal to the Veterans Court immediately divests
the Board of jurisdiction, thereby rendering void the ac-
tions taken by the Board during the pendency of the Veter-
ans Court appeals.
For the reasons stated below, the claimants lack stand-
ing to pursue these appeals before this court. We therefore
lack jurisdiction and, accordingly, dismiss.
I
A
James M. Kernz served in the United States Army
from 1968 until 1970. In December 2016, a VA RO denied
Mr. Kernz’s claims for compensation for an aneurysm he
alleged was caused by purportedly negligent VA medical
care and for service connection disability benefits for de-
pression, kidney failure, and residuals of a stroke. On Au-
gust 9, 2017, Mr. Kernz filed a notice of disagreement,
thereby seeking Board review of the RO decision. The RO
issued a Statement of the Case (“SOC”) maintaining its de-
nial on December 18, 2019. On January 17, 2020, Mr.
Kernz timely appealed the RO decision to the Board via VA
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PERCIAVALLE v. COLLINS 4
Form 10182 (“10182 NOD”), which served as an election to
opt-in to the Appeals Modernization Act (“AMA”) system.
See 38 CFR. § 3.2400(c)(2).1 Mr. Kernz chose the evidence-
submission option for his appeal, which provided him 90
days from the date his 10182 NOD was received by the
Board to submit new evidence. See 38 U.S.C. § 7113(c)(2).
On March 24, 2020, the Board issued a letter stating
that Mr. Kernz’s appeal was untimely and dismissing it.
According to the letter, Mr. Kernz needed to opt into the
AMA system within either (1) 60 days of the date of the
SOC or (2) one year of the date of the VA decision he was
challenging, which the letter stated he failed to do. The
Board was obviously incorrect, as Mr. Kernz satisfied the
first of these options: he opted into the AMA system by sub-
mitting VA Form 10182 on January 17, 2020, which was
less than 60 days after the December 18, 2019 SOC. See
38 C.F.R. § 3.2400(c)(2).
Mr. Kernz filed a timely notice of appeal (“NOA”) to the
Veterans Court. In his NOA, Mr. Kernz made clear that
he was appealing the Board’s March 24, 2020 letter order,
which dismissed his Board appeal as untimely. This meant
the only relief he was, or could be, seeking from the Veter-
ans Court – and the only relief the Veterans Court could
grant – was to remand his case to the Board and allow him
to proceed there with his appeal from the adverse RO deci-
sion. While Mr. Kernz’s appeal of the Board’s erroneous
1 Congress passed the AMA in 2017 to streamline the
VA claims and appeals process, while also maintaining (for
appeals filed prior to February 19, 2019) what are referred
to as “legacy appeals.” Pub. Law 115-55, 131 Stat. 1105
(Aug. 23, 2017). The AMA provides a veteran seeking to
challenge a determination by an RO three options for
Board review: docket review, evidence submission, and
hearing.
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PERCIAVALLE v. COLLINS 5
dismissal of his appeal from the RO decision was pending
in the Veterans Court, the Board acted sua sponte and, in
two May 2020 letters, restored Mr. Kernz’s case to the
Board’s active docket.
In the meantime, Mr. Kernz’s Veterans Court appeal
also proceeded. In particular, the government filed a mo-
tion asking the Veterans Court to dismiss the appeal be-
cause, in its view, the Board’s March 2020 dismissal letter
was not a final appealable decision. A three-judge panel of
the Veterans Court heard oral argument on the govern-
ment’s motion on March 29, 2022. Thereafter, the motion
was submitted to the en banc court, which heard argument
on June 15, 2023.
On September 7, 2023, after the en banc hearing in the
Veterans Court but before that court resolved the govern-
ment’s motion to dismiss, the Board remanded Mr. Kernz’s
claims to the RO. On October 4, 2023, while the RO was
still processing the remand from the Board, the en banc
Veterans Court issued a split decision dismissing Mr.
Kernz’s appeal as moot. The six-judge majority (Judges Pi-
etsch, Allen, Meredith, Toth, Falvey, and Laurer) reasoned
that, under the Article III framework the Veterans Court,
an Article I tribunal, adopted in Mokal v. Derwinski, 1 Vet.
App. 12, 15 (1990), Mr. Kernz’s appeal was mooted by the
Board’s correction of its erroneous dismissal in May 2020.
The Veterans Court did not, therefore, decide whether the
Board’s March 2020 letter was a final appealable order.2
2 As the Veterans Court did not decide this issue, and
because Mr. Kernz lacks standing, we likewise do not de-
cide whether the March 2020 letter was an appealable or-
der. We recognize that, during the pendency of this appeal,
the Veterans Court decided in Cardoza v. McDonough,
37 Vet. App. 407 (2024), that the type of letter Mr. Kernz
received in March 2020 constitutes a final and appealable
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PERCIAVALLE v. COLLINS 6
The majority explained that “[t]he only substantive issue
on appeal to the [Veterans Court] – whether [Mr. Kernz’s]
VA Form 10182 was timely – has been fully resolved,” add-
ing that “[t]he Board’s May 2020 actions provided th[e] pre-
cise relief” Mr. Kernz requested in his appeal to the
Veterans Court. Kernz J.A. 10. “Therefore,” the court con-
cluded, “the appeal should be dismissed as moot.” Id.
Three judges dissented. Chief Judge Bartley, joined by
Judges Greenberg and Jaquith, took the view that the Vet-
erans Court appeal was “not about mootness” but was, in-
stead, “about the Board overstepping its jurisdiction and
acting in utter disregard of a veteran’s exercise of his right
to judicial review.” Kernz J.A. 20. Chief Judge Bartley’s
dissent emphasized the “unqualified transfer-of-jurisdic-
tion rule,” under which the filing of a notice of appeal to the
Veterans Court forecloses any action by the Board during
the pendency of the appeal. Kernz J.A. 21. This rule, Chief
Judge Bartley explained, “is necessary to prevent agency
interference with a veteran’s statutory right to judicial re-
view” and to “ensure the [Veterans Court’s] independent
exercise of review authority.” Id. Another dissenter, Judge
Jaquith, wrote separately to stress that any Board action
after the filing of a notice of appeal is void; that is, a legal
nullity that cannot be undone by subsequent judicial ac-
tion. Kernz J.A. 27.
Mr. Kernz then appealed to us. During the pendency
of our appeal, the government provided notice that, in the
remand from the Board, the VA RO granted nearly all of
the substantive claims Mr. Kernz had filed, denying only
his claim for service connection for his kidney failure, a de-
cision that is the subject of a separate, ongoing appeal.
order subject to review by the Veterans Court. See also
Kernz ECF No. 56 (notice of supplemental authority).
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PERCIAVALLE v. COLLINS 7
B
James J. Perciavalle is a non-attorney, VA-accredited
agent who is permitted to represent veterans before the
VA. His appeal involves his claim to fees from a successful
representation of a veteran who was ultimately awarded
past-due benefits.
Mr. Perciavalle filed a claim for fees with a VA RO,
seeking the 20% of the veteran’s award to which he was, in
his view, entitled under his fee agreement. On April 12,
2021, the RO denied Mr. Perciavalle’s claim. Mr. Per-
ciavalle then sought Board review by filing a 10182 NOD
on the same day. On September 30, 2021, however, the
Board issued an initial decision rejecting his appeal as un-
timely, due to an obvious miscalculation of his filing dead-
line. Mr. Perciavalle then filed a timely notice of appeal to
the Veterans Court on January 21, 2022, from the Board’s
September 30, 2021 dismissal order.
On May 19, 2022, while Mr. Perciavalle’s appeal was
pending before the Veterans Court, the Board sua sponte
reversed course on its earlier dismissal order and restored
his case to the Board’s active docket. Meanwhile, the gov-
ernment moved to dismiss Mr. Perciavalle’s Veterans
Court appeal as moot based on the Board’s reversal of its
dismissal order. While that motion was pending, the
Board, on August 2, 2022, issued a decision finding Mr.
Perciavalle eligible for the full 20% non-attorney fee he had
requested. Subsequently, back in the Veterans Court, on
August 30, 2022, court granted the government’s motion to
dismiss, concluding that Mr. Perciavalle’s appeal was moot
because the Board had already provided all the relief he
could possibly obtain – the full 20% non-attorney fee – so
even a favorable disposition in the Veterans Court could
not give him anything more.
When Mr. Perciavalle moved for a three-judge panel to
review the dismissal of his appeal, the Veterans Court in-
stead stayed his appeal pending the en banc resolution of
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PERCIAVALLE v. COLLINS 8
Kernz. Once the en banc court’s order dismissing Kernz is-
sued on October 4, 2023, the Veterans Court granted Mr.
Perciavalle’s request for review by a three-judge panel,
which then held that the decision in Kernz necessitated dis-
missal of Mr. Perciavalle’s appeal. The court reasoned that
a “reversal of the Board’s May 19, 2022, decision would not
provide him any more relief; it is not possible for the Court
to order the Board to take jurisdiction over his claim for
attorney fees when the Board has already done the same.”
Perciavalle J.A. 7. His timely appeal to us, in which he
“asks this Court to overturn Kernz,” followed. Perciavalle
Open. Br. at 12.
II
We agree with the parties that these appeals are within
our statutory jurisdiction to review veterans cases. Pursu-
ant to 38 U.S.C. § 7292(a),(d)(2), our appellate jurisdiction
to review decisions of the Veterans Court extends to issues
of law and, only in cases in which a nonfrivolous constitu-
tional question is presented, also to issues of fact and of
application of law to fact. Here, in particular, the parties
in both appeals agree that whether the Veterans Court
properly dismissed these appeals is a question of law,
which we review de novo. See Andre v. Principi, 301 F.3d
1354, 1358 (Fed. Cir. 2002); Hudson v. Principi, 260 F.3d
1357, 1362 (Fed. Cir. 2001).
While our appellate jurisdiction is unquestioned here,
we have a continuing, independent obligation to assure
ourselves of our subject matter jurisdiction. See Nat’l Org.
of Veterans’ Advocs., Inc. v. Sec’y of Veterans Affs., 981 F.3d
1360, 1368 (Fed. Cir. 2020). Article III of the United States
Constitution limits the judicial power to resolution of
“cases” and “controversies.” See Monk v. Shulkin, 855 F.3d
1312, 1316 (Fed. Cir. 2017) (holding that Article III limits
courts’ adjudicative authority to “actual and concrete dis-
putes, the resolutions of which have a direct consequence
on the parties”). Whether such a case or controversy exists
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PERCIAVALLE v. COLLINS 9
at the time the notice of appeal to this court is filed is the
principal concern of the requirement of standing. See In-
cyte Corp. v. Sun Pharm. Indus., Inc., 136 F.4th 1096, 1099
(Fed. Cir. 2025) (“An appellant must have standing at the
time of filing its appeal. [An appellant] must therefore es-
tablish standing as of . . . the date it filed its notice of ap-
peal.”) (citing Hollingsworth v. Perry, 570 U.S. 693, 705
(2013)). Whether a case or controversy continues to exist
throughout an appeal is the principal concern of the doc-
trine of mootness. See Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 189-93 (2000) (ex-
plaining that avoiding dismissal for mootness requires that
“‘[t]he requisite personal interest that must exist at the
commencement of the [appeal] (standing) . . . continue
throughout [the appeal’s] existence,’” subject to exceptions
for certain conduct capable of repetition yet evading review
and voluntary cessation by defendant) (quoting Arizonans
for Off. English v. Arizona, 520 U.S. 43, 68 n.22 (1997)).
The government argues that we lack jurisdiction over
these appeals both because appellants lack standing to
pursue them and because they are moot. We may address
these jurisdictional issues in either order and, if either
standing is missing or mootness is present, we need not ad-
dress both. See Friends of the Earth, Inc., 528 U.S. at 180
(deciding standing before addressing mootness issue); Ari-
zonans for Off. English, 520 U.S. at 66-67 (assuming stand-
ing arguendo and dismissing for mootness). Here we
choose to resolve the appeal on standing without determin-
ing if mootness also deprives us of jurisdiction.
To demonstrate standing, an appellant must have
“(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). An appel-
lant lacks standing to appeal where, for instance, the deci-
sion he seeks to appeal did not affect him “in a personal
and individual way,” Hollingsworth, 570 U.S. at 705-06
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PERCIAVALLE v. COLLINS 10
(internal quotation marks omitted); that is, where the ap-
pellant “lack[s] a legally cognizable interest in the out-
come” of the appeal, Chafin v. Chafin, 568 U.S. 165, 172
(2013). This includes circumstances where an appellant
“no longer had any injury to redress” once the tribunal un-
der review issued the appealed-from decision. Hol-
lingsworth, 570 U.S. at 705.
For the reasons we explain below, Mr. Perciavalle and
Mr. Kernz lack standing to pursue their respective appeals
before our court. Therefore, the parties have no remaining
case or controversy and we lack jurisdiction. Thus, we dis-
miss both appeals.
III
All of the issues presented in Mr. Perciavalle’s appeal
are also presented in Mr. Kernz’s, so we will first address
Mr. Perciavalle’s appeal. Then we turn to the additional
issues arising solely in Mr. Kernz’s case.
A
Mr. Perciavalle lacks standing because even a com-
pletely favorable disposition of his appeal to us would not
provide him with any effectual relief beyond what he al-
ready obtained from the Board by its post-notice of appeal
actions. There is no additional relief we can provide him
that he has not already received. Thus, he has no injury
we can redress in this appeal and, therefore, he has no
standing. Accordingly, we must dismiss.
Mr. Perciavalle insists he has standing because the
Board’s unilateral actions following his filing of an NOA
from the Board’s dismissal order are void, and not merely
voidable. To Mr. Perciavalle, then, the Board’s exercise of
jurisdiction during the pendency of his Veterans Court ap-
peal “is a legal nullity” that we must treat as if it never
happened. His position is predicated on the view that
38 U.S.C. § 7252’s grant of “exclusive jurisdiction” to the
Veterans Court means that once an NOA has been filed in
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PERCIAVALLE v. COLLINS 11
that court, the Board has no jurisdiction to act until the
conclusion of the appeal. See 38 U.S.C. § 7252(a) (“The
Court of Appeals for Veterans Claims shall have exclusive
jurisdiction to review decisions of the Board of Veterans’
Appeals.”). If, as Mr. Perciavalle requests, we treat the
Board’s post-NOA actions as void, then the Board’s award
of the full 20% non-attorney fee Mr. Perciavalle seeks is
void, and we are capable of providing him relief because the
Board’s dismissal ruling still stands.
The problem for Mr. Perciavalle is that there is simply
no effectual relief we can provide him that he has not al-
ready received from the Board – and, hence, he lacks a cog-
nizable injury in fact that is “likely to be redressed by a
favorable judicial decision.” Spokeo, 578 U.S. at 338. Our
dismissal of his appeal preserves his victory at the Board,
where his appeal from the RO was not only restored to the
Board’s docket; he was also subsequently granted the full
20% fee to which he claims to be entitled. If, instead, we
were to reverse the Veterans Court, as Mr. Perciavalle asks
us to do, the result would be, at best, an order remanding
to the Veterans Court to remand to the Board with instruc-
tions that the Board correct its untimeliness error and then
undertake additional proceedings. This would not provide
effectual relief for a particularized injury in fact. Mr. Per-
ciavalle may consider himself harmed by the Board ignor-
ing its jurisdictional mandate; however, because he
received all the substantive relief he requested prior to fil-
ing his appeal to this court, this perceived injury is insuffi-
cient to confer standing. See Lujan v. Defs. of Wildlife, 504
U.S. 555, 572-73 (1992) (allegations an agency did not fol-
low “a procedural requirement” are insufficient to confer
standing if plaintiff fails to allege “discrete injury flowing
from that failure”).
Mr. Perciavalle warns that failing to vacate the Veter-
ans Court’s dismissal of his appeal will lead to “procedural
chaos,” allowing the Board to exercise “dual or concurrent
jurisdiction” and thereby usurp the Veterans Court’s
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PERCIAVALLE v. COLLINS 12
“exclusive” authority over veterans’ claims following the fil-
ing of an NOA from a Board decision. Perciavalle Open.
Br. at 32-33. We are not persuaded. We are not approving
“dual or concurrent jurisdiction.” To the contrary, we agree
with Mr. Perciavalle that the Board and the Veterans
Court cannot simultaneously possess jurisdiction over the
same claim. When a veteran wishes to challenge a Board
decision, the veteran’s “exclusive” judicial forum for such a
challenge is, as Mr. Perciavalle rightly asserts, the Veter-
ans Court. See 38 U.S.C. § 7252(a). And, indeed, when the
Board acted to correct its erroneous timeliness determina-
tion here, it lacked jurisdiction to do so under Veterans
Court precedent. See Cerullo v. Derwinski, 1 Vet. App. 195,
196, 198-201 (1992) (holding Board had no jurisdiction to
order reconsideration of its decision after veteran filed
NOA with Veterans Court).3 All our dismissal of Mr. Per-
ciavalle’s appeal means is that we cannot, on the record be-
fore us, provide redress because he already received all the
relief he could potentially obtain from us.
Mr. Perciavalle insists that dismissal here is incon-
sistent with our decision in Zenith Electronics Corp.
v. United States, 884 F.2d 556 (Fed. Cir. 1989). We disa-
gree, as Zenith involved an appeal in which the appellant
had not yet received the full relief it was seeking in a then-
pending appeal, which left it possible that we might pro-
vide effectual relief (and redress some remaining injury) in
the form of a favorable decision. See Zenith, 884 F.2d at
559, 563 (affirming Court of International Trade injunction
prohibiting Department of Commerce from amending
3 The rule announced in Cerullo is consistent with the
general principle that an adjudicatory body may not act on
a matter once its judgment has been appealed to a review-
ing tribunal. See Jackson v. Nicholson, 449 F.3d 1204,
1208 (Fed. Cir. 2006); see also Griggs v. Provident Con-
sumer Disc. Co., 459 U.S. 56, 58-59 (1982).
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PERCIAVALLE v. COLLINS 13
results of administrative review during appeal where Com-
merce sought only to correct clerical errors and not to pro-
vide appellant the entire substantive relief it was seeking);
see also Kernz J.A. 11-16 & n.107 (distinguishing Zenith on
these same grounds). Zenith, therefore, addressed materi-
ally distinguishable circumstances.
Mr. Perciavalle does not have standing to pursue this
appeal. We must, therefore, dismiss it.
B
All that we have said in explaining why Mr. Per-
ciavalle’s appeal must be dismissed applies as well to Mr.
Kernz’s appeal. Because Mr. Kernz’s circumstances differ
from Mr. Perciavalle’s, albeit in a manner we deem imma-
terial to the standing question, and because he raises ar-
guments that Mr. Perciavalle does not, we address
Mr. Kernz separately.
1
The principal factual distinction Mr. Kernz attempts to
draw between his appeal and Mr. Perciavalle’s is that while
Mr. Perciavalle might be viewed as having received from
the Board the entirety of the relief he seeks – since the
Board’s post-NOA action granted him the full 20% non-at-
torney fee he claims – the Board has not granted Mr. Kernz
the entirety of the relief he is seeking. Mr. Kernz points to
two components of his claim on which he has not, to date,
prevailed: (a) clarity and confirmation as to the “eviden-
tiary window” available to him on remand, and (b) service
connection disability benefits for kidney failure. Mr. Kernz
claims that these factual distinctions make a legal differ-
ence because they demonstrate that a live controversy ex-
ists between him and the Secretary. These aspects of Mr.
Kernz’s case, however, do not alter our conclusion that he
lacks standing to press his appeal.
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PERCIAVALLE v. COLLINS 14
a
Mr. Kernz contends that because the Board’s correction
of its error with respect to timeliness led to “confusion” re-
garding the proper period during which he could submit
new evidence pursuant to 38 U.S.C. § 7113, there is a case
or controversy for us to resolve. We disagree, however, be-
cause this argument does not account for the fact that the
only issue properly presented to the Veterans Court in Mr.
Kernz’s NOA was the timeliness of his Board appeal.
As noted above, § 7113 provides a veteran like Mr.
Kernz, who chooses the AMA’s “evidence submission” path-
way for review, a period of 90 days from the date his
Form 10182 NOD is received by the Board in which to sub-
mit new evidence that the Board must then consider as
part of his appeal. According to Mr. Kernz, when the Board
unilaterally restored his case to its active docket it created
“confusion” as to whether the evidentiary window was open
and, if so, when it would close. Even worse, he continues,
ultimately the Board decided not to accept any of his new
evidence. He has a live case or controversy, he posits, be-
cause he needs a judgment from the Veterans Court or this
court directing the Board to consider his new evidence and
to limit the new evidence to “the evidentiary record he se-
lected.” Kernz Reply Br. at 26.4
The Veterans Court declined to address the new evi-
dence issue because the only issue presented by
Mr. Kernz’s NOA was the timeliness of his appeal to the
4 At oral argument, counsel added that Mr. Kernz was
harmed because he wants to exclude certain evidence the
government submitted, although he admits that this issue
could be the subject of a subsequent notice of appeal to the
Board, the Veterans Court, and this court. Oral Arg.
at 5:02-5:45.
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PERCIAVALLE v. COLLINS 15
Board.5 Mr. Kernz has no standing to pursue that timeli-
ness issue on appeal in this court because Mr. Kernz has
already received the entirety of the relief he could have
hoped to be granted by prevailing in this appeal.
Any “confusion” as to the window for Mr. Kernz to sub-
mit new evidence, or any challenge Mr. Kernz may wish to
press with respect to the Board’s subsequent refusal to con-
sider Mr. Kernz’s new evidence, was not raised in his NOA
to the Veterans Court and, hence, was not part of Mr.
Kernz’s appeal to this court. As the Veterans Court cor-
rectly observed, “[t]he only substantive issue on appeal to
the [Veterans Court] – whether [Mr. Kernz]’s VA Form
10182 was timely – has been fully resolved.” Kernz J.A. 10.
Issues that are not actually presented in an appeal cannot
give rise to a live case or controversy. Since the only issue
presented to the Veterans Court was resolved by the time
the Veterans Court ruled in Mr. Kernz’s appeal, we must
dismiss his appeal. If Mr. Kernz wishes to appeal the evi-
dence-related issues he has raised with us, he will need to
do so via another appeal.6
b
Mr. Kernz additionally suggests that his appeal pre-
sents a live case or controversy because the Board’s post-
NOA actions did not grant the entirety of his claims for ser-
vice connection disability benefits. Although the Board
5 Mr. Kernz’s NOA to the Veterans Court is not part of
our record, but can be found as the first docket entry in the
Veterans Court docket sheet. See J.A. 32.
6 Counsel for Mr. Kernz, as well as government counsel,
expressly agreed that Mr. Kernz has other appellate op-
tions to press these issues. Oral Arg. at 3:55-6:10, 20:57-
22:02.
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PERCIAVALLE v. COLLINS 16
corrected its erroneous dismissal of his appeal from the RO,
and granted him service connection for several disabilities
(aneurysm, depression, residuals of stroke), it denied his
claim for service connection for kidney failure. Thus, un-
like Mr. Perciavalle, whom as far as the record reveals has
no active dispute with any part of the VA, Mr. Kernz is still
litigating against the Secretary over whether he is entitled
to additional disability benefits.
This distinction makes no difference as to whether
Mr. Kernz has standing to litigate the current appeal be-
fore us. The merits of Mr. Kernz’s claim for kidney failure
service connection disability benefits was not the subject of
the Board’s March 24, 2020 order erroneously dismissing
his Board appeal and, hence, was not an issue before the
Veterans Court. Nor is it an issue presented in Mr. Kernz’s
appeal to us.7
2
Mr. Kernz points out that when Congress enacted the
AMA, it made no provision for concurrent “dual plenary ju-
risdiction” in the Board and the Veterans Court. It follows,
according to Mr. Kernz, that Congress expressed its ap-
proval for the Veterans Court holding in Cerullo, 1 Vet.
App. at 196-97, which rejected such “dual jurisdiction.”
This argument was waived, as Mr. Kernz did not raise it
until his reply brief. See Rodriguez v. Dep’t of Veterans
Affs., 8 F.4th 1290, 1296 (Fed. Cir. 2021) (“[I]ssues not ad-
dressed in the argument section of a party’s opening brief
are considered waived.”). In any event, as we explained
7 As with his challenge to the Board’s handling of the
“evidentiary window” issue, Mr. Kernz may still have ap-
pellate rights with respect to the Board’s denial of his claim
for kidney failure service connection. Our decision today in
no way impacts whether those rights remain available to
him.
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PERCIAVALLE v. COLLINS 17
above, see supra III.A, neither we nor the Veterans Court
is approving any such “dual jurisdiction,” and our decision
does not disturb the Veterans Court’s jurisprudence, in-
cluding Cerullo, establishing the general rule the Board
does not have authority to alter a judgment while that
judgment is pending appeal before the Veterans Court.
IV
We have considered Mr. Perciavalle’s and Mr. Kernz’s
remaining jurisdictional arguments and find they lack
merit. Appellants lack standing to appeal to this court. Ac-
cordingly, their appeals are dismissed.
DISMISSED
COSTS
Each party to bear its own costs.
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