Cash v. Collins

• Court: Court of Appeals for the Federal Circuit
• Decided: February 5, 2026
• Docket: 24-1811
• Status: Published

Opinion

Case: 24-1811 Document: 52 Page: 1 Filed: 02/05/2026

United States Court of Appeals for the Federal Circuit ______________________

ROBERT L. CASH, Claimant-Appellant

v.

DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2024-1811 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 22-7371, Judge William S. Green- berg. ______________________

Decided: February 5, 2026 ______________________

JOHANNAH CASSEL-WALKER, Hogan Lovells US LLP, San Francisco, CA, argued for claimant-appellant. Also represented by STEPHANIE JEANNE COSTELLO, Berry Law, Lincoln, NE.

MARTIN F. HOCKEY, JR., Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for respondent-appellee. Also repre- sented by ERIC P. BRUSKIN, PATRICIA M. MCCARTHY, YAAKOV ROTH; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Case: 24-1811 Document: 52 Page: 2 Filed: 02/05/2026

Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Before LOURIE, REYNA, and CHEN, Circuit Judges. CHEN, Circuit Judge. Mr. Robert L. Cash, a U.S. Navy veteran, appeals from a decision by the United States Court of Appeals for Veter- ans Claims (Veterans Court) affirming the denial of his ser- vice-connected benefits claim. Cash v. McDonough, No. 22- 7371, 2024 WL 678196, at *1 (Vet. App. Feb. 20, 2024) (De- cision). In denying Mr. Cash’s claim, the Board of Veter- ans’ Appeals (Board) refused to consider evidence Mr. Cash had previously submitted to the Board in February 2022 in an appeal for a different claim, even though Mr. Cash clearly referred to his prior evidentiary submission in an addendum to his Notice of Disagreement (NOD) for his cur- rent claim. In the Board’s view, the Board needed to re- ceive a copy of that evidence again for it to be deemed properly “submitted” for the Board’s consideration in Mr. Cash’s current claim. See 38 U.S.C. § 7113(c)(2). Be- cause we determine that Mr. Cash satisfied the statutory evidentiary submission requirement by clearly and timely referring to his prior submission to the Board in his Notice of Disagreement (NOD) addendum, we reverse. BACKGROUND Mr. Cash served on active duty as a member of the U.S. Navy from January 1958 to February 1961. Decision, 2024 WL 678196, at *2. While on active duty, Mr. Cash was ex- posed to lead paint as an assembler aboard a U.S. Navy ship. J.A. 116. After leaving service, Mr. Cash was diag- nosed with asthma, chronic obstructive pulmonary disease (COPD), gastroesophageal reflux disease (GERD), and an enlarged prostate. Mr. Cash sought benefits for those con- ditions in multiple claims. Decision, 2024 WL 678196, at *2. Case: 24-1811 Document: 52 Page: 3 Filed: 02/05/2026

CASH v. COLLINS 3

In September 2014, Mr. Cash filed his first claim for service-connected benefits for asthma and COPD. He re- applied in June 2016. In February 2022, during an appeal to the Board, Mr. Cash submitted evidence consisting of medical articles linking lead exposure to COPD and vari- ous other conditions in addition to sworn statements in support of his claim for asthma and COPD (February 2022 evidence). In March 2019, Mr. Cash filed the service-connected benefits claim leading to this appeal. His claim was for his prostate and GERD conditions, which he indicated were secondary to COPD. After his claims were initially denied by the regional office (RO), Mr. Cash filed supplemental claims for the conditions in July 2020 and attached cita- tions to a paper that supported a possible connection be- tween COPD and the two conditions. The RO again denied his appeal, because the evidence was “not new and rele- vant.” Decision, 2024 WL 678196, at *2 (citing J.A. 643– 47). Mr. Cash requested higher-level review of the RO’s decision, and in July 2021, a decision review officer denied the supplemental claims. On June 20, 2022, Mr. Cash appealed the July 2021 de- cision denying claims related to his prostate and GERD conditions by filing a NOD1 directly to the Board. See J.A. 28. He selected the Board appeal track where he could sub- mit additional evidence without a hearing under 38 U.S.C. § 7105(b)(3)(B). In an addendum attached to the NOD, Mr. Cash directed the Board to the February 2022 evi- dence, which Mr. Cash had submitted to the Board earlier that year in support of his appeal of his asthma and COPD claim. J.A. 29–36. Specifically, Mr. Cash asked the Board to “review the evidence he submitted in support of his

1 Under 38 U.S.C. §7105(a), appellate (Board-level) review of a ratings decision is initiated by filing a notice of disagreement form. See 38 U.S.C. §5104C(a). Case: 24-1811 Document: 52 Page: 4 Filed: 02/05/2026

claims for the other conditions because they relate to his claim for these conditions.” J.A. 30. The Board issued an order on November 3, 2022, deny- ing Mr. Cash’s appeal on the grounds that “new and rele- vant evidence ha[d] not been presented.” J.A. 14. The Board further stated that: [I]n adjudicating the claims on appeal, the Board may consider evidence associated with the record prior to the July 2021 [rating decision] and evi- dence submitted by the Veteran within 90 days of his June 2022 VA Form 10182 [NOD form]. Id. at 15. Hence, because the February 2022 evidence was submitted to the Board before Mr. Cash filed his NOD, the Board declined to review it. Mr. Cash appealed the Board decision to the Veterans Court, arguing the Board erred in refusing to consider his complete file because he had “properly submitted his Feb- ruary 2022 evidence with his [NOD] by directing the Board to evidence that was already in the Board’s possession.” Appellant Br. 15 (emphasis added). The Veterans Court recounted that Mr. Cash had sub- mitted evidence in February 2022 and filed his NOD in June 2022. Decision, 2024 WL 678196, at *3. The court acknowledged that Mr. Cash had, through counsel, submit- ted the evidence and then “referenced the evidence when filing [his] NOD.” Id. However, the Veterans Court deter- mined that it was bound by the decision in Cook v. McDonough, 36 Vet. App. 175 (2023). Id. According to the Veterans Court, Cook established a rule that 38 U.S.C. §§ 7113(c)(1) and 7113(c)(2)(A) “together plainly exclude from the evidentiary record before the Board evidence sub- mitted during the period between the issuance of the AOJ [agency of original jurisdiction] decision and the filing of the NOD.” Id. (alteration in original) (quoting Cook, 36 Vet. App. at 184). Because the February 2022 evidence was Case: 24-1811 Document: 52 Page: 5 Filed: 02/05/2026

CASH v. COLLINS 5

submitted to the Board during this prohibited, in-between period, the Veterans Court held the Board did not err in refusing to consider it. Id. at *3–4. Mr. Cash appeals2 the Veterans Court decision. We have jurisdiction under 38 U.S.C. § 7292. STANDARD OF REVIEW Our jurisdiction over appeals from the Veterans Court is limited. Absent a constitutional issue, this court “may not review the Veterans Court’s factual findings or its ap- plication of law to facts.” Singleton v. Shinseki, 659 F.3d 1332, 1334 (Fed. Cir. 2011). But, “we may ‘review and de- cide any challenge to the validity of any statute or regula- tion or any interpretation thereof’ and ‘interpret constitutional and statutory provisions, to the extent pre- sented and necessary to a decision.’” Lynch v. McDonough, 21 F.4th 776, 779 (Fed. Cir. 2021) (en banc) (citing 38 U.S.C. § 7292(c)). We review legal determinations by the Veterans Court de novo. Murphy v. Wilkie, 983 F.3d 1313, 1317 (Fed. Cir. 2020). In cases of statutory interpretation, this court employs “the traditional tools of statutory construction; we examine the statute’s text, structure, and legislative history, and apply the relevant canons of interpretation.” Wright v. Col- lins, 145 F.4th 1336, 1339–40 (Fed. Cir. 2025) (alteration

2 While this appeal was pending, Mr. Cash at- tempted to pursue relief through filing a supplemental claim for his prostate and GERD conditions. See J.A. 2283–90. In so doing, he incorporated the February 2022 evidence as part of the record before the RO. Id. At oral argument, Mr. Cash’s counsel stated that the supple- mental claim was recently denied at the RO, and Mr. Cash has not yet appealed the claim to the Board. See Oral Arg. at 1:00–1:10, 1:42–2:00, available at https://www.cafc. uscourts.gov/oral-arguments/24-1811_10062025.mp3. Case: 24-1811 Document: 52 Page: 6 Filed: 02/05/2026

in original) (quoting Cook v. Wilkie, 908 F.3d 813, 817 (Fed. Cir. 2018)). Our analysis includes “read[ing] the statutory language in context.” Id. at 1340 (quoting Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 199 (1993)). DISCUSSION Mr. Cash first argues that the Board erred in refusing to consider the February 2022 evidence because it was properly “submitted with the notice of disagreement.” Ap- pellant Br. 32–33 (citation and internal quotation marks omitted). Mr. Cash argues that directing the Board to doc- uments that he had already submitted to the Board and were in his claim file at the time of filing his NOD effec- tively served as a submission of the evidence with the NOD. Mr. Cash offers several dictionary definitions of “submit” to support his position—each of which, Mr. Cash argues, suggest a broader definition than “literally de- posit[ing] a document with an adjudicator.” Appellant Br. 34. I In 2017, Congress enacted the Veterans Appeals Im- provement and Modernization Act (AMA), reforming the veterans benefits appeals system. Pub. L. No. 115-55, 131 Stat. 1105. The AMA established “three procedural lanes to obtain review of [a veteran’s] claim within one year of the initial decision” at the RO. Mil.-Veterans Advoc. v. Sec’y of Veterans Affs., 7 F.4th 1110, 1119 (Fed. Cir. 2021) (citing 38 U.S.C. § 5104C(a)(1)). “Each lane has varying limitations on the submission of new evidence and the VA’s duty to assist the claimant in obtaining such evidence.” Id. One such lane allows for an appeal directly to the Board, which a claimant “initiates by filing a NOD within one year of the AOJ’s initial decision.” Id. This pathway allows claimants to submit additional evidence and request a Board hearing, but claimants must “specify in the NOD their intention to add to the record and submit the Case: 24-1811 Document: 52 Page: 7 Filed: 02/05/2026

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additional evidence within a certain time frame (i.e., within 90 days of the NOD’s filing or the Board hearing).” Id. Starting with the statutory text, 38 U.S.C. § 7113(c) governs the evidentiary record before the Board in cases such as Mr. Cash’s appeal, i.e., “cases with no request for a hearing and with a request for additional evidence.” 38 U.S.C. § 7113(c) (capitalization removed). In such cases, § 7113(c) limits the evidentiary record to: (1) “evi- dence considered by the [AOJ] in the decision on appeal,” (2) “[e]vidence submitted . . . with the notice of disagree- ment,” and (3) “[e]vidence submitted . . . within 90 days fol- lowing receipt of the notice of disagreement.” Id. In statutory construction cases, we “‘interpret the words [of a statute] consistent with their ordinary meaning at the time’ of adoption.” Ortiz v. McDonough, 6 F.4th 1267, 1276 (Fed. Cir. 2021) (quoting Wisconsin Cent. Ltd v. United States, 585 U.S. 274, 277 (2018)). Mr. Cash argues that the ordinary meaning of “submit” is “to present or re- fer to others for decision, consideration, etc.” Appellant Br. 34 (emphasis removed) (quoting submit, WEBSTER’S NEW WORLD COLLEGE DICTIONARY (5th ed. 2014)). In contrast, the Secretary contends the ordinary meaning of “submit” is “to formally send a document, plan, etc.” Appellee Br. 28 (quoting submit, CAMBRIDGE DICTIONARY, https://diction- ary.cambridge.org/dictionary/english/submit). Because our decision is the same under either definition of “submit,” we will apply the Secretary’s narrower definition for pur- poses of this appeal. When a claimant submits a physical copy of evidence to the Board in a first appeal, as Mr. Cash did here, and then timely and clearly relies on that same evidence al- ready in the Board’s possession in a second Board appeal, the claimant has complied with the “submission” require- ment and need not deliver a second copy of the evidence, even under the Secretary’s narrower definition of “submit.” Case: 24-1811 Document: 52 Page: 8 Filed: 02/05/2026

By incorporating the previously-sent-to-the-Board evi- dence by reference, the claimant has “formally sen[t]” the evidence to the Board. In this case, that means Mr. Cash submitted his February 2022 evidence to the Board with his NOD. The legislative history of the statute supports this un- derstanding. A central purpose of the AMA was to provide a deadline when new evidence could be added in a proceed- ing before the Board, beyond which time new evidence could not be introduced for consideration. One major prob- lem with the legacy system was that it allowed claimants to “submit new evidence at virtually any time prior to a fi- nal Board decision” leading to a high percentage of Board appeals being remanded for the RO to consider new evi- dence. Mil.-Veterans Advoc., 7 F.4th at 1118. In establishing various appellate lanes, Congress sought to create a more orderly system that places clear restrictions against adding new evidence late in the pro- cess, thereby giving the Board greater certainty as to the evidentiary record’s contents when deciding an appeal. See id. at 1119. The facts here are consistent with that goal, because the February 2022 evidence was in the Board’s possession before Mr. Cash filed his NOD, which is well be- fore the statutory deadline for adding evidence during a Board appeal. See 38 U.S.C. § 7113(c)(2)(B) (“Evidence submitted . . . within 90 days following the receipt of the notice of disagreement.”). Thus, his submission—and clear reference to that submission with his NOD—does not en- gender the types of evidentiary issues (e.g., delayed sub- missions) the AMA was intended to prevent. Accordingly, we determine that Mr. Cash’s February 2022 evidence Case: 24-1811 Document: 52 Page: 9 Filed: 02/05/2026

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qualifies as evidence submitted with Mr. Cash’s NOD un- der 38 U.S.C. § 7113(c)(2)(A).3 The Veterans Court erred in determining that its Cook decision bound its analysis in this case. In Cook, the claim- ant, like Mr. Cash, submitted evidence to the Board in the period between his last rating decision and filing his NOD. See Cook, 36 Vet. App. at 180–81. However, when Mr. Cook filed his NOD to the Board, he did not make any reference to the previously sent evidence, and so the Board did not consider it. Id. at 181. On appeal to the Veterans Court, Mr. Cook argued that because the new evidence was in his file at the time of submission, it was submitted “with” his NOD under 38 U.S.C. § 7113(c)(2). Id. Finding nothing to support Mr. Cook’s interpretation of “with,” the Veter- ans Court excluded his evidence for being untimely. Id. at 186–90. Here, unlike Mr. Cook’s NOD, Mr. Cash’s NOD in- cluded a clear request for the Board to consider evidence Mr. Cash had already submitted to the Board. Because of the prior submission to the Board, Mr. Cash satisfied the submission requirement of 38 U.S.C. § 7113(c)(2) through his NOD addendum, which clearly requested that the Board consider the February 2022 evidence already sub- mitted by Mr. Cash and in the Board’s possession. See De- cision, 2024 WL 678196, at *3 (summarizing the content of the February 2022 evidence); Appellee Br. 6 (same). II

3 Because we determine Mr. Cash properly submit- ted the February 2022 evidence with his NOD under 38 U.S.C. § 7113(c)(2), we need not address Mr. Cash’s argu- ments relating to constructive possession doctrine. Case: 24-1811 Document: 52 Page: 10 Filed: 02/05/2026

Given our disposition of the appeal, we need not decide the arguments raised by the parties over the full scope of the meaning of “submitted” in 38 U.S.C. § 7113(c). For ex- ample, the Secretary argues that a broader definition of “submit”—one which encompasses a claimant’s identifica- tion of and reference to any documents that may exist somewhere—would “reimpos[e] a duty to assist in Board appeals” which was eliminated by the AMA. See Appellee Br. 29, 32–33. The Secretary further notes that other Title 38 statutes use “identify” instead of “submit” to demonstrate when the duty to assist is imposed upon the VA. The Secretary con- tends that because Title 38 uses both words, “this Court should presume the terms have different meanings.” Ap- pellee Br. 29. Mr. Cash, on the other hand, points out that Title 38 also uses the word “file” with regards to the NOD itself, indicating that “submit” should have a separate meaning from “file.” See 38 U.S.C. § 7105(a) (“Appellate review shall be initiated by the filing of the notice of disagreement”) (emphasis added). In Mr. Cash’s view, the Secretary’s in- terpretation of “submit” cannot be correct because it blurs the distinction between that term and “file.” As noted above, to reach our conclusion, we need not determine the precise meaning of each of “submit,” “iden- tify,” and “file.” We leave that interpretative question for another case that requires its resolution. CONCLUSION We have reviewed the Secretary’s other arguments and find them unpersuasive. We find the February 2022 evidence was properly sub- mitted with Mr. Cash’s Notice of Disagreement. For the foregoing reasons, we reverse the decision of the Veterans Court. Case: 24-1811 Document: 52 Page: 11 Filed: 02/05/2026

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REVERSED COSTS Costs to Appellant.