Must VA Consider Evidence from a Separate Appeal? “In-Between” Evidence and Cash v. Collins

CCK Law: Our Vital Role in Veterans Law

In Cash v. Collins, 2024-1811, slip op. (Fed. Cir. Feb. 5, 2026), the U.S. Court of Appeals for the Federal Circuit reversed a decision of the Court of Appeals for Veterans Claims that had upheld the Board of Veterans’ Appeals’ refusal to consider probative evidence submitted during an “in-between” period under the Appeals Modernization Act (AMA). The Federal Circuit’s ruling meaningfully clarifies how evidence must be treated when a veteran timely and clearly identifies or incorporates that evidence on appeal, and it closes a procedural trap that had increasingly threatened to exclude relevant records from Board review.

The Dispute in Cash v. Collins: When Is Evidence “Submitted” Under the AMA?

The case arose from the Board’s strict reading of 38 U.S.C. § 7113(c), which governs the evidentiary record in Board appeals without a hearing but with an opportunity to submit additional evidence. The Board limited its review to evidence considered by the agency of original jurisdiction, evidence submitted with the notice of disagreement (NOD), and evidence submitted within ninety days after the NOD.

Mr. Cash had previously submitted medical articles and lay statements to the Board in a separate appeal. When he later appealed a different denial, he did not physically refile those materials. Instead, he explicitly directed the Board—in an addendum to his NOD—to review the evidence already in its possession because it directly supported the new appeal. The Board nonetheless refused to consider it, reasoning that the evidence had been submitted during the period between the agency decision and the NOD and therefore fell outside the permissible record.

The Veterans Court affirmed, relying on its earlier decision in Cook v. McDonough to conclude that evidence submitted during this “in-between” window could not be considered, even if it was referenced in the NOD.

The Federal Circuit’s Holding in Cash v. Collins

The Federal Circuit reversed. It held that where a claimant has already submitted evidence to the Board, and then timely and clearly incorporates or relies on that same evidence in a subsequent NOD, the statutory requirement that evidence be “submitted with” the NOD is satisfied. In other words, a veteran need not physically resubmit identical evidence that is already in the Board’s possession in order for it to be considered part of the record.

Critically, the court distinguished Cook. In Cook, the claimant did not reference the previously submitted evidence in the NOD at all. By contrast, Mr. Cash expressly directed the Board to review the earlier submission. That clear incorporation by reference was enough.

The Federal Circuit also grounded its interpretation in the structure and purpose of the AMA. Congress enacted the AMA to impose meaningful deadlines on the submission of new evidence and to reduce endless remands, not to exclude relevant evidence that was already before VA and timely identified by the claimant. Treating incorporated evidence as properly submitted does not undermine the AMA’s goals because it does not reopen the evidentiary record indefinitely or reimpose a duty to assist at the Board level.

The Implications of Cash v. Collins

First, Cash means that veterans will not lose the benefit of probative evidence simply because it was submitted in a different appeal stream or during an awkward procedural window, so long as they clearly identify and rely on it when appealing.

Second, by ensuring that the Board considers evidence that actually illuminates the claim, the decision reduces the likelihood of avoidable denials and remands driven by procedural formalism rather than substance.

Third, the decision promotes fairer claims decisions. The AMA was intended to modernize and streamline the system, not to create hidden traps for claimants navigating multiple review options. Cash reinforces that principle by aligning evidentiary rules with common sense and statutory purpose.

In short, the Federal Circuit has clarified that the AMA’s evidentiary framework is not a game of paperwork redundancy. When veterans timely and clearly point the Board to relevant evidence already in its possession, that evidence must be considered.