Robert Cash appealed the denial of service-connected benefits for prostate and GERD conditions that he asserted were secondary to COPD. The relevant AMA posture was a Board appeal track permitting additional evidence, and Cash’s NOD addendum expressly directed the Board to medical articles and sworn statements he had already submitted to the Board in a separate February 2022 appeal. The Board refused to consider that evidence because it had been submitted before the NOD rather than with the NOD, and the Veterans Court affirmed under Cook v. McDonough.

The Federal Circuit reversed. Reading 38 U.S.C. § 7113(c) in context and with ordinary meaning, the court held that Cash’s clear and timely reference to previously submitted evidence in his NOD addendum constituted submission with the NOD because the evidence was already in the Board’s possession. The court emphasized the AMA’s purpose of creating orderly evidentiary deadlines, but concluded that Cash’s approach did not create the late-submission problems Congress sought to prevent. The court distinguished Cook because that claimant did not reference the prior evidence in his NOD. The panel therefore held that the Board erred in refusing to consider the February 2022 evidence and reversed the Veterans Court.

For purposes of 38 U.S.C. § 7113(c)(2)(A), evidence already submitted to the Board may qualify as evidence “submitted with the notice of disagreement” when the claimant timely and clearly incorporates that evidence by reference in the NOD or an attached addendum.

A claimant does not necessarily have to physically re-file evidence already in the Board record to satisfy the AMA Board lane’s submission requirement; a clear, timely incorporation by reference can be enough.

This case limits overly rigid evidentiary-formalism in AMA Board appeals. It gives veterans and advocates a practical way to preserve evidence already in the Board file while still meeting the NOD-based submission requirement, reducing the risk that the Board excludes material evidence based on duplicative-filing technicalities.

Refusing to consider previously submitted evidence because it was not physically re-filed with the NOD despite a clear reference to it in the NOD addendum.

A veteran submits medical articles to the Board in one appeal, then files a second Board appeal and states in the NOD addendum that the Board should consider those same articles because they are already in the Board record. Under Cash, that referenced evidence may count as submitted with the NOD.

Use Cash to argue that a timely, specific reference to evidence already in the Board’s possession satisfies § 7113(c)(2)(A), especially where the Board rejects evidence solely because it was not attached again. The case is also useful for distinguishing Cook when the claimant’s NOD actually incorporates the earlier evidence.

Cook v. McDonough, Mil.-Veterans Advoc. v. Sec’y of Veterans Affs., Wright v. Collins, Ortiz v. McDonough, Lynch v. McDonough, Murphy v. Wilkie