Federal Circuit Dismisses VA Waiver Appeal in Evans v. Collins

The Federal Circuit dismissed Mary L. Evans's veterans benefits appeal on November 9, 2026, holding it had no jurisdiction to review how the Veterans Court applied waiver law to her briefing. The precedential opinion confirms that, absent a constitutional issue, a Veterans Court waiver ruling is not reviewable under 38 U.S.C. 7292.

Information last verified on November 11, 2026.

Status: Precedential opinion, Evans v. Collins, No. 2025-1403, decided November 9, 2026 by the U.S. Court of Appeals for the Federal Circuit on appeal from the Court of Appeals for Veterans Claims, No. 23-7133. The court dismissed the appeal in full for lack of jurisdiction and ordered no costs. Under 38 U.S.C. 7292(c) a Federal Circuit judgment in a veterans case is final subject to Supreme Court review on certiorari in the manner provided by 28 U.S.C. 1254. The opinion also records two paths the government acknowledged on the VA side: Board reconsideration under 38 C.F.R. 20.1002 for obvious error of fact, and readjudication at the VA regional office on changed facts.

Jurisdiction scope: This article addresses federal veterans benefits appeals through the Board of Veterans' Appeals, the Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit. That federal path applies nationwide. It does not address state-run veterans benefit programs, which have their own appeal routes.

What Happened

Wilbert Evans served in the U.S. Marine Corps from March 1960 to March 1964. Stationed in Japan as a postal clerk, he contended he was required to fly to Vietnam to deliver mail roughly twice a week. In 2004 he filed disability claims for multiple myeloma and diabetes based in part on alleged herbicide exposure in Vietnam, and the VA regional office denied them that year for lack of service connection. Later efforts to reopen, plus new claims for residuals of head trauma and bilateral hearing loss, were denied again, most recently in September 2022. His surviving spouse, Mary L. Evans, appealed to the Board of Veterans' Appeals, which on July 27, 2023 granted service connection for multiple myeloma based on exposure to contaminated water at Camp Lejeune in North Carolina, and denied service connection for Type II diabetes mellitus, head trauma residuals and bilateral hearing loss.

Ms. Evans took the diabetes denial to the Veterans Court. Her opening brief stated she was appealing the Board's denial of her deceased husband's Type II diabetes mellitus claim, and argued the Board wrongly found no evidence corroborating his Vietnam service. On October 25, 2024 the Veterans Court agreed and reversed that denial. A footnote recorded that the Board's grant of service connection for multiple myeloma was a favorable finding the court would not disturb, and that the head trauma and hearing loss issues were dismissed because Ms. Evans raised no arguments about them.

She then moved for reconsideration, arguing that the determination her husband served in Vietnam, if applied to the multiple myeloma claim, would produce an earlier effective date. On November 19, 2024 the Veterans Court denied the motion, observing that she never asked it to set aside and remand the Board's grant of service connection for myeloma, that her arguments and request for relief focused on diabetes, that myeloma appeared in her opening brief only in the statement of facts, and that her reply brief did not mention it at all. The court concluded the myeloma arguments were waived. Ms. Evans appealed that denial.

On appeal she offered two jurisdictional theories: that the Veterans Court misread the favorable-finding doctrine drawn from 38 U.S.C. 7261(a)(4), and that its waiver determination rested on a misinterpretation of law rather than a factual finding. The Federal Circuit rejected both. On the first, it found the record showed the denial rested on waiver rather than on the favorable-finding doctrine, and that even if the court's remark could be read as a statutory interpretation, 38 U.S.C. 7292(a) permits review only of an interpretation the Veterans Court relied on in making its decision. On the second, it treated the dispute as the routine application of settled waiver law to these facts.

"In reality, we have repeatedly held that review of waiver determinations by the Veterans Court lies outside the bounds of our narrow statutory jurisdiction." Source: Evans v. Collins, No. 2025-1403, slip op. at 7 (Fed. Cir. Nov. 9, 2026)

The opinion also devotes a passage to counsel's citations. It records that Ms. Evans originally cited Magyar v. Principi, 349 F.3d 1329, 1332-33 (Fed. Cir. 2003), which the court states is a case that does not exist; that a corrected reply brief filed September 7, 2026 replaced it with Sears v. Principi at the same reporter citation, which the court states never mentions waiver or forfeiture; and that at oral argument counsel could not explain how the nonexistent case entered the brief or supply any authority for the proposition it was cited for.

"Lawyers should be mindful that use of artificial intelligence or other tools that results in hallucinated citations appearing in briefs to this court could impact their continued practice before the court." Source: Evans v. Collins, No. 2025-1403, slip op. at 7 (Fed. Cir. Nov. 9, 2026)

The disposition was short. "Because we lack jurisdiction, we must dismiss," the court wrote, entering a dismissal with no costs. Evans v. Collins, No. 2025-1403, slip op. at 8-9.

What the Law Actually Says

Federal veterans benefits claims move through three tiers, and each tier reviews less than the one below it. A VA regional office decides first. The Board of Veterans' Appeals reviews that decision within the agency. The Court of Appeals for Veterans Claims then has exclusive jurisdiction to review Board decisions, on the record made before the Secretary and the Board, with power to affirm, modify, reverse or remand under 38 U.S.C. 7252(a) and (b). Its scope of review is set by 38 U.S.C. 7261, which lets it decide questions of law and set aside a material fact finding adverse to the claimant if that finding is clearly erroneous.

The Federal Circuit sits above the Veterans Court, and its window is narrow by design. Under 38 U.S.C. 7292(a) a party may obtain review of the validity of a Veterans Court decision on a rule of law, or of any statute or regulation or any interpretation of one, other than a determination as to a factual matter, that was relied on by that court in making its decision. Section 7292(c) gives the Federal Circuit exclusive jurisdiction over challenges to the validity of a statute or regulation or an interpretation of one, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision. Section 7292(d)(2) then shuts the door on two categories: absent a constitutional issue, the court may not review a challenge to a factual determination, or a challenge to a law or regulation as applied to the facts of a particular case.

The effective date is the other half of this story, because it determines how much is actually paid. Under 38 U.S.C. 5110(a)(1) the effective date of an award on an initial or supplemental claim is fixed in accordance with the facts found but, unless the chapter provides otherwise, no earlier than the date the application was received. The implementing regulation at 38 C.F.R. 3.400 repeats that general rule, and for presumptive service connection under 38 C.F.R. 3.307, 3.308 and 3.309 sets the date entitlement arose if the claim arrived within a year of separation, and otherwise the later of claim receipt or the date entitlement arose. Because benefits run from that date forward, moving it earlier is what produces retroactive pay. Our guide to how far back a VA award reaches once an effective date is set walks through that arithmetic.

Which presumption establishes service connection can matter to that date. Multiple myeloma appears on two separate presumptive lists: the herbicide list at 38 C.F.R. 3.309(e), which attaches to service in the Republic of Vietnam between January 9, 1962 and May 7, 1975 under 38 C.F.R. 3.307(a)(6)(iii), and the Camp Lejeune contaminated water list at 38 C.F.R. 3.309(f), which attaches to at least 30 days of qualifying service there between August 1, 1953 and December 31, 1987 under 38 C.F.R. 3.307(a)(7)(iii). Type 2 diabetes, listed there as Type II diabetes mellitus, appears on the herbicide list at 3.309(e) but not on the eight-condition Camp Lejeune list at 3.309(f). Separately, 38 C.F.R. 3.114(a) provides that where compensation is awarded or increased under a liberalizing law or VA issue, the effective date is fixed on the facts found but no earlier than the effective date of that act or issue, with the retroactive reach then limited by the one-year rules in 3.114(a)(1) through (3). The Evans opinion does not explain the mechanism behind Ms. Evans's assertion that a Vietnam-based grant would yield an earlier effective date for the myeloma claim; it records only that she made the assertion.

Because Ms. Evans was pressing her late husband's claim, two further provisions frame who may do that. Section 5121 of title 38 directs payment of accrued benefits due and unpaid at a beneficiary's death to the living person first listed, beginning with the veteran's spouse, and requires an application within one year after the date of death. Section 5121A lets a person eligible for accrued benefits request, within one year of the claimant's death, to be substituted as the claimant to process a pending claim or appeal to completion.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The jurisdictional architecture Congress built in 38 U.S.C. 7292(d)(2) means that for most claimants the Veterans Court is the last court that will look at their particular facts. The Federal Circuit decides what a rule means; it does not decide whether a rule was correctly applied to one record. Evans sits squarely in that second category, which is why the opinion reads less like a close call than like a restatement, and why the court cited Andre v. Principi, 301 F.3d 1354, 1362-64 (Fed. Cir. 2002) and Carbino v. West, 168 F.3d 32, 34-35 (Fed. Cir. 1999) rather than reasoning from first principles.

That allocation puts unusual weight on the opening brief at the Veterans Court. Outside the veterans system, a forfeiture ruling is generally reviewable by the court above. Under section 7292(d)(2) that second step is unavailable in veterans cases, because the forfeiture call is an application of law to fact. The practical result is that the scope of a Veterans Court appeal is effectively fixed by the document that opens it, with no court of appeals above positioned to revisit how that scope was read absent a constitutional issue.

The citation passage is worth noting on its own terms, mainly for where the court chose to put it. The warning about artificial intelligence and hallucinated citations is not framed as a ruling on this appeal, and it did not have to appear in the opinion at all; the court had already ordered counsel to be prepared to discuss the citation at oral argument, which is a docket-level step. Writing the warning into a precedential opinion instead makes it a citable statement of the court's expectations rather than a note confined to one case file. The court imposed no sanction in this opinion and made no finding about how the nonexistent case entered the brief; counsel, the opinion says, could not answer that question at argument.

Finally, the effective-date dispute underneath all of this is a reminder that service connection and the date it runs from are separate questions with separate stakes. A claimant can win the first outright and still be arguing about the second for years, and under 38 U.S.C. 5110(a)(1) and 38 C.F.R. 3.400 the second is what determines how much is actually paid.

How This Affects You

Claimants and representatives in federal veterans appeals generally face a two-part structure worth understanding before briefing begins. Issues raised in an opening brief to the Veterans Court define what that court treats as before it; issues left out can be found waived or forfeited, and the Federal Circuit has said repeatedly that it lacks jurisdiction to review those determinations under 38 U.S.C. 7292(d)(2). A favorable Board finding also is not automatically reopened by a later court ruling on a different condition, as 38 U.S.C. 7261(a)(4) limits the Veterans Court to setting aside fact findings adverse to the claimant.

Effective dates are where benefit decisions translate into dollars. Under 38 U.S.C. 5110(a)(1) and 38 C.F.R. 3.400, an award generally cannot start before the application was received, so the date attached to a grant sets the start of any retroactive payment. A grant made under a liberalizing law or VA issue is further limited by 38 C.F.R. 3.114(a), which bars an effective date earlier than that issue took effect. Claimants weighing which review route fits their situation can compare the review lanes VA makes available after a rating decision, and the Evans opinion itself notes that the government pointed to Board reconsideration under 38 C.F.R. 20.1002 for obvious error of fact and to regional office readjudication on changed facts as avenues that remained. At oral argument government counsel stated that, in all likelihood, the earlier effective date would be granted on one of those routes; the Federal Circuit recorded that statement without adopting it, and nothing in the opinion decides the point.

Representation matters at every tier, and the rules on who may be paid to assist are specific. Our explainer on the fee rules and accreditation checks that govern paid claims help covers how to verify anyone offering it. Anyone with a pending federal veterans appeal should consult an accredited representative or an attorney about their own record rather than reasoning from another claimant's docket.

This is general legal information, not legal advice. It covers the federal veterans benefits appeal system of the United States, including the Board of Veterans' Appeals, the U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit, and reflects sources verified on November 11, 2026. It does not address state veterans benefit programs. Laws and regulations change; consult an accredited representative or an attorney licensed in your jurisdiction about your specific situation.

Related articles

• An overview of VA disability ratings, pay rates and how claims are decided
• When VA pays at the 100 percent rate without a 100 percent rating

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Last updated: 2026-11-11. Details verified as of 2026-11-11.

Frequently Asked Questions

What did the Federal Circuit decide in Evans v. Collins?

It dismissed the appeal for lack of jurisdiction in a precedential opinion issued November 9, 2026, No. 2025-1403, and ordered no costs. The court held that reviewing how the Veterans Court applied waiver law to Ms. Evans's briefing would be a review of law applied to particular facts, which 38 U.S.C. 7292(d)(2) forbids.

Can the Federal Circuit review a Veterans Court waiver ruling?

The opinion states the court has repeatedly held that review of Veterans Court waiver determinations lies outside its narrow statutory jurisdiction, citing Andre v. Principi, 301 F.3d 1354, 1362-64 (Fed. Cir. 2002), and it saw no basis to depart from that understanding. Slip op. at 7 to 8.

Is the Evans v. Collins opinion precedential?

Yes. The Federal Circuit's opinions and orders listing for November 9, 2026 labels case 25-1403, Evans v. Collins, as a precedential opinion originating from the Court of Appeals for Veterans Claims.

What does 38 U.S.C. 7292 let the Federal Circuit review in veterans cases?

Section 7292(a) allows review of the validity of a Veterans Court decision on a rule of law, or of a statute or regulation or an interpretation of one, other than a determination as to a factual matter, that the Veterans Court relied on in making its decision. Section 7292(d)(2) bars review of a factual determination or of a law or regulation as applied to the facts of a particular case, absent a constitutional issue.

Why would an earlier effective date have mattered here?

Effective dates set when payments begin. Under 38 U.S.C. 5110(a)(1) and 38 C.F.R. 3.400 an award is generally fixed on the facts found but no earlier than the date the application was received, so an earlier date produces more retroactive pay. The opinion records that Ms. Evans asserted a Vietnam-based grant would yield an earlier date for the myeloma claim, but does not explain the mechanism.

What happened with the citation to Magyar v. Principi?

The opinion states that Ms. Evans's reply brief cited Magyar v. Principi, 349 F.3d 1329, 1332-33 (Fed. Cir. 2003), a case that does not exist, that a corrected brief filed September 7, 2026 substituted Sears v. Principi at the same citation although Sears never mentions waiver or forfeiture, and that counsel could not explain the error at oral argument. Slip op. at 7.

Did the Federal Circuit sanction the lawyer?

The opinion imposes no sanction. It states that lawyers should be mindful that use of artificial intelligence or other tools resulting in hallucinated citations in briefs to the court could impact their continued practice before the court. Slip op. at 7.

What options did the opinion say remained after the dismissal?

It records that the government acknowledged Ms. Evans could seek reconsideration of the Board decision under 38 C.F.R. 20.1002 based on an obvious error of fact, or request readjudication from the VA regional office based on changed facts. The court added that concerns about delay cannot create jurisdiction it otherwise lacks. Slip op. at 8.

Can a surviving spouse pursue a deceased veteran's VA claim?

Federal law provides two routes. 38 U.S.C. 5121 directs accrued benefits due and unpaid at death to the living person first listed, starting with the veteran's spouse, on an application filed within one year of the death. 38 U.S.C. 5121A lets an eligible person request substitution as the claimant within one year of the claimant's death to process a pending claim or appeal to completion.

Is a Federal Circuit dismissal the end of the line?

As a matter of procedure, 38 U.S.C. 7292(c) provides that the judgment of the Federal Circuit is final subject to review by the Supreme Court on certiorari in the manner provided by 28 U.S.C. 1254. The opinion itself records no further steps in the case.