Kisor v. Wilkie

Case: 16-1929 Document: 71 Page: 1 Filed: 08/12/2020
United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. KISOR,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1929
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2811, Judge Alan G. Lance, Sr.
______________________
Decided: August 12, 2020
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
ETHAN P. DAVIS, ROBERT EDWARD KIRSCHMAN, JR., MARTIN
F. HOCKEY, JR.; Y. KEN LEE, SAMANTHA ANN SYVERSON, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
Case: 16-1929 Document: 71 Page: 2 Filed: 08/12/2020
2 KISOR v. WILKIE
Before REYNA, SCHALL, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge SCHALL.
Dissenting opinion filed by Circuit Judge REYNA.
SCHALL, Circuit Judge.
INTRODUCTION AND DECISION
In Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (“Ki-
sor I”), we affirmed the decision of the United States Court
of Appeals for Veterans Claims (“Veterans Court”) in Kisor
v. McDonald, No. 14-2811, 2016 WL 337517 (Vet. App. Jan
27, 2016) (“Veterans Court Decision”). In that decision, the
Veterans Court affirmed the April 29, 2014 decision of the
Board of Veterans’ Appeals (“Board”) that denied Mr. Kisor
an effective date earlier than June 5, 2006, for the grant of
service connection for his post-traumatic stress disorder
(“PTSD”). Id. at *1.
In its decision, the Board held that Mr. Kisor was not
entitled to an earlier effective date under 38 C.F.R.
§ 3.156(c)(1). J.A. 78–91. That regulation states that the
Department of Veterans Affairs (“VA”) will reconsider a
claim after a final decision if it receives “relevant official
service department records that existed and had not been
associated with the claims file when VA first decided the
claim.” 38 C.F.R. § 3.156(c)(1). The regulation further
states that “[a]n award made based all or in part on the
records identified by [§ 3.156(c)(1)] is effective on the date
entitlement arose or the date VA received the previously
decided claim, whichever is later.” Id. § 3.156(c)(3).
In Mr. Kisor’s case, the Board concluded that two ser-
vice department records, which were received in 2006 and
2007, were not “relevant” under the regulation because
they did not pertain to the basis of the 1983 denial of Mr.
Kisor’s claim, which was the lack of a diagnosis of PTSD.
J.A. 85, 89, 90. Rather, they pertained to whether Mr.
Case: 16-1929 Document: 71 Page: 3 Filed: 08/12/2020
KISOR v. WILKIE 3
Kisor was in combat in “Operation Harvest Moon,” a mili-
tary operation in Vietnam in 1965. In that regard, when it
denied Mr. Kisor’s claim, the VA Regional Office (“RO”) had
before it a VA psychiatric examiner’s report that recited
Mr. Kisor’s account of his participation in Operation Har-
vest Moon, see J.A. 19–20, and the RO did not dispute that
account. The Board reasoned that the documents would
not have changed the “outcome” of the VA’s 1983 decision,
which was based on the lack of “a diagnosis of PTSD,” be-
cause they bore on a matter relating to entitlement to ser-
vice connection for PTSD that was not in dispute: the
presence of an in-service stressor. Id. at 90–91. The Board
thus denied Mr. Kisor an effective date earlier than June
5, 2006, for a grant of service connection for his PTSD. J.A.
91. June 5, 2006 was the date Mr. Kisor submitted a re-
quest to reopen his claim, which the VA granted. J.A. 34.
Pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(q)–
(r), as in effect in 2014, the effective date of the grant of
service connection for Mr. Kisor’s reopened claim was the
date he submitted his request to reopen.
In our prior decision, we held that the Board had not
erred in construing the term “relevant” as it appears in
§ 3.156(c)(1). In reaching that holding, we concluded that
the term “relevant” was ambiguous and had more than one
reasonable meaning. Kisor I, 869 F.3d at 1367–68. We
therefore deferred, under Auer v. Robbins, 519 U.S. 452,
461 (1997), to the Board’s interpretation of the term, which
we found to be reasonable. Kisor I, 869 F.3d at 1367–69.
The case is now before us again on remand from the
Supreme Court. See Kisor v. Wilkie, 139 S. Ct. 2400 (2019)
(“Kisor II”). In Kisor II, the Court held that, in Kisor I, we
were too quick to extend Auer deference to the Board’s in-
terpretation of “relevant” as it appears in § 3.156(c)(1). The
Court therefore vacated our decision and remanded the
case to us with the instruction that we decide whether Auer
deference “applies to the agency interpretation at issue.”
139 S. Ct. at 2408. The Supreme Court stated that “[f]irst
Case: 16-1929 Document: 71 Page: 4 Filed: 08/12/2020
4 KISOR v. WILKIE
and foremost, a court should not afford Auer deference un-
less the regulation is genuinely ambiguous.” Id. at 2415.
The Court directed us on remand “to determine, based on
indicia like text, structure, history, and purpose, whether
the regulation really has more than one reasonable mean-
ing.” Id. at 2424.
For the reasons stated below, we now conclude that, in
the setting of § 3.156(c)(1), the term “relevant” is not “gen-
uinely ambiguous.” Id. at 2415. Accordingly, Auer defer-
ence is not appropriate in this case. In our view, in the
context of § 3.156(c)(1), the term “relevant” has only “one
reasonable meaning,” the meaning the Board attributed to
it. As the Board determined, under the regulation, in order
to be “relevant,” a record must speak to a matter in issue,
in other words, a matter in dispute. We therefore once
again affirm the decision of the Veterans Court that af-
firmed the decision of the Board denying Mr. Kisor entitle-
ment under § 3.156(c)(1) to an effective date earlier than
June 5, 2006, for his PTSD.
BACKGROUND
I.
The pertinent facts are as follows: Mr. Kisor served on
active duty in the Marine Corps from 1962 to 1966. Veter-
ans Court Decision, 2016 WL 337517, at *1. In December
of 1982, he filed an initial claim for disability compensation
benefits for PTSD with the VA RO in Portland, Oregon. Id.
Subsequently, in connection with the claim, the RO re-
ceived a February 1983 letter from David E. Collier, a coun-
selor at the Portland Vet Center. J.A. 17. In his letter, Mr.
Collier stated: “[I]nvolvement in group and individual
counseling identified . . . concerns that Mr. Kisor had to-
wards depression, suicidal thoughts, and social with-
draw[a]l. This symptomatic pattern has been associated
with the diagnosis of Post-Traumatic Stress Disorder.” Id.
Case: 16-1929 Document: 71 Page: 5 Filed: 08/12/2020
KISOR v. WILKIE 5
In March of 1983, the RO obtained a psychiatric exam-
ination for Mr. Kisor. In his report, the examiner noted
that Mr. Kisor had served in Vietnam. The examiner also
noted that Mr. Kisor recounted that he had participated in
Operation Harvest Moon; that he was on a search opera-
tion when his company came under attack; that he re-
ported several contacts with snipers and occasional mortar
rounds fired into his base of operation; and that he “was
involved in one major ambush which resulted in 13 deaths
in a large company.” J.A. 19–20. The examiner did not
diagnose Mr. Kisor as suffering from PTSD, however. Ra-
ther, it was the examiner’s “distinct impression” that Mr.
Kisor suffered from “a personality disorder as opposed to
PTSD.” Id. at 21. The examiner diagnosed Mr. Kisor with
intermittent explosive disorder and atypical personality
disorder. Id. Such conditions cannot be a basis for service
connection. See 38 C.F.R. § 4.127. Given the lack of a cur-
rent diagnosis of PTSD, the RO denied Mr. Kisor’s claim in
May of 1983. J.A. 23. The RO decision became final after
Mr. Kisor initiated, but then failed to perfect, an appeal.
Veterans Court Decision, 2016 WL 337517, at *1.
II.
On June 5, 2006, Mr. Kisor submitted a request to reo-
pen his previously denied claim for service connection for
PTSD. J.A. 25. While his request was pending, he pre-
sented evidence to the RO. This evidence included a July
20, 2007 report of a psychiatric evaluation diagnosing
PTSD, as well as a copy of the February 1983 letter from
the Portland Vet Center. See J.A. 17, 100–11. The evi-
dence also included service personnel records that had not
been before the RO in 1983. These records included a copy
of Mr. Kisor’s Department of Defense Form 214 (subse-
quently corrected in 2007 to note, inter alia, a Combat Ac-
tion Ribbon); and a Combat History, Expeditions, and
Awards Record documenting his participation in Operation
Harvest Moon. See J.A. 27–29. The RO also located an
additional record it did not consider in 1983: a daily log
Case: 16-1929 Document: 71 Page: 6 Filed: 08/12/2020
6 KISOR v. WILKIE
from Mr. Kisor’s unit, the 2nd Battalion, 7th Marines. J.A.
30–31. In June of 2007, the RO made a Formal Finding of
Information Required to Document the Claimed Stressor.
This was based on Mr. Kisor’s statements; on his service
medical records (which verified his service in Vietnam with
the 2nd Battalion, 7th Marines); and on the daily log from
his battalion, which detailed the combat events Mr. Kisor
had previously described in connection with his claim. J.A.
30–31. In September of 2007, a VA examiner diagnosed
Mr. Kisor with PTSD. J.A. 115.
In due course, the RO issued a rating decision reopen-
ing Mr. Kisor’s previously denied claim. The decision
granted Mr. Kisor service connection for PTSD and as-
signed a 50 percent disability rating, effective June 5, 2006.
Veterans Court Decision, 2016 WL 337517, at *1. Accord-
ing to the decision, the rating was based upon evidence that
included the July 2007 psychiatric evaluation report diag-
nosing PTSD, the September 2007 VA examination, and
the Formal Finding of Information Required to Document
the Claimed Stressor. J.A. 32–33. The RO explained that
service connection was warranted because the VA exami-
nation showed that Mr. Kisor was diagnosed with PTSD
due to experiences that occurred in Vietnam and because
the record showed that he was “a combat veteran (Combat
Action Ribbon recipient).” J.A. 33.
In November of 2007, Mr. Kisor filed a Notice of Disa-
greement. In it, he challenged both the 50 percent disabil-
ity rating and the effective date assigned by the RO.
Veterans Court Decision, 2016 WL 337517, at *1. Subse-
quently, in March of 2009, the RO issued a decision in-
creasing Mr. Kisor’s schedular rating to 70 percent. In
addition, the RO granted Mr. Kisor an extraschedular en-
titlement to individual unemployability, effective June 5,
2006. J.A. 41–45. In January of 2010, the RO issued a
Statement of the Case denying entitlement to an earlier ef-
fective date for the grant of service connection for PTSD.
See J.A. 53–65.
Case: 16-1929 Document: 71 Page: 7 Filed: 08/12/2020
KISOR v. WILKIE 7
III.
Mr. Kisor appealed to the Board. Although not raised
by Mr. Kisor, the Board considered whether the records Mr.
Kisor submitted in connection with his June 5, 2006 re-
quest to reopen and the additional record located by the RO
warranted reconsideration of his claim under 38 C.F.R.
§ 3.156(c)(1). If it did, then Mr. Kisor would be eligible for
an effective date for his disability benefits of December of
1982, “the date VA received the previously decided claim.’’
38 C.F.R. § 3.156(c)(3).
After reviewing the evidence, the Board denied Mr. Ki-
sor entitlement to an effective date earlier than June 5,
2006. J.A. 91. The Board found that the VA did receive
service department records documenting Mr. Kisor’s par-
ticipation in Operation Harvest Moon after the May 1983
rating decision. J.A. 89–90. As noted above, the Board con-
cluded, though, that the records were not ‘‘relevant’’ for
purposes of § 3.156(c)(1). J.A. 90. The Board explained
that the 1983 rating decision denied service connection be-
cause there was no diagnosis of PTSD, and because service
connection can be granted only if there is a current disabil-
ity. Id. (citing Brammer v. Derwinski, 3 Vet. App. 223
(1992)). The Board stated that ‘‘relevant evidence, whether
service department records or otherwise, received after the
rating decision would suggest or better yet establish that
the Veteran has PTSD as a current disability.’’ Id. The
Board noted that Mr. Kisor’s ‘‘service personnel records
and the daily [Battalion] log skip this antecedent to ad-
dress the next service connection requirement of a trau-
matic event during service.’’ Id. Finally, the Board
concluded with the observation that the records at issue
were not ‘‘outcome determinative’’ and ‘‘not relevant to the
decision in May 1983 because the basis of the denial was
that a diagnosis of PTSD was not warranted, not a dispute
as to whether or not the Veteran engaged in combat with
the enemy during service.’’ J.A. 90–91.
Case: 16-1929 Document: 71 Page: 8 Filed: 08/12/2020
8 KISOR v. WILKIE
DISCUSSION
I.
As noted, this case is before us on remand from the Su-
preme Court. On remand, we asked the parties to provide
us with their views as to how we should proceed in view of
the Court’s decision in Kisor II. In response, both Mr. Kisor
and the government take the position that the term “rele-
vant,” as it appears in 38 C.F.R. § 3.156(c), is not “genu-
inely ambiguous” and that therefore Auer deference is not
appropriate. See Appellant’s Suppl. Br. 4 (“In this case, the
term ‘relevant’ as used by the Secretary in 38 C.F.R.
§ 3.156(c) is not ‘genuinely ambiguous.’”); Appellee’s Suppl.
Br. 4 (“A thorough examination of the text, purpose, struc-
ture, and history of 38 C.F.R. § 3.156(c) demonstrates that
our reading of ‘relevant’ in that subsection is the only rea-
sonable reading of the regulation.”).
Mr. Kisor’s view is that the only reasonable reading of
the regulation is that a service department record is “rele-
vant” if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the ac-
tion more probable or less probable than it would be with-
out the evidence.” Appellant’s Suppl. Br. 9–10 (quoting
Counts v. Brown, 6 Vet. App. 473, 476 (1994)). In other
words, Mr. Kisor reasons that a service record is “relevant”
if it constitutes evidence probative of any fact necessary to
substantiate a veteran’s claim, even if the matter to which
the record speaks is not in dispute. The government’s view
is that the only reasonable reading of the term “relevant”
in § 3.156(c) is that, in order to be relevant, a record must
“address a dispositive issue and therefore . . . affect the
outcome of the proceeding.” Appellee’s Suppl. Br. 14. The
government reasons that, in order for a record to affect the
outcome of the proceeding it “must speak to the basis for
the VA’s prior decision.” Id. at 16. That was not the case
here because the basis for the VA’s prior decision was the
absence of a diagnosis of PTSD, not the absence of an in-
Case: 16-1929 Document: 71 Page: 9 Filed: 08/12/2020
KISOR v. WILKIE 9
service stressor (participation in combat). Thus, while the
parties both take the position that “relevant,” as it appears
in the regulation, is not genuinely ambiguous, they advo-
cate different meanings for the term.
As explained below, we too conclude that the term “rel-
evant” in § 3.156(c) is not genuinely ambiguous. At the
same time, we agree with the government that, in the con-
text of the regulation, the term has only one reasonable
meaning. To be relevant, a record must address a disposi-
tive issue and therefore affect the outcome of the case. As
the Board determined, the record must speak to a matter
in issue, in other words, a matter in dispute. In this case,
in 1983 the VA denied Mr. Kisor’s claim for service connec-
tion for PTSD because he had not been diagnosed with
PTSD, not because of the absence of an in-service stressor.
Indeed, in this case, the presence of an in-service stressor
has never been disputed. As the Supreme Court pointed
out, “[t]he report of the agency’s evaluating psychiatrist
noted [Mr.] Kisor’s involvement in . . . battle” during Oper-
ation Harvest Moon. Kisor II, 139 S. Ct. at 2409. For this
reason, we again affirm the decision of the Veterans Court
that affirmed the decision of the Board denying Mr. Kisor
an effective date earlier than June 5, 2006, for service con-
nection for his PTSD.
II.
Establishing service connection for a PTSD claim re-
quires (1) a medical diagnosis of PTSD; (2) “a link, estab-
lished by medical evidence, between [the] current
symptoms and an in-service stressor”; and (3) “credible
supporting evidence that the claimed in-service stressor oc-
curred.” AZ v. Shinseki, 731 F.3d 1303, 1310 (Fed. Cir.
2013) (quoting 38 C.F.R. § 3.304(f)).
A veteran can seek to revise a Board denial of a claim
for disability benefits through different procedures. First,
Board decisions are subject to review to determine whether
a clear and unmistakable error exists under 38 U.S.C.
Case: 16-1929 Document: 71 Page: 10 Filed: 08/12/2020
10 KISOR v. WILKIE
§§ 7111, 5109A, and 38 C.F.R. § 20.1400. Second, before
amendments promulgated in 2019, a claimant could reopen
a claim by submitting “new and material evidence” under
former 38 U.S.C. § 5108 and 38 C.F.R. § 3.156. See Garcia
v. Wilkie, 908 F.3d 728, 732–33 (Fed. Cir. 2018) (citing
Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en
banc)). As noted, in 2006, Mr. Kisor sought to reopen his
claim for PTSD. Benefits awarded pursuant to a reopened
claim under the former statutory and regulatory frame-
work were granted an effective date no earlier than the
date of the request for reopening. 38 U.S.C. § 5110 (2012),
38 C.F.R. § 3.400(q)–(r) (2006); see also Sears v. Principi,
349 F.3d 1326, 1331 (Fed. Cir. 2003). 1
1 Under the Veterans Appeals Improvement and
Modernization Act of 2017, Pub. L. 115-55 (“Modernization
Act”), veterans may now file “supplemental claims” based
on “new and relevant” evidence. 38 U.S.C. § 5108 (2019);
38 C.F.R. §§ 3.156(d), 3.2501 (2019). Section 3.2501 defines
“relevant evidence” as “information that tends to prove or
disprove a matter at issue in a claim [and] includes evi-
dence that raises a theory of entitlement that was not pre-
viously addressed.” 38 C.F.R. § 3.2501. The comments
accompanying the proposed rule explained that the defini-
tion of “relevant evidence” came from 38 U.S.C. § 101(35).
VA Claims and Appeals Modernization, 83 Fed. Reg.
39,818, 39,822 (proposed Aug. 10, 2018). The comments
accompanying the final rule explain that the “new and rel-
evant” standard for supplemental claims is “a lesser stand-
ard and reduces the claimant’s burden” as compared to the
prior “new and material” standard. VA Claims and Ap-
peals Modernization, 84 Fed. Reg. 138, 144 (Jan. 18, 2019)
(codified at 38 C.F.R. pts. 3, 8, 14, 19, 20, and 21). The
earliest effective date for an award of disability benefits
pursuant to a supplemental claim is the date the
Case: 16-1929 Document: 71 Page: 11 Filed: 08/12/2020
KISOR v. WILKIE 11
For claims based upon “new and material evidence”
filed before 2019, such as Mr. Kisor’s, 38 C.F.R. § 3.156(a)
defined “new evidence” as ‘‘existing evidence not previously
submitted to agency decisionmakers.’’ ‘‘Material’’ evidence
was defined under the same subsection as ‘‘existing evi-
dence that, by itself or when considered with previous evi-
dence of record, relates to an unestablished fact necessary
to substantiate the claim.” The regulation goes on to ex-
plain that “[n]ew and material evidence can be neither cu-
mulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened, and must raise a reasonable possibility of sub-
stantiating the claim.” 38 C.F.R. § 3.156(a).
Third, a veteran may seek to have the VA reconsider a
previously-denied claim under 38 C.F.R. § 3.156(c)(1). 2
Section 3.156(c)(1) reads today as it did in 2006 and in 2014
when the Board considered Mr. Kisor’s case. As noted
above, the regulation states that the VA will reconsider a
claim after a final decision if it receives “relevant official
service department records that existed and had not been
associated with the claims file when VA first decided the
claim.” 38 C.F.R. § 3.156(c)(1). 3 The regulation further
states that “[a]n award made based all or in part on the
records identified by [§ 3.156(c)(1)] is effective on the date
supplemental claim was filed. 38 U.S.C. § 5110 (2019); 38
C.F.R. §§ 3.400, 3.2500(h)(2) (2019).
2 In this case, Mr. Kisor did not explicitly seek recon-
sideration, but the Board considered reconsideration under
§ 3.156(c) when it addressed his request for an earlier ef-
fective date for service connection for PTSD. J.A. 88.
3 Recently, in Jones v. Wilkie, we addressed a claim
under § 3.156(c)(1). However, in that case, the government
did not dispute that the newly associated records were “rel-
evant” and that reconsideration was required. 964 F.3d
1374, 1379 n.5 (Fed. Cir. 2020).
Case: 16-1929 Document: 71 Page: 12 Filed: 08/12/2020
12 KISOR v. WILKIE
entitlement arose or the date VA received the previously
decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3).
“In other words, § 3.156(c) serves to place a veteran in the
position he would have been had the VA considered the rel-
evant service department record before the disposition of
his earlier claim.” Blubaugh v. McDonald, 773 F.3d 1310,
1313 (Fed. Cir. 2014).
Unlike the “new” and “material” terms defined in
§ 3.156(a), § 3.156(c) does not provide a definition for the
term “relevant.” However, the context of § 3.156(c) makes
clear that, in order to be “relevant” for purposes of recon-
sideration, additional records must speak to the basis for
the VA’s prior decision. Specifically, the effective date for
an award under § 3.156(c) is retroactive to the “date enti-
tlement arose or the date VA received the previously de-
cided claim” only if the award is “based all or in part on”
the newly identified records. § 3.156(c)(3). Duplicative rec-
ords and records directed to an undisputed fact would not
speak to the basis for the VA’s prior decision; a claimant
filing such records thus could not obtain an award “based
all or in part on” the newly identified records. In this case,
the records at issue did not speak to the basis for the VA’s
prior decision: the absence of a diagnosis of PTSD.
Moreover, in the context of veteran’s benefits, we have
explained that “relevant” evidence is evidence that “must
tend to prove or disprove a material fact.” AZ, 731 F.3d at
1311; see also Black’s Law Dictionary (10th ed. 2014) (de-
fining “relevant” as “[l]ogically connected and tending to
prove or disprove a matter in issue”). Similarly, the VA’s
duty to assist claimants under 38 U.S.C. § 5103A mandates
that the VA make reasonable efforts to obtain “relevant”
records, but this does not encompass the situation in which
“no reasonable possibility exists that such assistance would
aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2);
see Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010)
(“Relevant records for the purpose of [38 U.S.C.] § 5103A
are those records that relate to the injury for which the
Case: 16-1929 Document: 71 Page: 13 Filed: 08/12/2020
KISOR v. WILKIE 13
claimant is seeking benefits and have a reasonable possi-
bility of helping to substantiate the veteran’s claim.”). Con-
versely, evidence that “simply does not tend to prove a fact
that is of consequence to the action[] . . . is not relevant.”
AZ, 731 F.3d at 1311 (quoting 2 Jack B. Weinstein & Mar-
garet A. Berger, Weinstein’s Federal Evidence § 401.07 (2d
ed. 2012)). 4
Mr. Kisor’s original claim was denied in 1983 because
he had no diagnosis of PTSD, not because of any dispute as
to whether he had suffered an in-service stressor. J.A. 23.
The Rating Decision acknowledges consideration of the VA
psychiatric examiner’s evaluation. Id. In the evaluation,
the examiner detailed Mr. Kisor’s recounting of his partic-
ipation in Operation Harvest Moon, noting “it . . . ap-
pear[ed] that [Mr. Kisor] was involved in one major
ambush which resulted in 13 deaths.” Id. at 19–20. The
examiner concluded, however, that it was his “distinct im-
pression that this man suffers from a personality disorder
as opposed to PTSD.” Id. at 21. It was on this lack of a
PTSD diagnosis that the Board relied when it concluded
that PTSD was “not shown by evidence of record.” Id. at
23.
As noted, the additional service records at issue here
are Mr. Kisor’s service personnel records, including his
Form 214, corrected to add a Combat Action Ribbon; and
his Combat History, Expeditions, and Awards Record not-
ing his participation in Operation Harvest Moon. The ad-
ditional service records also include the daily log of his
4 This understanding of “relevant” is also consistent
with the definition for that term in connection with “sup-
plemental claims” under the Modernization Act noted
above. 38 C.F.R. § 3.2501 (“Relevant evidence is infor-
mation that tends to prove or disprove a matter at issue in
a claim [and] includes evidence that raises a theory of en-
titlement that was not previously addressed.”).
Case: 16-1929 Document: 71 Page: 14 Filed: 08/12/2020
14 KISOR v. WILKIE
battalion in Vietnam that confirmed Mr. Kisor’s descrip-
tion of the ambush during Operation Harvest Moon. Alt-
hough they provide further support to Mr. Kisor’s prior
statements that he participated in Operation Harvest
Moon and indeed could provide “credible supporting evi-
dence that the claimed in-service stressor occurred,” see
AZ, 731 F.3d at 1310, these additional service records do
not show that Mr. Kisor had a medical diagnosis of PTSD
as of 1983, or that the agency otherwise erred in denying
his claim in 1983.
The Board’s decision that Mr. Kisor’s records were not
“relevant” is also consistent with our holding in Blubaugh,
773 F.3d at 1314. In Blubaugh, we held that § 3.156(c) did
not apply when a newly discovered service record “did not
remedy the defects” of a prior decision and contained facts
that “were never in question.” Id. Indeed, we held that
“[s]ection 3.156(c) only applies ‘when VA receives official
service department records that were unavailable at the
time that VA previously decided a claim for benefits and
those records lead VA to award a benefit that was not
granted in the previous decision.’” Id. (quoting New and
Material Evidence, 70 Fed. Reg. at 35,388 (proposed June
20, 2005)).
We therefore conclude that the Board did not err in
holding that the records cited by Mr. Kisor were not “rele-
vant” because they did not pertain to the basis of the 1983
denial, the lack of a diagnosis of PTSD. The records added
nothing to the case because they bore on a matter relating
to entitlement to service connection for PTSD that was not
in dispute: the presence of an in-service stressor.
III.
As noted, Mr. Kisor argues that a service department
record is “relevant” under 38 C.F.R. § 3.156(c) if it has any
tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence. This
Case: 16-1929 Document: 71 Page: 15 Filed: 08/12/2020
KISOR v. WILKIE 15
view, however, is squarely contrary to what we have just
explained is the correct reading of the regulation. We
therefore reject it.
Mr. Kisor makes two additional arguments. First, he
contends that his reading of the regulation is supported by
the fact that § 3.156(c) is intended to be remedial in nature.
According to Mr. Kisor, the regulation was promulgated “to
address what occurs when VA fails to obtain all relevant
service department records before adjudicating [a] claim in
the first instance.” Appellant’s Suppl. Br. 11. Since the
regulation is remedial, Mr. Kisor argues, the term “rele-
vant” should be construed broadly in a manner consistent
with the interpretation above that he urges. Id. at 13–15.
We disagree. Although broad, the VA’s duty to assist
is not without limits. Under 38 U.S.C. § 5103A(a)(2), “[t]he
Secretary is not required to provide assistance to a claim-
ant under this section if no reasonable possibility exists that
such assistance would aid in substantiating the claim.”
(Emphasis added). Thus, to the extent the VA’s duty to
assist encompasses evidence necessary, but not sufficient,
to substantiate a veteran’s claim, the duty does not extend
to the situation where, like here, the evidence provides no
reasonable possibility that the claim could be substanti-
ated because the evidence does not establish a missing
claim element.
Finally, Mr. Kisor argues that we should resort to the
“pro-veteran canon” of construction, see, e.g., Brown v.
Gardner, 513 U.S. 115, 117–18 (1994), and thereby arrive
at the reading of the term “relevant” in § 3.156(c) that he
urges. Appellants’ Suppl. Br. 16–18. The canon is not
available in this case, however, because it only applies in
the situation where the statute or regulation at issue is am-
biguous. Paralyzed Veterans of Am. v. Sec’y of Veterans Af-
fairs, 345 F.3d 1334, 1340 (Fed. Cir. 2003) (noting that the
pro-veteran canon “applies only to ambiguous statutes”
and “cannot be invoked to override the clear meaning of a
Case: 16-1929 Document: 71 Page: 16 Filed: 08/12/2020
16 KISOR v. WILKIE
particular provision”) (internal quotation marks and cita-
tion omitted); Spicer v. Shinseki, 752 F.3d 1367, 1371 (Fed.
Cir. 2014) (declining to apply the pro-veteran canon to a
regulation when there was no ambiguity and no interpre-
tive doubt). 5
In this case, both Mr. Kisor and the government take
the position that the term “relevant” in § 3.156(c) is not
“genuinely ambiguous.” We agree with that position and
hold today that the term has only “one reasonable mean-
ing.” That is the meaning adopted by the Board when it
5 See also Parrott v. Shulkin, 851 F.3d 1242, 1251
(Fed. Cir. 2017) (declining to apply pro-veteran canon in
part because there was no ambiguity in the statute); Fred-
erick v. Shinseki, 684 F.3d 1263, 1269 (Fed. Cir. 2012)
(“[T]he Secretary correctly posits that the rule of interpre-
tative doubt favoring veterans in Brown v. Gardner, has no
force if a statute properly interpreted leaves no ambiguity
as to its meaning.”) (citation omitted); Heino v. Shinseki,
683 F.3d 1372, 1379 n.8 (Fed. Cir. 2012) (declining to hold
a statute unambiguous by resorting to [the pro-veteran
canon of construction] that is “used to analyze ambiguous
statutes”); Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir.
2010) (declining to apply pro-veteran canon after conclud-
ing statute was unambiguous by “applying other interpre-
tive tools.”); Terry v. Principi, 340 F.3d 1378, 1383 (Fed.
Cir. 2003) (declining to apply pro-veteran canon when the
statute was not ambiguous); Boyer v. West, 210 F.3d 1351,
1355 (Fed. Cir. 2000) (“[W]hen we find an ambiguity in a
veterans’ benefit statute, interpretative doubt is to be re-
solved in the veteran’s favor. At the same time, we have
also recognized that a veteran cannot rely upon the gener-
ous spirit that suffuses the law generally to override the
clear meaning of a particular provision.”) (internal quota-
tion marks and citations omitted).
Case: 16-1929 Document: 71 Page: 17 Filed: 08/12/2020
KISOR v. WILKIE 17
denied Mr. Kisor an effective date earlier than June 5, 2006
for service connection for his PTSD.
We have considered Mr. Kisor’s other arguments and
have found them to be without merit.
CONCLUSION
For the foregoing reasons, we conclude the term “rele-
vant” has only one reasonable meaning in the context of
§ 3.156(c)(1): the “relevant” service records must speak to a
matter in issue, in other words, a matter in dispute. Ac-
cordingly, we affirm the decision of the Veterans Court that
affirmed the decision of the Board denying Mr. Kisor an
effective date earlier than June 5, 2006 for service connec-
tion for his PTSD.
AFFIRMED
Costs
No costs.
Case: 16-1929 Document: 71 Page: 18 Filed: 08/12/2020
United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. KISOR,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1929
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2811, Judge Alan G. Lance, Sr.
______________________
REYNA, Circuit Judge, dissenting.
This appeal is on remand from the U.S. Supreme
Court.
Three years ago, this panel unanimously held that the
plain text of 38 C.F.R. § 3.156(c) was ambiguous as to the
scope of the word “relevant.” It was on that basis that we
applied Auer deference to what we determined was a rea-
sonable interpretation of the regulation by the Department
of Veterans Affairs (“VA”). We did not at the time consider
a countervailing tool used to resolve ambiguities in veter-
ans’ benefits regulations, the pro-veteran canon. The Su-
preme Court vacated our decision because it relied
prematurely on Auer, and on remand, the VA waived Auer
Case: 16-1929 Document: 71 Page: 19 Filed: 08/12/2020
2 KISOR v. WILKIE
altogether. 1 Now, the majority decides that the agency’s
construction—of the same text we held was ambiguous—
has become unambiguously correct. Slip Op. 15–17. On
that basis, the majority again avoids application of the pro-
veteran canon.
I disagree with my colleagues’ new position that the
“one reasonable meaning” of the word “relevant” in 38
C.F.R. § 3.156(c) is the VA’s. Slip Op. 4, 9, 16. Nothing in
the plain meaning or context of the provision requires “rel-
evant” records to “speak to the basis for the VA’s prior de-
cision,” to address facts expressly “in dispute,” or to “affect
the outcome.” See Slip Op. 8, 9, 12, 14. Rather, the estab-
lished constructions of the terms “relevant records” and
“material evidence” in related veterans’ benefit provisions
support the conclusion that records are “relevant” so long
as they help to establish unestablished facts that are nec-
essary for substantiating the veteran’s claim. The majority
relies on flawed assumptions and inferences in adopting
the VA’s construction and points to nothing that renders
the more pro-veteran construction unreasonable.
Fundamentally, when a veterans’ benefit provision is
ambiguous on its face, the pro-veteran canon must be
weighed alongside the other traditional tools in resolving
interpretive doubt. Neither the Supreme Court’s decision
1 Recording of Oral Argument at 16:10–16:22 (“The
government is not contending that the agency’s interpreta-
tion is entitled to deference.”); see also Transcript of Oral
Argument at 64:6-20, Kisor v. Wilkie, 139 S. Ct. 2400
(2019), http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2016-1929_1142020.mp3 (conceding that
Auer deference only applies “if the determination reflects
the considered judgment of the agency as a whole” and that
“we [the government] don’t think that any individual Board
decision by the VA Board reflects the considered judgment
of the agency as a whole”).
Case: 16-1929 Document: 71 Page: 20 Filed: 08/12/2020
KISOR V. WILKIE 3
in this case, nor this court’s precedent, supports the major-
ity’s assumption that the canon is to be treated like Auer
deference as solely a tiebreaker of last resort. Rather, the
Court clarified that the “traditional tools of construction”
must precede deference to the agency. As such a tool, the
pro-veteran canon requires that we discern the remedial
purpose of a veterans’ benefit provision in the context of the
veterans’ benefit scheme as a whole and ensure that our
construction effectuates, rather than frustrates, that pur-
pose. By brushing aside the canon, the majority adopts a
construction of § 3.156(c) that substantially narrows the
scope of its remedial function. Thus, Mr. Kisor, a veteran
who was denied twenty-three years of compensation for his
service-connected disability after a disgracefully inade-
quate VA review, is denied relief under a regulation specif-
ically promulgated to benefit him and other veterans in his
situation. The result will reverberate far beyond this case.
I dissent.
I
When James Kisor submitted his first claim for service-
connected post-traumatic stress disorder (“PTSD”) in 1982,
he had undergone over a year of counseling for his symp-
toms at the Portland Vet Center. Yet a VA examiner diag-
nosed him with personality disorders rather than PTSD,
and based on that diagnosis, the VA denied his claim on a
one-page form. J.A. 23.
There is no dispute that the agency made no effort, be-
fore or after receiving the examiner’s report, to determine
whether Mr. Kisor suffered a traumatic stressor during his
service in Vietnam. This was in spite of the fact that (1) a
legal element of any PTSD claim is a verified in-service
stressor, and (2) the first clinical criterion for a medical di-
agnosis of PTSD (another legal element of a PTSD claim)
is the experience of an objectively distressing traumatic
Case: 16-1929 Document: 71 Page: 21 Filed: 08/12/2020
4 KISOR v. WILKIE
event. 2 There was no documentation whatsoever of combat
experience in Mr. Kisor’s file because the VA had never
bothered to request his personnel records from the service
department. The rating decision made no mention of his
combat status. J.A. 23.
It bears emphasizing a few neglected details of the ex-
amination that led to this rating decision against Mr. Ki-
sor. Although the examiner’s report recounted Mr. Kisor’s
descriptions of his combat experience, it did so with palpa-
ble skepticism 3 and noted that Mr. Kisor had reported “no
2 See J.A. 107 (citing the diagnostic criteria for
PTSD); AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS, 309.81 (3d ed.
1980) (identifying the first diagnostic criterion for PTSD as
“[e]xistence of a recognizable stressor that would evoke sig-
nificant symptoms of distress in almost everyone”); see
also, e.g., O’Donnell v. Shinseki, 2012 WL 1660827, at *1
(Vet. App. 2012) (“A VA medical examination . . . concluded
that he ‘does not meet DSM–IV criteria for the diagnosis of
PTSD, in terms of a specific, identified stressor that meets
Criterion A, which is required for the diagnosis to be
made.’”).
3 See, e.g., J.A. 19 (“The veteran seemed to be imply-
ing that the very exposure to potential combat and the im-
plied danger did affect a change upon his adaptation.”)
(emphasis added); id. (“When the veteran was asked to de-
scribe combat situations he seemed very defensive and
wanted to make certain that I understood that he was al-
ways in situations of combat danger.”); id. (“[I]t would ap-
pear that he was involved in one major ambush which
resulted in 13 deaths in a large company. The veteran does
not remember how long this ambush lasted. He described
the ambush in the context of the stupidity of his command-
ing officer’s orders and judgment.”); J.A. 20 (“Whenever I
Case: 16-1929 Document: 71 Page: 22 Filed: 08/12/2020
KISOR V. WILKIE 5
battle problems or traumatic experiences” to his social
worker. J.A. 18–20. At the time, Mr. Kisor’s treating coun-
selor had considered his symptoms to be consistent with
PTSD. J.A. 21. The examiner noted he was “not im-
pressed” with that diagnosis but provided no explanation
of the basis for his own opinion. J.A. 21. This was because
he had “lost” the “portion of the original dictation” setting
forth a “specific review of symptoms related to the PTSD
criteria” and could not “recall the specifics.” J.A. 21–22.
All he could offer was his “impression.” Id. Despite all this,
the rating board accepted the examiner’s diagnosis and
went no further with Mr. Kisor’s claim.
For the next twenty-three years, Mr. Kisor received no
disability compensation from the VA, although the symp-
toms of his condition continued to keep him from holding
down a job. In 2006, Mr. Kisor went to check his VA claims
file, and discovered that there were no records of his com-
bat history. He wrote to the VA, attaching service records
documenting his combat history and Combat Action Rib-
bon, and demanded that the agency look again at his claim.
J.A. 28–29. The VA construed his first letter as a request
to reopen his claim based on new and material evidence,
and although nothing else about his claim had changed, the
VA this time proceeded to investigate his alleged in-service
stressor, requesting an entry from his battalion’s daily log
that documented the following attack:
battalion forward and rear elements taken under
heavy fire by mortar, recoilless rifle, and automatic
would ask direct questions concerning the actual amount
of combat activity, this subject would get lost as he would
again launch into another detailed anecdotal monologue.”);
J.A. 21 (“[H]is Vietnam combat situations were couched in
the framework of his basic premise: that most people who
have attempted to boss him around had been inferior to
him either intellectually or morally.”).
Case: 16-1929 Document: 71 Page: 23 Filed: 08/12/2020
6 KISOR v. WILKIE
weapons. . . . VC [Viet Cong combatants] were well
camouflaged and dug into concealed positions. All
VC contacted were well armed and equipped . . . .
VC KIA [killed in action] 105.
J.A. 30–31. Based on the information in the log—infor-
mation that all along had been in the government’s posses-
sion—the VA formally verified Mr. Kisor’s stressor. Id.
Mr. Kisor then obtained and submitted an evaluation
from a third-party psychiatrist, who concluded that Mr. Ki-
sor met each of the diagnostic criteria for PTSD and had
been suffering from the effects of his condition for the last
27 years. J.A. 109. In particular, the psychiatrist opined
that the VA examiner in 1983 had likely “misunderstood
the impact of the claimant’s war trauma upon him,” as
symptoms of PTSD were apparent from Mr. Kisor’s medical
records at that time. Id. A new VA psychiatric examina-
tion concurred with this diagnosis. 4 J.A. 115–116. This
time, the new examiner accepted the presence of “combat
stressors” based on records of Mr. Kisor’s combat action rib-
bon, J.A. 112, and proceeded to describe his combat ac-
counts and symptoms fully and sympathetically. The
4 There are similar instances in which a Vietnam
veteran, whose PTSD claim was initially denied based on
absence of a PTSD diagnosis, is later diagnosed with PTSD
in a new examination, and awarded benefits after the VA
receives new evidence of an in-service stressor. See, e.g.,
No. 13-00 404A, Bd. Vet. App. 1412187, 2014 WL 1897120,
at *4 (BVA Mar. 24, 2014); No. 11-00 848, Bd. Vet. App.
1408416, 2014 WL 1417762, at *1 (BVA Feb. 27, 2014); No.
10-48-888, Bd. Vet. App. 1317296, 2013 WL 3770036, at *5
(BVA May 28, 2013). Notably, the Board found § 3.156(c)
to be applicable in each of these cases without questioning
the relevance of the newly identified stressor evidence.
Case: 16-1929 Document: 71 Page: 24 Filed: 08/12/2020
KISOR V. WILKIE 7
examiner also received and reviewed the other records now
in Mr. Kisor’s claims file. Id.
Based on Mr. Kisor’s new diagnosis of PTSD and his
service records, the VA found that he had established the
necessary elements of a service-connected PTSD claim and
awarded compensation for the claim. J.A. 32–33. The
agency, however, refused to treat its new review as a “re-
consideration” under § 3.156(c), which would entitle him to
an effective date retroactive to his 1982 claim. The Board
of Veterans’ Appeals (“Board”) recognized that reconsider-
ation is only triggered when the VA receives newly identi-
fied “relevant official service records.” The Board reasoned
that the newly received combat records in Mr. Kisor’s
case—i.e., his combat expeditions form, his Combat Action
Ribbon award, and his battalion’s daily log—were not “rel-
evant” because they did not address the “basis” of the VA’s
prior decision and did not “manifestly change” its outcome.
J.A. 90–91.
II
In all cases, the VA has a statutory duty to assist the
veteran by fully and sympathetically developing the vet-
eran’s claim to its optimum before deciding the claim on the
merits. McGee v. Peake, 511 F.3d 1352, 1357 (2008). The
VA bears this obligation so long as there is any “reasonable
possibility” that such assistance would “aid in substantiat-
ing the claim.” 38 U.S.C. § 5103A; Golz v. Shinseki, 590
F.3d 1317, 1323 (Fed. Cir. 2010). This includes making
reasonable efforts to obtain evidence necessary to substan-
tiate the veteran’s claim. 38 U.S.C. § 5103A. In particular,
the VA must obtain “relevant records pertaining to the
claimant’s active [military] service that are held or main-
tained by a governmental entity.” 38 U.S.C. § 5103A(c)(1).
What happens when the VA fails to fulfill this duty? If,
decades after a claim is denied, the veteran uncovers ser-
vice records that prove a necessary element of his claim
and should have been part of his file, will his claim be
Case: 16-1929 Document: 71 Page: 25 Filed: 08/12/2020
8 KISOR v. WILKIE
reconsidered, offering him a chance to prove entitlement
dating back to his first claim? Or must he first bear the
burden of showing that the missing records might have
changed the VA’s original decision? The answer turns on
the construction of the word “relevant” in the VA’s regula-
tion, 38 C.F.R. § 3.156(c).
Section 3.156(c) provides for reconsideration of claims
previously decided without the benefit of all relevant ser-
vice records. Subsection (c)(1) requires the VA to recon-
sider a claim if it receives “relevant service department
records” that had not been considered when it first decided
the claim:
[A]t any time after VA issues a decision on a claim,
if VA receives or associates with the claims file rel-
evant official service department records that ex-
isted and had not been associated with the claims
file when the VA first decided the claim, VA will
reconsider the claim.
§ 3.156(c)(1). Reconsideration includes further VA assis-
tance in developing any additional evidence needed to sub-
stantiate the claim. 38 U.S.C. § 5103A(a)(1); Vigil v. Peake,
22 Vet. App. 63, 67 (2008). If, after reconsideration of the
claim, “an award [is] made based all or in part” on these
records, then the award is effective as far back as the effec-
tive date of the previously decided claim, depending on
when entitlement arose, as determined through a retroac-
tive assessment of disability. § 3.156(c)(3), (c)(4).
The plain text of § 3.156(c)(1) does not specify whether
the “relevant” records that trigger reconsideration must
“cast[] doubt on the agency’s prior rating decision” or only
“relat[e] to the veteran’s claim more broadly.” Kisor v.
Shulkin, 869 F.3d 1360, 1367 (Fed. Cir. 2017) (“Kisor I”).
However, the history and text of § 3.156(c) make clear that
reconsideration serves the dual remedial purpose of (1)
providing a fair claim review based on a fully developed
record to veterans who had been denied such a review
Case: 16-1929 Document: 71 Page: 26 Filed: 08/12/2020
KISOR V. WILKIE 9
before and (2) compensating such veterans for any benefits
to which they can now prove they should have been enti-
tled. We have noted that Ҥ 3.156(c) serves to place a vet-
eran in the position he would have been had the VA
considered the relevant service department record before
the disposition of his earlier claim.” Blubaugh v. McDon-
ald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). That includes
affording him both his procedural right to a complete re-
view and his substantive right to full compensation.
In light of the ambiguity in § 3.156(c) and the regula-
tion’s remedial purpose, consistent with the Supreme
Court’s instructions on remand, I look to the provision’s
context and history for a construction of “relevant” that
best effectuates the purpose of reconsideration. I turn first
to our construction of “relevant records” in the context of
the VA’s duty to assist veterans. I then look to the histori-
cal scope of the “new and material evidence” standard for
the reopening of claims, which served as the original stand-
ard for reconsideration under § 3.156(c). Both sources
point to the conclusion that “relevant . . . records” need only
address a necessary and unestablished element of the
claim as a whole, not the specific disputed issue that served
as the basis for the VA’s prior decision.
A. “Relevant Records” and the Duty to Assist
As discussed, 38 U.S.C. § 5103A requires the VA to as-
sist a claimant in obtaining “evidence necessary to sub-
stantiate the claimant’s claim,” including obtaining
“relevant records” of the claimant’s military service, so long
as there exists any “reasonable possibility that such assis-
tance would aid in substantiating the claim.” 38 U.S.C.
§§ 5103A(a)(1)–(a)(2), 5103A(c)(1)(A) (emphasis added).
There is no dispute that “relevant” records for purposes of
reconsideration should be construed consistently with the
meaning of “relevant records” under § 5103A.
In interpreting § 5103A, this court has defined “rele-
vant records” as “those records that relate to the injury for
Case: 16-1929 Document: 71 Page: 27 Filed: 08/12/2020
10 KISOR v. WILKIE
which the claimant is seeking benefits and have a reason-
able possibility of helping to substantiate the veteran’s
claim.” Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir.
2010). When determining the scope of “relevant records”
for a given claim, we look to the elements necessary to sub-
stantiate it. See id. at 1322. In particular, when a veteran
seeks compensation for service-connected PTSD, we have
held that the “records relevant to his claim are those relat-
ing to a medical diagnosis of PTSD, evidence corroborating
claimed in-service stressors, or medical evidence establish-
ing a link between any in-service stressor and a PTSD di-
agnosis.” Id.
We have also made clear that the VA’s obligation to ob-
tain relevant records does not depend on whether the rec-
ords would likely be “dispositive” of the claim. McGee, 511
F.3d at 1358 (“The statute [§ 5103A] simply does not excuse
the VA’s obligation to fully develop the facts of [the vet-
eran’s] claim based on speculation as to the dispositive na-
ture of relevant records.”). We have held that relevant
records need not “independently prove” the veteran’s claim.
Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019).
The scope of the VA’s duty to assist thus supports the
conclusion that “relevant” records are those that help to es-
tablish a necessary element of a veteran’s claim, regardless
of whether the evidence would be dispositive of the out-
come. By this standard, Mr. Kisor’s combat records are rel-
evant at least because they corroborate his in-service
stressor, a necessary element of a PTSD claim that had not
been established when the VA first decided his claim. 38
C.F.R. § 3.304(f); AZ v. Shinseki, 731 F.3d 1303, 1310 (Fed.
Cir. 2013).
B. “New and Material Evidence”
Up until 2019, all of 38 C.F.R. § 3.156 fell under the
heading “New and Material Evidence.” As originally en-
acted, the provision provided for (1) reopening of previously
decided claims based on “new and material evidence” and
Case: 16-1929 Document: 71 Page: 28 Filed: 08/12/2020
KISOR V. WILKIE 11
(2) reconsider[ation] of previously decided claims based on
new and material evidence that consisted of official records
from the service department. See § 3.156, New and Mate-
rial Evidence, 27 Fed. Reg. 11887 (Dec. 1, 1962) (emphasis
added). The distinction between the two procedures was
that reconsideration provided the veteran an opportunity
to prove and receive retroactive entitlement to benefits,
whereas reopening only entitled veterans to the effective
date of the request to reopen.
Effective 2006, the VA amended the language in
§ 3.156(c) to delete the reference to “new and material evi-
dence,” and replace it with the current phrase “relevant of-
ficial service records.” In proposing the change, the VA
stated that the change was intended to eliminate any con-
fusion as to whether awards made upon reconsideration
would be subject to the same effective date as awards made
upon reopening. New and Material Evidence, 70 Fed. Reg.
35388, 35388-89 (Jun. 20, 2005). The VA was thus clear
that the new “relevant . . . records” language was not in-
tended to impose a higher threshold for triggering recon-
sideration than before. It follows that records are
“relevant” under § 3.156(c)(1) if they would satisfy the def-
inition of “material evidence” for purposes of reopening a
claim. 5
This is critical because the standard for “material evi-
dence” has always been forward-looking toward the claim
to be substantiated, not backward-looking toward the prior
VA decision. Since 2001, the VA has defined “material” ev-
idence as “evidence that, by itself or when considered with
5 This is consistent with the VA’s definition for “new
and relevant evidence” for purposes of re-adjudicating
“supplemental claims” under the recently enacted
§ 3.156(d). The definition provides that “[t]he new and rel-
evant evidence” standard is no higher than the “new and
material evidence” standard under § 3.156(a).
Case: 16-1929 Document: 71 Page: 29 Filed: 08/12/2020
12 KISOR v. WILKIE
previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim.” § 3.156(a) (em-
phasis added); see also § 3.156, Duty to Assist, 66 Fed. Reg.
45620, 45630 (Aug. 29, 2001). Historically, when the VA
promulgated its first binding definition of materiality in
1990, it stated that “it has always been VA’s position that
evidence may be new and material even though it does not
warrant revision of a previous decision.” New and Material
Evidence, 55 Fed. Reg. 52274 (Dec. 21, 1990) (emphasis
added).
Accordingly, in Hodge v. West, we rejected the Veterans
Court’s requirement that a claimant seeking reopening es-
tablish “a reasonable possibility that the new evidence,
when viewed in the context of all the evidence, both new
and old, would change the outcome.” 155 F.3d 1356, 1363
(Fed. Cir. 1998) (citing Colvin v. Derwinski, 1 Vet App. 171,
174 (1991)) (emphasis added). We concluded that an out-
come determinacy requirement for reopening, even under
an attenuated “reasonable possibility” threshold, was “in-
consistent with the general character of the underlying
statutory scheme for awarding veterans’ benefits.” Id. at
1362. We reasoned that the availability of review based on
new evidence reflects “the importance of a complete record
for evaluation of a veteran’s claim” that considers “all po-
tentially relevant evidence.” Id. at 1363. We recognized
that “so much of the evidence regarding the veterans’
claims for service connection and compensation is circum-
stantial at best,” and in this context, new evidence may
“contribute to a more complete picture of the circumstances
surrounding the origin of a veteran’s injury or disability,”
and warrant another look at the claim, even if it does not
demonstrably change the right outcome. Id. Moreover,
both the reopening and reconsideration of a claim entitles
the veteran to receive additional assistance from the VA,
such as new medical examinations and requests for addi-
tional records. See Paralyzed Veterans of Am. v. Sec’y of
Veterans Affs., 345 F.3d 1334, 1339, 1343 (Fed. Cir. 2003);
Case: 16-1929 Document: 71 Page: 30 Filed: 08/12/2020
KISOR V. WILKIE 13
Vigil v. Peake, 22 Vet. App. 63, 67 (2008). The provisions
thus contemplate that a claim that is not fully substanti-
ated based on the new evidence alone may be substantiated
after further factual development.
The VA adhered to these principles when it adopted the
current definition of materiality in 2001. In particular, the
VA withdrew as “too restrictive” a proposal that would
have defined “material evidence” as “evidence that relates
specifically to the reason why the claim was last denied.”
Duty to Assist, 66 Fed. Reg. at 45629 (final rule) (emphasis
added); cf. Duty to Assist, 66 Fed. Reg. 17834, 17838–89
(Apr. 4, 2001) (proposed rule). In its place, the VA promul-
gated the current definition of materiality that focuses on
the “unestablished fact[s] necessary to substantiate the
claim.” Duty to Assist, 66 Fed. Reg. at 45629 (emphasis
added). 6
If the VA now intends to condition reconsideration on
records that relate to the basis of the prior decision or
change its outcome, it must do so through notice and com-
ment. The agency cannot urge us to read those require-
ments into the word “relevant” when they have repeatedly
refused to incorporate them into the criteria for reopening
and reconsideration in promulgating prior versions of the
regulation. The history and context of § 3.156 thus make
6 The same amendment also added the requirement
that new and material evidence must “raise a reasonable
possibility of substantiating the claim.” Duty to Assist, 66
Fed. Reg. at 45629. The VA clarified that this language
required only that “there be a reasonable possibility that
VA assistance would help substantiate the claim,” in ac-
cordance with the threshold for the VA’s duty to assist. Id.
(emphasis added). As I further explain in Section III, this
“reasonable possibility” standard does not require new ev-
idence to be independently capable of changing the out-
come of a claim. See infra, 17-18.
Case: 16-1929 Document: 71 Page: 31 Filed: 08/12/2020
14 KISOR v. WILKIE
clear that records relating to unestablished facts necessary
to substantiate the veteran’s claim are sufficient to trigger
reconsideration under subsection (c).
***
Viewed as a whole, the context, history, and purpose of
reconsideration support a construction of “relevant” that
entitles Mr. Kisor to relief: that service records are “rele-
vant” when they help to establish an unestablished fact
necessary to substantiate a veteran’s claim. Moreover, this
reading of § 3.156(c) accords with the pro-veteran canon be-
cause it most effectuates the provision’s remedial purpose
of (1) ensuring that veterans whose claims were denied
without the benefit of full VA assistance receive the full re-
view and assistance they were owed; and (2) compensating
veterans for any past benefits to which they can prove they
should have been entitled.
III
Nothing in the majority’s reasoning undermines the
soundness of this pro-veteran interpretation. The majority
concludes that a combination of dictionary definitions, con-
text, and case law “makes clear” that the VA’s interpreta-
tion is correct, but its inferences and assumptions fail
under scrutiny.
First, borrowing from definitions of “relevant” as per-
taining to “a matter in issue,” 7 the majority assumes that
“in issue” means “in dispute,” and reasons that evidence
can only be relevant if it pertains to facts that were “dis-
puted” during the claim’s prior adjudication. Slip Op. 9, 12.
Not only is this inference unwarranted in common legal us-
age, see Fed. R. Evid. 401 advisory committee’s note (“[t]he
7 See Slip Op. 12 (citing Black’s Law Dictionary (10th
ed. 2014) (defining “relevant” as “[l]ogically connected and
tending to prove or disprove a matter in issue”)).
Case: 16-1929 Document: 71 Page: 32 Filed: 08/12/2020
KISOR V. WILKIE 15
fact to which [relevant] evidence is directed need not be in
dispute”), 8 it is fundamentally out of place in the VA’s
“completely ex-parte system of adjudication.” Hodge, 155
F.3d at 1362–63. Because no adverse party is expected to
contest a claimant’s assertions, the question of whether a
fact is “disputed” has no import for whether it must be sup-
ported by competent evidence and adjudicated by the VA;
that question depends instead on whether the fact remains
unestablished and necessary for substantiating the claim.
Here, regardless of whether the presence of Mr. Kisor’s in-
service stressor was “disputed” by the VA, it was not estab-
lished at the time of the VA’s first decision because the only
mention of his combat experience in the record—a second-
hand account by a VA examiner—was not competent evi-
dence of a stressor. See, e.g., Cohen v. Brown, 10 Vet. App.
128, 145–46 (1997) (noting, in remanding a case to the
Board, that “[a]n opinion by a mental health professional
based on a post[-]service examination of the veteran cannot
be used to establish the occurrence of the stressor,” and
that the VA is “not require[d] [to] accept[] . . . a veteran’s
assertion that he was engaged in combat with the enemy”).
Next, the majority infers from language in § 3.156(c)(3)
that relevant records must “speak to the basis for the VA’s
8 Indeed, the Advisory Committee observed that evi-
dence directed to an uncontroversial point is often relevant
and admissible at trial to “aid in understanding” the case.
Fed. R. Evid. 401 advisory committee’s note. Relatedly, in
Forshey v. Principi, this court rejected the VA’s argument
that “relevant” questions of law must have been specifically
raised and addressed in prior proceedings. 284 F.3d 1335,
1351–52 (Fed. Cir. 2002). In doing so, we construed “rele-
vant” to mean “bear[ing] upon or properly apply[ing] to the
issues before us” based on the term’s dictionary definitions.
Id. (emphasis added).
Case: 16-1929 Document: 71 Page: 33 Filed: 08/12/2020
16 KISOR v. WILKIE
prior decision.” 9 Slip Op. 12. Subsection (c)(3) provides
that an award granted after reconsideration can receive a
retroactive effective date if it is “made based all or in part”
on the records that triggered reconsideration. § 3.156(c)(3).
The majority reasons that records that do not “speak to the
basis for the VA’s prior decision” cannot form all or part of
the basis for the VA’s current award of benefits after recon-
sideration. Slip Op. 12. But nothing in the text ties the
basis of the subsequent award to the basis of the prior de-
cision. Nor are the two logically linked. If the VA denies a
claim based on lack of evidence for one element without
reaching the others, a later decision granting the claim will
still be “based” on evidence of all the elements. And here,
the VA’s 2007 award to Mr. Kisor was indisputably “based”
at least “in part” on his combat records. The majority
seems to admit as much, see Slip Op. 6, and the Board
never found otherwise.
In addition, the majority suggests that language in
§ 5103A(a)(2) excused the VA from further assisting with
or reconsidering Mr. Kisor’s claim after the first VA exam-
iner failed to diagnose him with PTSD. Slip Op. 12, 15 (cit-
ing § 5103A(a)(2)). Section 5103A(a)(2) provides that the
9 The VA’s position on whether “relevant” records
must pertain to the “basis for the VA’s prior decision” has
been a moving target. The Board relied on this require-
ment in denying Mr. Kisor an earlier effective date. J.A.
91. In its initial response to Mr. Kisor’s appeal to this
court, the VA disavowed that interpretation, calling it “dis-
torted.” Resp. 18–19. This panel accepted that disavowal.
Kisor I, 869 F.3d at 1369. On remand, the VA changed
course in its supplemental briefing, asserting unequivo-
cally that “to be ‘relevant’ for purposes of reconsideration,
the additional records must speak to the basis for the VA’s
prior decision.” Gov. Supp. 16. The majority now accepts
that interpretation without skepticism. Slip Op. 8, 12, 14.
Case: 16-1929 Document: 71 Page: 34 Filed: 08/12/2020
KISOR V. WILKIE 17
VA is not obligated to assist with a claim if “no reasonable
possibility exists that such assistance would aid in sub-
stantiating the claim.” The majority reasons that if “evi-
dence does not establish a missing claim element,” then it
“provides no reasonable possibility that the claim could be
substantiated.” Slip Op. 15.
But that reading of § 5103A is irreconcilable with our
precedent that the VA’s duty to obtain records is not lim-
ited to “dispositive” evidence. McGee, 511 F.3d at 1358;
Jones, 918 F.3d at 926. We have emphasized that the VA’s
duty to assist is excused only when “no reasonable possibil-
ity exists that such assistance would aid in substantiating
the claim.” Jones, 918 F.3d at 926 (emphasis in original)
(citing 38 U.S.C. § 5103A(a)(2)). 10 Even when the availa-
bility of a new record leaves a claim element unestablished,
there often remains the possibility that the missing ele-
ment will be established with further assistance. Indeed,
the “no reasonable possibility” standard in § 5103A(a)(2)
was enacted to replace the unduly burdensome “well-
grounded claim” standard in § 5107(a) that had required a
veteran to present plausible evidence of each element of his
claim before triggering the VA’s duty to assist. See Para-
lyzed Veterans of Am., 345 F.3d at 1343; Epps v. Gober, 126
10 It is instructive that the VA’s own regulations ap-
pear to construe the “no reasonable possibility” standard
extremely narrowly, limiting its examples to claims that
are incapable of substantiation as a matter of law or fa-
cially incredible as a matter of fact: e.g., a veteran with a
dishonorable discharge applying for VA benefits; a compen-
sation claim for prostate cancer from a female veteran or
ovarian cancer from a male veteran; a compensation claim
for a disability that is the result of willful misconduct; or a
claim for service connection for alcoholism or drug addic-
tion. 38 C.F.R. § 3.159(d); Duty to Assist, 66 Fed. Reg. at
17837.
Case: 16-1929 Document: 71 Page: 35 Filed: 08/12/2020
18 KISOR v. WILKIE
F.3d 1464, 1468 (Fed. Cir. 1997). The majority’s reading of
the “reasonable possibility” standard would import the
well-pleaded complaint rule into the very provision enacted
to overrule it.
Moreover, there is no factual basis for concluding that
Mr. Kisor’s claim had “no reasonable possibility” of being
substantiated. The VA treated his claim as capable of sub-
stantiation when it obtained unit records to substantiate
his combat stressor. On appeal, the Board found only that
the combat records did not “manifestly change [the] out-
come” of the VA’s decision, not that they had no reasonable
possibility of helping to do so. J.A. 90. In fact, Mr. Kisor’s
claim was substantiated with the aid of his combat records,
and not miraculously so. Once there was competent evi-
dence of Mr. Kisor’s stressor, all that was needed to sub-
stantiate his claim was a new psychiatric examination.
Given the history of his first examination, and the circum-
stantial nature of a PTSD diagnosis, there was at least a
reasonable possibility that a new examination in light of
the newly collected evidence would yield a different diag-
nosis and substantiate his claim. 11
Finally, the majority relies on language from Blubaugh
v. McDonald for the proposition that “relevant” service rec-
ords must (1) “remedy the defects” of a prior decision, (2)
pertain to facts that were “in question,” and (3) “lead VA to
award a benefit that was not granted in the previous deci-
sion.” Slip Op. 14 (citing Blubaugh, 773 F.3d at 1314). But
the majority reads these statements out of context. In
Blubaugh, we were not construing the word “relevant” as
the threshold for reconsideration. We were explaining that
retroactive benefits are only available under § 3.156(c) if
entitlement is in fact awarded upon reconsideration of the
11 As discussed, supra n.4, Mr. Kisor was not unique
in having different VA examiners reach different diagnoses
of his condition.
Case: 16-1929 Document: 71 Page: 36 Filed: 08/12/2020
KISOR V. WILKIE 19
veteran’s claim. In Blubaugh, the veteran’s claim was de-
nied when the VA reconsidered his claim in light of his
newly identified service record—a document that was not
probative of any fact necessary for substantiating his
claim. Id. It was in the context of discussing this denial by
the VA that we explained that the new record did not “rem-
edy [the] defects” of the prior decision, pertain to facts that
were “in question,” or “lead VA to award a benefit.” Id. at
1314. Thus, nothing in Blubaugh suggests that service rec-
ords are not “relevant” when, as here, the VA awards a
claim after considering the records and expressly relies on
the records in making the award.
Ultimately, nothing in the majority’s reasoning estab-
lishes that the VA’s outcome determinacy requirement for
relevance is compelled by the text of the regulation or oth-
erwise unambiguously correct. Thus, the majority should
have tested the strength of the VA’s arguments against the
weight of the pro-veteran canon. That the majority refused
to do so here deprived Mr. Kisor of the solicitude and inde-
pendent judgment he was owed in this appeal.
IV
Courts have “long applied the canon that provisions for
benefits to members of the Armed Services are to be con-
strued in the beneficiaries’ favor.” Henderson ex rel. Hen-
derson v. Shinseki, 562 U.S. 428, 441 (2011) (citing King v.
St. Vincent’s Hosp., 502 U.S. 215, 220–21, n.9 (1991) (inter-
nal quotations omitted)). Thus, interpretive doubt in such
provisions should be resolved for the benefit of veteran.
Brown v. Gardner, 513 U.S. 115, 118 (1994). This canon is
a corollary of the broader interpretive rule that remedial
provisions are to be construed liberally to effectuate and
not frustrate their remedial purpose. See Boone v. Light-
ner, 319 U.S. 561, 575 (1943); Beley v. Naphtaly, 169 U.S.
353, 361 (1898).
This panel unanimously held in Kisor I that the plain
text of § 3.156(c) was ambiguous as to the scope of the word
Case: 16-1929 Document: 71 Page: 37 Filed: 08/12/2020
20 KISOR v. WILKIE
“relevant,” and that text has not changed since that deci-
sion. Kisor I, 869 F.3d at 1367. Yet the majority concludes
that the canon is “not available in this case” because after
considering arguments that favor the VA’s position under
the other tools of construction, the provision is not “genu-
inely ambiguous.” Slip Op. 15–16.
But while we have held that the pro-veteran canon ap-
plies only to ambiguous statutes and cannot override plain
text, that rule does not render the canon a tool of last re-
sort, subordinate to all others. 12 To the contrary, we have
stated that the canon applies whenever the plain text does
not expressly exclude the veteran’s interpretation. Sursely
v. Peake, 551 F.3d 1351, 1357 (Fed. Cir. 2009); Hudgens v.
McDonald, 823 F.3d 630, 637 (Fed. Cir. 2016). Thus, we
have accepted the canon’s guidance over the VA’s reliance
on a dictionary definition. Hudgens, 823 F.3d at 637. We
have weighed the canon against countervailing legislative
history. Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Vet-
erans Affs., 260 F.3d 1365, 1377–78 (Fed. Cir. 2001). We
have favored the canon over arguments that the veteran’s
interpretation would lead to “irrational” results. Sursely,
12 Indeed, plain text defeats all other tools of con-
struction. See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct.
617, 631 (2018) (holding that when “plain language . . . is
unambiguous, [the court’s] inquiry begins with the statu-
tory text, and ends there as well” (internal citations omit-
ted)); see also Decosta v. United States, 987 F.2d 1556, 1558
n.3 (Fed. Cir. 1993) (holding that “legislative history can-
not override the plain meaning of a statute.”); Charleston
Area Med. Ctr., Inc. v. United States, 940 F.3d 1362, 1370
(Fed. Cir. 2019) (stating that “principles of symmetry can-
not override the plain text of the statute.”); Stern v. Mar-
shall, 564 U.S. 462, 478 (2011) (finding constitutional
avoidance canon inapplicable where it would require re-
writing the statute).
Case: 16-1929 Document: 71 Page: 38 Filed: 08/12/2020
KISOR V. WILKIE 21
551 F.3d at 1357–58. While the canon may not be disposi-
tive of a provision’s meaning every time it is applied, we
are obligated to weigh it alongside the other tools of con-
struction when the text itself gives us doubt.
Here, the majority points to nothing in the text that
precludes Mr. Kisor’s interpretation of “relevant.” Indeed,
this panel accepted in Kisor I that his position was reason-
able. Kisor I, 869 F.3d at 1368. While the majority now
rejects his view as “squarely contrary” to what it concludes
is the “correct reading” of the regulation, it does not explain
why his reading is now contrary to the text.
The majority wrongly assumes that the Supreme
Court’s “genuine ambiguity” criterion for Auer deference
applies to the pro-veteran canon. See Slip Op. 15–16. In
setting the preconditions for Auer deference, the Court re-
quires courts to first exhaust the “traditional tools of con-
struction” because “the core theory of Auer deference is that
sometimes the law runs out, and [a] policy-laden choice is
what is left over.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415
(2019) (“Kisor II”). The pro-veteran canon is not based on
this “deference” theory. The canon does not serve to pro-
vide a “policy-laden” position, adrift from traditional legal
principles, that differs with each case. Id. Rather, the pro-
veteran canon is squarely rooted in the purpose of veterans’
benefit provisions, which we are bound to consider and ef-
fectuate in every construction.
If, as the majority seems to suggest, we can set aside
the pro-veteran canon unless and until all other considera-
tions are tied, then the canon is dead because there is no
such “equipoise” in legal arguments. Id. at 2429–30 (Gor-
such, J., concurring in the judgment). It is our role as the
court to fully employ the canons available in our “tradi-
tional interpretive toolkit” to reach “the best and fairest
reading of the law.” Id. at 2430, 2446. In this case, when
the regulatory text provides no clear answer as to the scope
of the word “relevant,” our consideration of other sources of
Case: 16-1929 Document: 71 Page: 39 Filed: 08/12/2020
22 KISOR v. WILKIE
its meaning should be guided by solicitude for the provi-
sion’s pro-veteran remedial purpose.
Here, reconsideration under § 3.156(c) serves two re-
medial purposes: procedurally, it acknowledges to the vet-
eran that the VA failed in its duty to assist him and
provides him with the complete and sympathetic assis-
tance and review that he was owed; substantively, it makes
the veteran financially whole for the benefits that he can
now prove he was entitled to. The VA’s interpretation frus-
trates both of those purposes. It denies veterans the right
to a fair review unless they make the often impossible
showing that an unsought record would have changed the
course of the VA’s prior decision. And it bars veterans from
recovering compensation that is rightfully theirs.
The unreasonableness of that construction is plain in
this case. The VA undeniably failed Mr. Kisor in this case
when it made no effort whatsoever to obtain records to sub-
stantiate his in-service stressor. Rather than acknowledge
its failure and make amends for it, the VA placed the bur-
den on Mr. Kisor to show that its mistake was dispositive
of its decision against him. When the agency deemed its
new requirement unsatisfied, it denied the veteran twenty-
three years of benefits for PTSD that he can now prove he
suffered as a result of his service.
Those payments were compensatory, not charitable.
They rightfully belonged to Mr. Kisor and his family.
When Mr. Kisor and millions of others joined the armed
services in their youth, for modest pay, risking the rest of
their lives, they did so with the government’s promise that
upon their return, it would make them as whole as possi-
ble, if only financially, for their wounds, and that, as veter-
ans, they would be treated fairly and sympathetically in
the process. That is the basic purpose of the VA’s existence.
Its governing statutes and regulations should always be
construed liberally within the bounds of their text to
Case: 16-1929 Document: 71 Page: 40 Filed: 08/12/2020
KISOR V. WILKIE 23
effectuate that purpose. This recognition is at the core of
the pro-veteran canon. The majority waves it aside.
On this remand, freed from deference to the agency, we
owed Mr. Kisor our best independent judgment of the law’s
meaning. We fail in that obligation when we again accept
the VA’s arguments unmoored from both the text of the law
and the basic principles underlying its purpose.
For these reasons, I dissent.