Veteranclaims’s Blog

June 26, 2019

FedCir; Kisor v. Shulkin, No. 2016-1929 (Decided: September 7, 2017); 38 C.F.R. § 3.156(c)(3); PTSD; Auer deference;

United States Court of Appeals for the Federal Circuit


JAMES L. KISOR,
Claimant-Appellant
v.
DAVID J. SHULKIN, 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: September 7, 2017


KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

IGOR HELMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR.; Y. KEN LEE, SAMANTHA ANN SYVERSON, United States Department of Veterans Affairs, Washington, DC.


2 KISOR v. SHULKIN
Before REYNA, SCHALL, and WALLACH, Circuit Judges.
SCHALL, Circuit Judge.
James L. Kisor, a veteran, appeals the January 27, 2016 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).
In that decision, the Veterans Court affirmed the April 29, 2014 decision of the Board of Veterans’ Appeals (“Board”) denying Mr. Kisor entitlement to an effective date earlier than June 5, 2006, for the grant of service
connection for his post-traumatic stress disorder (“PTSD”). Kisor, 2016 WL 337517, at *1. We affirm.
BACKGROUND
I.
The pertinent facts are as follows: Mr. Kisor served
on active duty in the Marine Corps from 1962 to 1966. Id.
In December of 1982, he filed an initial claim for disability
compensation benefits for PTSD with the Department
of Veterans Affairs (“VA”) Regional Office (“RO”) in Portland,
Oregon. Id. Subsequently, in connection with that
claim, the RO received a February 1983 letter from David
E. Collier, a counselor 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 towards depression, suicidal thoughts,
and social withdraw[a]l. This symptomatic pattern has
been associated with the diagnosis of Post-Traumatic
Stress Disorder (DSM III 309.81).” Id.
In March of 1983, the RO obtained a psychiatric examination
for Mr. Kisor. In his report, the examiner
noted that Mr. Kisor had served in Vietnam; that he had
KISOR v. SHULKIN 3
participated in “Operation Harvest Moon”1; that he was
on a search operation when his company came under
attack; that he reported 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. Rather, it was the examiner’s
“distinct impression” that Mr. Kisor suffered from “a
personality disorder as opposed to PTSD.” J.A. 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. § 4.127.2 Given the lack of a current 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. Kisor,
2016 WL 337517, at *1.
II.
On June 5, 2006, Mr. Kisor submitted a request to reopen
his previously denied claim for service connection for
PTSD. J.A. 25. While his request was pending, he presented
evidence to the RO. This evidence included a July
20, 2007 report of a psychiatric evaluation diagnosing
PTSD. See J.A. 100–11. It also included a copy of
Mr. Kisor’s Department of Defense Form 214, a Combat
1 Operation Harvest Moon was a military engagement
against the Viet Cong during the Vietnam War.
See, e.g., J.A. 20, 95, 101.
2 Under § 4.127, “[i]ntellectual disability (intellectual
developmental disorder) and personality disorders
are not diseases or injuries for compensation purposes,
and . . . disability resulting from them may not be serviceconnected.”
4 KISOR v. SHULKIN
History, Expeditions, and Awards Record documenting
his participation in Operation Harvest Moon, and a copy
of the February 1983 letter from the Portland Vet Center.
See J.A. 16–17, 27–28. In September of 2007, a VA examiner
diagnosed Mr. Kisor with PTSD. J.A. 115. The RO
subsequently made a Formal Finding of Information
Required to Document the Claimed Stressor based on
Mr. Kisor’s statements, his service medical records (which
verified his service in Vietnam with the 2nd Battalion,
7th Marines), and a daily log from his unit, which detailed
the combat events Mr. Kisor had described in connection
with his claim. J.A. 30.
In due course, the RO issued a rating decision reopening
Mr. Kisor’s previously denied claim. The decision
granted Mr. Kisor service connection for PTSD and assigned
a 50 percent disability rating, effective June 5, 2006. 3 Kisor, 2016 WL 337517, at *1. According to the
3 Pursuant to 38 C.F.R. § 3.156(a), a claim may be
reopened on the submission of “new and material” evidence.
The regulation defines “new” evidence as “existing
evidence not previously submitted to agency decisionmakers.”
38 C.F.R. § 3.156(a). It defines “material” evidence
as “existing evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim.” Id. If a
previously denied claim (such as Mr. Kisor’s PTSD claim)
is later reopened and granted based on the submission of
new and material evidence, the effective date of benefits
is the date that the claimant filed the application to
reopen or the date entitlement arose, whichever is later.
See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). In this
case, under the new and material evidence approach, the
effective date for benefits would be June 5, 2006—the
date of Mr. Kisor’s request to reopen his claim. J.A. 25.
KISOR v. SHULKIN 5

decision, the rating was based upon evidence that included
the July 2007 psychiatric evaluation report diagnosing
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 examination
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 Disagreement.
In it, he challenged both the 50 percent disability rating and the effective date assigned by the RO. Kisor, 2016 WL 337517, at *1. Subsequently, in March of 2009, the RO issued a decision increasing Mr. Kisor’s
schedular rating to 70 percent. In addition, the RO granted a 100 percent rating on an extraschedular basis, effective June 5, 2006.4 J.A. 41–45. In January of 2010, the RO issued a Statement of the Case denying entitlement
to an earlier effective date for the grant of service connection for PTSD. See J.A. 53–65.
4 The VA evaluates a veteran’s disability level by
using diagnostic codes in the rating schedule of title 38 of
the Code of Federal Regulations. See 38 C.F.R. § 3.321(a);
see generally 38 C.F.R. §§ 4.40–4.150 (rating schedule).
The evaluation reflects a veteran’s base, “schedular”
rating. See Thun v. Peake, 22 Vet. App. 111, 114 (2008).
In exceptional cases, where the schedular rating is inadequate,
the veteran is eligible for a higher, “extraschedular”
disability rating. See 38 C.F.R. § 3.321(b)(1); Thun,
22 Vet. App. at 114–15.
6 KISOR v. SHULKIN
III.
Mr. Kisor appealed to the Board. Before the Board,
he contended that he was entitled to an effective date
earlier than June 5, 2006 for the grant of service connection
for PTSD. Specifically, he argued that the proper
effective date for his claim was the date of his initial claim
for disability compensation that was denied in May of

  1. See J.A. 47–48. In support, Mr. Kisor alleged clear
    and unmistakable error (CUE) in the May 1983 rating
    decision; he also alleged various duty-to-assist failures on
    the part of the VA. See J.A. 47–48, 84–87.
    The Board rejected these arguments. It ruled that the
    duty to assist had not been violated, that Mr. Kisor had
    failed to establish CUE, and that the RO’s May 1983
    rating decision became final when Mr. Kisor failed to
    perfect his appeal of the decision. See J.A. 85–88. The
    Board found no reason to upset the finality of the May
    1983 decision because “[t]he remedy available to the
    Veteran was to appeal,” but he did not do so. J.A. 86.
    The Board, however, raised “another way to challenge
    the May 1983 rating decision” that had not been advanced
    by Mr. Kisor. J.A. 88. That way turned on whether
    Mr. Kisor was eligible for an earlier effective date for his
    service connection under the regulation set forth at 38
    C.F.R. § 3.156(c). In contrast to 38 C.F.R. § 3.156(a),
    which only permits claims to be reopened on the submission
    of “new and material” evidence, § 3.156(c) allows
    claims to be reconsidered if certain conditions are met.
    See 38 C.F.R. § 3.156(c)(1) (noting that § 3.156(c) applies
    “notwithstanding paragraph (a)”).
    Subsection 3.156(c) includes two parts relevant to this
    appeal. First, paragraph (c)(1) defines the circumstances
    under which the VA must reconsider a veteran’s claim for
    benefits based on newly-associated service department
    records:
    KISOR v. SHULKIN 7
    [A]t any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim . . . .
    38 C.F.R. § 3.156(c)(1)
    . Second, paragraph (c)(3) establishes the effective date for any benefits granted as a result of reconsideration under paragraph (c)(1):
    An award made based all or in part on the records
    identified by paragraph (c)(1) of this section is effective
    on the date entitlement arose or the date
    the VA received the previously decided claim,
    whichever is later, . . . .
    38 C.F.R. § 3.156(c)(3).
    Section 3.156(c) thus provides for an effective date for
    claims that are reconsidered that is different from the
    effective date for claims that are reopened. As we pointed
    out in Blubaugh v. McDonald, “[i]n contrast to the general
    rule, § 3.156(c) requires the VA to reconsider a veteran’s
    claim when relevant service department records are
    newly associated with the veteran’s claims file, whether
    or not they are ‘new and material’ under § 3.156(a).” 773
    F.3d 1310, 1313 (Fed. Cir. 2014) (citing New and Material
    Evidence, 70 Fed. Reg. 35,388, 35,388 (June 20, 2005)).
    “In other words,” we observed, “§ 3.156(c) serves to place a
    veteran in the position he would have been in had the VA
    considered the relevant service department record before
    the disposition of his earlier claim.” Id.
    Applying the regulation, the Board considered whether
    the material Mr. Kisor submitted in connection with
    his June 2006 request to reopen warranted reconsidera 8 KISOR v. SHULKIN
    tion of his claim.5 If it did, then Mr. Kisor would have
    been eligible for an effective date of December of 1982 for
    his disability benefits, “the date the VA received the
    previously decided claim.” 38 C.F.R. § 3.156(c)(3).
    After reviewing the evidence, the Board denied
    Mr. Kisor 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 participation in Operation Harvest Moon after
    the May 1983 rating decision. J.A. 89–90. The Board
    concluded, 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 because there was no diagnosis of PTSD, and
    because service connection can be granted only if there is
    a current disability.6 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 log skip this
    antecedent to address the next service connection re-
    5 The newly-submitted material related to
    Mr. Kisor’s Marine Corps service in Vietnam, including
    his participation in Operation Harvest Moon. J.A. 94–97.
    These records had not been part of Mr. Kisor’s claims file
    in May of 1983 when the RO first denied his claim.
    6 Service connection for PTSD requires (1) a medical
    diagnosis of the condition, (2) a medically established
    link between current symptoms and an in-service stressor,
    and (3) credible evidence showing that the in-service
    stressor occurred. See 38 C.F.R. § 3.304(f); Golz v.
    Shinseki, 590 F.3d 1317, 1321–22 (Fed. Cir. 2010).
    KISOR v. SHULKIN 9
    quirement of a traumatic 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.
    Mr. Kisor appealed the Board’s decision to the Veterans
    Court. There, he argued that the Board had “failed to
    consider and apply the provisions of 38 C.F.R. § 3.156(c).”7
    Kisor, 2016 WL 337517, at *1. The court rejected the
    argument. The court noted that Mr. Kisor did not argue
    that the service department records presented after the
    May 1983 rating decision contained a diagnosis of PTSD,
    the absence of such a diagnosis having been the basis for
    the RO’s 1983 rating decision. Id. at *2. The Veterans
    Court stated that it was “not persuaded that the Board
    incorrectly applied § 3.156.” Id. at *3. Accordingly, it
    held that Mr. Kisor had “failed to demonstrate error in
    the Board’s findings that an effective date earlier than
    June 5, 2006, is not warranted for the grant of service
    7 Mr. Kisor’s appeal to the Veterans Court focused
    solely on the Board’s purported misinterpretation of 38
    C.F.R. § 3.156(c)(1). Mr. Kisor did not pursue his CUE or
    duty-to-assist claims before the Veterans Court, and he
    has not raised them before us. We therefore consider
    them waived. See, e.g., Emenaker v. Peake, 551 F.3d
    1332, 1337 (Fed. Cir. 2008) (considering an argument
    waived on appeal when it was not timely presented to the
    Veterans Court); SmithKline Beecham Corp. v. Apotex
    Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (“[A]rguments
    not raised in the opening brief are waived.”).
    10 KISOR v. SHULKIN
    connection for PTSD.” Id. Mr. Kisor timely appealed the
    Veterans Court’s decision.
    DISCUSSION
    I.
    Section 7292 of title 38 of the United States Code
    grants us jurisdiction over decisions of the Veterans
    Court. Section 7292 provides that we “‘shall decide all
    relevant questions of law’ arising from appeals from
    decisions of the Veterans Court, but, ‘[e]xcept to the
    extent that an appeal . . . presents a constitutional issue,

[we]

may not review (A) a challenge to a factual determination,
or (B) a challenge to a law or regulation as applied
to the facts of a particular case.’” Sneed v. McDonald, 819
F.3d 1347, 1350–51 (Fed. Cir. 2016) (quoting 38 U.S.C.
§ 7292(d)(1)–(2)).
As discussed more fully below, on appeal Mr. Kisor
argues that the Veterans Court misinterpreted 38 C.F.R.
§ 3.156(c)(1). An argument that the Veterans Court
misinterpreted a regulation falls within our jurisdiction.
See 38 U.S.C. § 7292(c) (granting this court “exclusive
jurisdiction to review and decide any challenge to the
validity of any . . . regulation or any interpretation thereof”
by the Veterans Court); Spicer v. Shinseki, 752 F.3d
1367, 1369 (Fed. Cir. 2014); Githens v. Shinseki, 676 F.3d
1368, 1371 (Fed. Cir. 2012).
We must set aside an interpretation of a regulation
that we find to be:
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege,
or immunity;
(C) in excess of statutory jurisdiction, authority,
or limitations, or in violation of a statutory right;
or
KISOR v. SHULKIN 11
(D) without observance of procedure required by
law.
38 U.S.C. § 7292(d)(1)(A)–(D); Sursely v. Peake, 551 F.3d
1351, 1354 (Fed. Cir. 2009).
II.
Mr. Kisor contends that, in affirming the decision of
the Board, the Veterans Court erred in its interpretation
of 38 C.F.R. § 3.156(c)(1).8 As seen, the regulation pro-
8 Mr. Kisor never argued before the Veterans Court
that the Board misinterpreted the term “relevant” in
§ 3.156(c). See J.A. 117–29 (Opening Brief), 155–65
(Reply Brief). Instead, as noted, he argued that the Board
“failed to consider and apply the provisions
of . . . § 3.156(c).” J.A. 123; see J.A. 128 (raising “a question
of regulatory interpretation” regarding whether “the
use of the phrase ‘that existed’ [in § 3.156(c)(1)] mean[s]
that the relevant official service department records must
have existed when the VA first decided the claim”).
Mr. Kisor’s failure to challenge the Board’s interpretation
of “relevant” before the Veterans Court could constitute
waiver. See Emenaker, 551 F.3d at 1337 (“In order to
present a legal issue in a veteran’s appeal, the appellant
ordinarily must raise the issue properly before the Veterans
Court . . . .”). The Board did determine, however, that
the “service department records received . . . were not
relevant.” J.A. 79; see J.A. 91 (stating that “those documents
were not relevant to the [VA’s] decision” denying
his 1982 claim); see also J.A. 147 (VA Response Brief
before the Veterans Court explaining that the Board
determined that the service records were not relevant).
And at oral argument before us, the government abandoned
its contention that Mr. Kisor had waived his argument
regarding the interpretation of § 3.156(c)(1). Oral
12 KISOR v. SHULKIN
vides that the VA will “reconsider” a claim if it “receives
or associates with the claims file 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) (emphasis added). Mr. Kisor states
that the VA should have reconsidered his claim under the
regulation and thus afforded him the favorable effective
date treatment that the regulation provides. He argues
that the Veterans Court, like the Board, “mistakenly interpreted the term ‘relevant’ as used in 38 C.F.R. § 3.156(c)(1) as related only to service department records that countered the basis of the prior denial.” Appellant’s Br. 5. In making this argument, he points to § 3.156(c)(1)(i), which provides in part that service department records “include, but are not limited to: . . .

[s]

ervice records that are related to a claimed in-service
event, injury, or disease, regardless of whether such
records mention the veteran by name, as long as the other
requirements of subsection of this section are met.”9
Appellant’s Br. 8–9. Stating that nothing in the regulation
“says that the service records must relate to the
reason for the last denial,” Mr. Kisor urges that a service
department record is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Appellant’s
Argument at 18:47–21:30 (No. 16-1929), http://
oralarguments.cafc.uscourts.gov/default.aspx?fl=
2016-1929.mp3. Accordingly, we decline to find waiver
here. See Singleton v. Wulff, 428 U.S. 106, 121 (1976)
(stating that waiver is an issue “left primarily to the
discretion of the courts of appeals”).
9 There is no dispute that the personnel records at
issue in this case are “service records” within the meaning
of 38 C.F.R. § 3.156(c)(1)(i).
KISOR v. SHULKIN 13
Br. 9–10 (quoting Counts v. Brown, 6 Vet. App. 473, 476
(1994)). According to Mr. Kisor, the newly-provided
service department records demonstrate that he was
subjected to the trauma of combat, thereby establishing
his exposure to an in-service stressor. Id. at 10–13.
The government responds that the Veterans Court
and the Board did not misinterpret § 3.156(c)(1). The
government takes the position that whether a service
department record is relevant depends upon the particular
claim and the other evidence of record. Appellee’s
Br. 14. Thus, the government posits, “if a record is one
that the VA had no obligation to consider because it would
not have mattered in light of the other evidence, then it
cannot trigger reconsideration.” Id. at 15.
Turning to the case at hand, the government states
that the records based upon which Mr. Kisor seeks reconsideration
under § 3.156(c)(1) address only the issue of
whether there was an in-service stressor, not the requisite
medical diagnosis of PTSD. Id. at 17. The government
states: “The issue of an in-service stressor was never
disputed in the 1983 claim; in fact, the examiner noted
that Mr. Kisor participated in Operation Harvest Moon
and ‘was involved in one major ambush which resulted in
13 deaths in a large company.’” Id. (citing J.A. 19–20).
Accordingly, the government argues that none of the
service department records at issue were relevant under
the regulation because they related to the existence of an
in-service stressor, which was not in dispute, rather than
to a diagnosis of PTSD, the absence of which was the
basis for the RO’s denial of Mr. Kisor’s claim in 1983. Id.
at 17–18.
Finally, the government urges us to reject Mr. Kisor’s
argument that the Veterans Court and the Board construed
the regulation too narrowly because they interpreted
relevance as “related only to records that
countered the basis of the prior denial.” Id. at 18 (citing
14 KISOR v. SHULKIN
Appellant’s Br. 5). The government contends that neither
tribunal required that the evidence relate to the basis for
the prior denial in all cases. Id. at 18–19. Rather, the
evidence simply has to be “relevant.” The government
concludes that “[i]t just so happened that in the present
case, evidence related to the in-service stressor could not
be relevant without a medical diagnosis for PTSD at the
time of the previous claim.” Id. at 19.
III.
For the following reasons, we hold that the Veterans
Court did not misinterpret § 3.156(c)(1). We therefore
affirm the court’s decision affirming the Board’s decision
denying Mr. Kisor entitlement to an effective date earlier
than June 5, 2006, for the grant of service connection for
PTSD.
At the heart of this appeal is Mr. Kisor’s challenge to
the VA’s interpretation of the term “relevant” in 38 C.F.R.
§ 3.156(c)(1).10 As a general rule, we defer to an agency’s
interpretation of its own regulation “as long as the regulation
is ambiguous and the agency’s interpretation is
neither plainly erroneous nor inconsistent with the regulation.”
Gose v. U.S. Postal Serv., 451 F.3d 831, 836 (Fed.
Cir. 2006) (citing Gonzales v. Oregon, 546 U.S. 243 (2006);
Christensen v. Harris Cty., 529 U.S. 576, 588 (2000);
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413–
14 (1945)); see also Long Island Care at Home, Ltd. v.
10 The Board interpreted 38 C.F.R. § 3.156(c)(1)
when it ruled that Mr. Kisor’s service department records
were not “relevant” under that subsection. See J.A 90–91.
Because the Board is part of the VA, see 38 U.S.C.
§ 7101(a); Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 431 (2011), the Board’s interpretation of the
regulation is deemed to be the agency’s interpretation.
KISOR v. SHULKIN 15
Coke, 551 U.S. 158, 171 (2007) (“[A]n agency’s interpretation
of its own regulations is controlling unless plainly
erroneous or inconsistent with the regulations being
interpreted.” (internal quotation marks omitted) (quoting
Auer v. Robbins, 519 U.S. 452, 461 (1997))).
We hold that § 3.156(c)(1) is ambiguous as to the
meaning of the term “relevant.” In our view, the regulation
is vague as to the scope of the word, and canons of
construction do not reveal its meaning. See Gose, 451
F.3d at 839 (ruling that a regulatory phrase is ambiguous
when “the regulation is vague as to the scope of the
phrase”); Cathedral Candle Co. v. Int’l Trade Comm’n,
400 F.3d 1352, 1362 (Fed. Cir. 2005) (holding a statute
ambiguous when “traditional tools of statutory construction”
did not resolve the construction dispute). Significantly,
§ 3.156(c)(1) does not specify whether “relevant”
records are those casting doubt on the agency’s prior
rating decision, those relating to the veteran’s claim more
broadly, or some other standard. This uncertainty in
application suggests that the regulation is ambiguous.
See, e.g., Abbott Labs. v. United States, 573 F.3d 1327,
1331 (Fed. Cir. 2009) (holding the regulatory term “affect”
was ambiguous when the regulation did not specify the
types of effects falling within its scope).
The varying, alternative definitions of the word “relevant”
offered by the parties further underscore
§ 3.156(c)(1)’s ambiguity. See Nat’l R.R. Passenger Corp.
v. Bos. & Me. Corp., 503 U.S. 407, 418 (1992) (“The existence
of alternative dictionary definitions . . . , each making
some sense under the statute, itself indicates that the
statute is open to interpretation.”); Hymas v. United
States, 810 F.3d 1312, 1320–21 (Fed. Cir. 2016). In his
briefs, Mr. Kisor defines “relevant” in a way mirroring the
federal rules of evidence. Compare Appellant’s Br. 9–10
(defining “relevant” as “any tendency to make the existence
of any fact that is of consequence to the determination
of the action more [or less] probable” (emphasis
16 KISOR v. SHULKIN
omitted)), with Fed. R. Evid. 401(a)–(b) (defining “relevant”
as “any tendency to make a fact more or less probable”
when the “fact is of consequence in determining the
action”). Mr. Kisor thus posits that his personnel records
are “relevant” because they speak to the presence of an inservice
stressor, one of the requirements of compensation
for an alleged service-connected injury. See 38 C.F.R.
§ 3.304(f).
The government, in contrast, collects various competing
definitions from case law, legal dictionaries, and legal
treatises. See Appellee’s Br. 14–15 (defining “relevant”
as, inter alia, “bearing upon or properly applying to the
matter at hand,” and “[l]ogically connected and tending to
prove or disprove a matter in issue” (emphasis added)
(citing Forshey v. Principi, 284 F.3d 1335, 1351 (Fed. Cir.
2002) (en banc); Relevant, BLACK’S LAW DICTIONARY (10th
ed. 2014))). These definitions support the government’s
argument that, in this case, Mr. Kisor’s personnel records
were not “relevant” because they addressed the matter of
an in-service stressor, which was not “in issue,” rather
than the issue of whether he suffered from PTSD, which
was “in issue.” Both parties insist that the plain regulatory
language supports their case, and neither party’s
position strikes us as unreasonable. We thus conclude
that the term “relevant” in § 3.156(c)(1) is ambiguous. See
Viraj Grp. v. United States, 476 F.3d 1349, 1355–56 (Fed.
Cir. 2007) (ruling that a “regulation is ambiguous on its
face” when competing definitions for a disputed term
“seem reasonable”); Info. Tech. & Applications Corp. v.
United States, 316 F.3d 1312, 1320–21 (Fed. Cir. 2003).
Because § 3.156(c)(1) is ambiguous, the only remaining
question is whether the Board’s interpretation of the
regulation is “plainly erroneous or inconsistent” with the
VA’s regulatory framework. Long Island, 551 U.S. at 171.
As seen, the Board reasoned that Mr. Kisor’s supplemental
personnel records were not relevant because they
contained information that (1) was already known,
KISOR v. SHULKIN 17
acknowledged, and undisputed in the RO’s 1983 decision,
and (2) did not purport to affect the outcome of that
decision. J.A. 90–91. The Board’s ruling was thus based
upon the proposition that, as used in § 3.156(c)(1), “relevant”
means noncumulative and pertinent to the matter
at issue in the case. The Board’s interpretation does not
strike us as either plainly erroneous or inconsistent with
the VA’s regulatory framework.
In this case, the records Mr. Kisor submitted to the
RO in 2006 detailing his participation in Operation Harvest
Moon were superfluous to the information already
existing in his file. Indeed, in 1983 the VA examiner
expressly recounted how Mr. Kisor experienced “one
major ambush which resulted in 13 deaths in a large
company,” and that “[t]his occurred during Operation
Harvest Moon.” J.A. 19–20 (emphasis added). In addition,
Mr. Kisor’s personnel records submitted in 2006 are
not probative here because they do not purport to remedy
the defects of his 1982 PTSD claim. The RO denied
Mr. Kisor’s PTSD claim because the requisite diagnosis of
PTSD was lacking. J.A. 21–23; see 38 C.F.R. § 3.304(f)
(requiring a diagnosis of PTSD to establish service connection);
Young v. McDonald, 766 F.3d 1348, 1354 (Fed.
Cir. 2014) (“[T]he VA has long required a medical diagnosis
of PTSD to establish service connection.”). Mr. Kisor
does not urge that the 2006 records provide that diagnosis.
See Appellant’s Br. 5–6. Instead, the records show
that Mr. Kisor was exposed to an in-service stressor—a
wholly separate element for establishing service connection
that, critically, was never at issue in the case. J.A.
19–20. Because Mr. Kisor’s 2006 records did not remedy
the defects of his 1982 claim and contained facts that
were never in question, we see no plain error in the
Board’s conclusion that the records were not “relevant” for
purposes of § 3.156(c)(1). See Blubaugh, 773 F.3d at 1314
(reasoning that § 3.156(c) did not apply when service
records “did not remedy [the] defects” of a prior rating
18 KISOR v. SHULKIN
decision and contained facts that “were never in question”).
Finally, as noted, Mr. Kisor argues that the Board
and Veterans Court construed § 3.156(c)(1) too narrowly,
by interpreting “relevant” records to be “records that
countered the basis of the prior denial [of benefits].”
Appellant’s Br. 5. We do not agree with this reading of
the Board’s or the Veterans Court’s decision. Nothing in
either tribunal’s interpretation of § 3.156(c)(1) strikes us
as requiring, across the board, that relevant records must
relate to the basis of a prior denial. Rather, we understand
the Board and Veterans Court as finding only that,
on the facts and record of this case, Mr. Kisor’s latersubmitted
materials were not relevant to determination of
his claim. See Kisor, 2016 WL 337517, at *2–3.
CONCLUSION
For the foregoing reasons, we see no error in the
Board’s interpretation of § 3.156(c)(1) or in the Veterans
Court’s affirmance of the Board’s interpretation. See
Kisor, 2016 WL 337517, at *2. The decision of the Veterans
Court affirming the Board’s decision denying
Mr. Kisor entitlement to an effective date earlier than
June 5, 2006 for service connection for PTSD is therefore
affirmed.
AFFIRMED
COSTS
No costs.

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