Veteranclaims’s Blog

July 28, 2021

Ortiz v. McDonough, No. 2020-1911 (Decided: July 28, 2021) ; We conclude that the addition of § 3.304(f)(3) in 2010 was “liberalizing” under § 3.114(a); within § 3.114(a)’s “liberalizing” category; § 3.304(f)(3) reduced a veteran’s affirmative burden of production to establish an element of entitlement to compensation;

Filed under: Uncategorized — veteranclaims @ 5:21 pm

United States Court of Appeals for the Federal Circuit


GERALDO P. ORTIZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2020-1911


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-70, Judge Michael P. Allen.


Decided: July 28, 2021


KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.


Before NEWMAN, TARANTO, and CHEN, Circuit Judges.
Case: 20-1911 Document: 34 Page: 1 Filed: 07/28/2021
2 ORTIZ v. MCDONOUGH
TARANTO, Circuit Judge.
The Department of Veterans Affairs (VA) awarded veteran
Geraldo Ortiz benefits for a service-connected disability
based on posttraumatic stress disorder (PTSD), acting
pursuant to a regulatory change that lightened his previous
evidentiary burden. The dispute before us concerns the
starting date for the benefits awarded, i.e., the effective
date of the award. We conclude that the regulatory change
that enabled Mr. Ortiz to obtain the benefits was a “liberalizing”
one, entitling Mr. Ortiz to the earlier effective date,
and hence the larger award, that he seeks.
Mr. Ortiz had first claimed service-connected disability
benefits based on PTSD, under 38 U.S.C. § 1110, in 1997.
But VA denied the claim because Mr. Ortiz did not provide
corroborating evidence, as required by the PTSD regulation,
38 C.F.R. § 3.304(f), that the events identified as leading
to his PTSD occurred in his military service. That
decision became final. Years later, in 2010, the Secretary
of Veterans Affairs amended § 3.304(f) by adding what is
now subsection (f)(3) to state an exception to the corroborating-
evidence requirement in circumstances like those of
Mr. Ortiz. On May 22, 2012, more than a year after the
regulatory change took effect, Mr. Ortiz moved to reopen
his claim, invoking the newly lightened proof requirement.
Within months, VA reopened his claim and granted the
claim, rating him 100 percent disabled and making the
benefits effective as of May 22, 2012, the date VA received
the request to reopen.
Mr. Ortiz contended that the effective date should have
been one year earlier (May 22, 2011). For that contention,
he relied on 38 C.F.R. § 3.114(a), which implements 38
U.S.C. § 5110(g) and provides that when compensation “is
awarded or increased pursuant to a liberalizing law, or a
liberalizing VA issue approved by the Secretary or by the
Secretary’s direction” and the “claim [for compensation] is
reviewed at the request of the claimant more than 1 year
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ORTIZ v. MCDONOUGH 3
after the effective date of the law or VA issue,” the effective
date is “1 year prior to the date of receipt of such request.”
38 C.F.R. § 3.114(a)(3). Mr. Ortiz argued that § 3.304(f)(3)
was a “liberalizing” law or VA issue, entitling him to the
extra year of benefits. The Board of Veterans’ Appeals and
then the Court of Appeals for Veterans Claims (Veterans
Court) rejected his request for an earlier effective date.
While accepting that Mr. Ortiz’s claim was granted “pursuant
to” § 3.304(f)(3), they concluded that § 3.304(f)(3) was
not a “liberalizing” measure.
We reverse. We conclude that the addition of
§ 3.304(f)(3) in 2010 was “liberalizing” under § 3.114(a). It
is sufficient to come within § 3.114(a)’s “liberalizing” category
that § 3.304(f)(3) reduced a veteran’s affirmative burden
of production to establish an element of entitlement to
compensation.
In these circumstances, the correct effective
date for Mr. Ortiz’s benefits is May 22, 2011, rather than
May 22, 2012.1
I
A
The precedents that the parties principally debate are
Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994), and Routen
v. West, 142 F.3d 1434 (Fed. Cir. 1998). In those decisions,
this court did not directly interpret and apply the effectivedate
“liberalizing” regulation at issue here, 38 C.F.R.
§ 3.114(a), to answer an effective-date question, as no such
question was presented. Rather, the court relied on 38
U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a) to draw an inference
about a circumstance in which a new original claim is
not barred by the otherwise-governing statutory finality
1 Unless noted otherwise, all citations are to provisions
as they existed before the Veterans Appeals Improvement
and Modernization Act of 2017, Pub. L. No. 115–55,
131 Stat. 1105, and the regulations implementing that Act.
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4 ORTIZ v. MCDONOUGH
protections that attach to rejection of an earlier claim. It
is useful, therefore, to begin with a summary of the statutory
and regulatory provisions that provide a general rule
of finality for claim-rejecting VA decisions but allow for exceptions,
including the exception recognized in Spencer and
Routen.
Statutes and regulations governing veterans benefits
expressly state general rules of finality for VA decisions.
That is so for a decision by a VA regional office (or agency
of original jurisdiction) unless timely appealed to the
Board. See 38 U.S.C. § 7105(c) (“If no notice of disagreement
is filed in accordance with this chapter within the
prescribed period, the action or determination shall become
final and the claim will not thereafter be reopened or allowed,
except as may otherwise be provided by regulations
not inconsistent with this title.”); 38 C.F.R. §§ 20.1104,
3.104(a), 3.2600. And it is also so for a Board decision unless
timely appealed to the Veterans Court. See 38 U.S.C.
§ 7104(b) (“Except as provided in section 5108 of this title,
when a claim is disallowed by the Board, the claim may not
thereafter be reopened and allowed and a claim based upon
the same factual basis may not be considered.”); 38 C.F.R.
§ 20.1100.
As the above-quoted statutes make clear, however, exceptions
are authorized. One exception, not invoked in the
present case, is for “clear and unmistakable error” in the
original decision. 38 U.S.C. §§ 5109A(a), 7111; see also 38
C.F.R. § 20.1400. A decision reversing or revising the earlier
decision on that basis “has the same effect as if the decision
had been made on the date of the prior decision,” 38
U.S.C. §§ 5109A, 7111, so the effective date of an award of
benefits previously “denied due to clear and unmistakable
error” is as early as “the veteran’s filing of the original
claim,” Sears v. Principi, 349 F.3d 1326, 1331 (Fed. Cir.
2003); see also 38 C.F.R. § 3.400(k). A second exception,
which was invoked in the present case, is for “reopening”
based on “new and material evidence.” 38 U.S.C. § 5108;
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ORTIZ v. MCDONOUGH 5
38 C.F.R. § 3.156(a).2 In general, the earliest effective date
for an award on a reopened claim is the date of the request
for reopening, not the date of the original claim. See Sears,
349 F.3d at 1331; 38 C.F.R. § 3.400(q)–(r).3
This court concluded in Spencer that, in Routen’s
words, there is also a “third” path around an otherwise-final
claim rejection—namely, a new original claim—if certain
statutory or agency-adopted changes have been made
since the earlier rejection. Routen, 142 F.3d at 1438, 1442.
The court in Spencer quoted with approval the Veterans
Court’s reasoning:
When a provision of law or regulation creates a new
basis of entitlement to benefits, as through liberalization
of the requirements for entitlement to a
benefit, an applicant’s claim of entitlement under
such law or regulation is a claim separate and distinct
from a claim previously and finally denied
2 Section 5108 now is titled “Supplemental claims,”
uses the term “readjudicate” rather than “reopen,” and requires
“new and relevant” instead of “new and material” evidence.
38 U.S.C. § 5108(a) (“In General.—If new and
relevant evidence is presented or secured with respect to a
supplemental claim, the Secretary shall readjudicate the
claim taking into consideration all of the evidence of record.”);
see also 38 C.F.R. § 3.156(a) (implementing § 5108).
3 A regulation provides for different effective-date
treatment in defined circumstances when a claim is reopened
and reconsidered based on “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). In that situation, an award may
have an effective date as early as “the date VA received the
previously decided claim.” Id. § 3.156(c)(3); see also Blubaugh
v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014);
Loyd v. Shulkin, 682 F. App’x 906, 909 (Fed. Cir. 2017).
Case: 20-1911 Document: 34 Page: 5 Filed: 07/28/2021
6 ORTIZ v. MCDONOUGH
prior to the liberalizing law or regulation. The applicant’s
later claim, asserting rights which did not
exist at the time of the prior claim, is necessarily a
different claim.
Spencer, 17 F.3d at 372 (quoting Spencer v. Brown, 4 Vet.
App. 283, 288–89 (1993) (Spencer CAVC); alteration and
internal quotation marks omitted). This court agreed with
the Veterans Court that the finality protection of § 7104(b)
“‘does not preclude de novo adjudication of a claim, on essentially
the same facts as a previously and finally denied
claim, where an intervening and substantive change in law
or regulation created a new basis for entitlement to a benefit.’”
Id. (quoting Spencer CAVC, 4 Vet. App. at 289).
In ruling that the statute allows a new original claim
based on certain changes of law, notwithstanding the otherwise-
prescribed finality of an earlier claim’s rejection,
this court and the Veterans Court in Spencer, as well as
this court in Routen, relied on what they found to be a necessary
implication of a statutory effective-date provision,
38 U.S.C. § 5110(g), implemented by 38 C.F.R. § 3.114(a).
Routen, 142 F.3d at 1441 (relying on statute and regulation);
Spencer, 17 F.3d at 371 (relying on statute); Spencer
CAVC, 4 Vet. App. at 287–89 (relying on statute and regulation).
The decisions in those cases do not directly apply
those provisions, which merely prescribe an effective date
for certain awards of compensation; there was no effectivedate
issue in those cases because there were no awards in
those cases at all. Rather, the courts in those cases discerned
in the effective-date statute (and regulation) an implied
presupposition that a new original claim must
sometimes be available, modifying the otherwise-applicable
statutory (and regulatory) guarantees of finality of an
earlier decision. The court in Routen itself stressed that
very difference—between direct application of the effectivedate
provisions (which was not at issue) and the scope of
an implied statutory modification to allow a new original
claim (which was). See 142 F.3d at 1441.
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ORTIZ v. MCDONOUGH 7
B
Unlike Spencer and Routen, the present case involves
an effective-date question requiring direct application of
the regulation adopted to implement the statute.
Section 5110(g), one of the subsections of the statutory
provision titled “Effective dates of awards,” dates back to

  1. Addressing a change-of-law situation, it provides
    that, “[s]ubject to the provisions of section 5101” (concerning
    “claims and forms”),
    where compensation . . . is awarded or increased
    pursuant to any Act or administrative issue, the effective
    date of such award or increase shall be fixed
    in accordance with the facts found but shall not be
    earlier than the effective date of the Act or administrative
    issue. In no event shall such award or increase
    be retroactive for more than one year from
    the date of application therefor or the date of administrative
    determination of entitlement, whichever
    is earlier.
    38 U.S.C. § 5110(g). The language is not limited to reconsideration
    of a claim, but reaches an original claim. And it
    applies not just where “compensation . . . is awarded”
    (where no compensation had previously been awarded) but
    also where “compensation . . . is . . . increased” (where, for
    example, a rating is increased).
    A regulation, also dating back to 1962, implements that
    statutory subsection. Under 38 C.F.R. § 3.114, titled
    “Change of law or Department of Veterans Affairs issue,”
    subsection (a) provides:
    (a) Effective date of award. Where . . . compensation
    . . . is awarded or increased pursuant to a liberalizing
    law, or a liberalizing VA issue approved
    by the Secretary or by the Secretary’s direction, the
    effective date of such award or increase shall be
    fixed in accordance with the facts found, but shall
    Case: 20-1911 Document: 34 Page: 7 Filed: 07/28/2021
    8 ORTIZ v. MCDONOUGH
    not be earlier than the effective date of the act or
    administrative issue. Where . . . compensation . . .
    is awarded or increased pursuant to a liberalizing
    law or VA issue which became effective on or after
    the date of its enactment or issuance, in order for a
    claimant to be eligible for a retroactive payment
    under the provisions of this paragraph the evidence
    must show that the claimant met all eligibility criteria
    for the liberalized benefit on the effective date
    of the liberalizing law or VA issue and that such
    eligibility existed continuously from that date to
    the date of claim or administrative determination
    of entitlement. The provisions of this paragraph
    are applicable to original and reopened claims as
    well as claims for increase.
    (1) If a claim is reviewed on the initiative of
    VA within 1 year from the effective date of
    the law or VA issue, or at the request of a
    claimant received within 1 year from that
    date, benefits may be authorized from the
    effective date of the law or VA issue.
    (2) If a claim is reviewed on the initiative of
    VA more than 1 year after the effective date
    of the law or VA issue, benefits may be authorized
    for a period of 1 year prior to the
    date of administrative determination of entitlement.
    (3) If a claim is reviewed at the request of
    the claimant more than 1 year after the effective
    date of the law or VA issue, benefits
    may be authorized for a period of 1 year
    prior to the date of receipt of such request.
    Case: 20-1911 Document: 34 Page: 8 Filed: 07/28/2021
    ORTIZ v. MCDONOUGH 9
    38 C.F.R. § 3.114(a). The regulation expressly applies to
    “original and reopened claims as well as claims for increase.”
    Id.4
    There is dispute about what the consequences are for
    the effective date of an award when, on a claim that has
    been reopened, the award is made “pursuant to” a “liberalizing”
    change. In that situation, the award’s effective date
    may not be earlier than the effective date of the underlying
    change, but it may be as early as one year before the request
    based on the change was made. See McCay v. Brown,
    106 F.3d 1577, 1581 (Fed. Cir. 1997). The issue in this case
    is whether § 3.114(a) applies to a particular regulatory
    change.
    C
    Mr. Ortiz served during the Vietnam era, a “period of
    war,” 38 C.F.R. § 3.2(f), within the meaning of 38 U.S.C.
    § 1110, which provides for compensation for service-connected
    disability—specifically, “[f]or disability resulting
    from personal injury suffered or disease contracted in line
    of duty, or for aggravation of a preexisting injury suffered
    or disease contracted in line of duty, in the active military,
    naval, or air service, during a period of war”—subject to
    exceptions that do not apply here. It is undisputed before
    us that, having earlier denied Mr. Ortiz’s claim for disability
    benefits based on PTSD, VA reopened Mr. Ortiz’s claim
    for such benefits and granted the claim in 2012 and that
    VA did so pursuant to the 2010 addition of what is now
    subsection (f)(3) to 38 C.F.R. § 3.304. There is no dispute
    about the propriety of the reopening or the grant. The only
    question presented concerns the proper effective date under
    38 C.F.R. § 3.114(a), and the only issue in dispute about
    4 Amended to implement the statutory changes from
    the Modernization Act, the regulation now reads “original
    and supplemental claims as well as claims for increase.”
    Case: 20-1911 Document: 34 Page: 9 Filed: 07/28/2021
    10 ORTIZ v. MCDONOUGH
    the applicability of § 3.114(a) is whether the 2010 adoption
    of what is now § 3.304(f)(3) was a “liberalizing” change under
    § 3.114(a). The proper resolution depends on the regulations
    governing PTSD-based claims for service-connected
    disability benefits under 38 U.S.C. § 1110.
    To secure benefits under § 1110 (or under § 1131,
    which governs peacetime service), a veteran generally
    must “satisfy a three-element test: (1) the existence of a
    present disability; (2) in-service incurrence or aggravation
    of a disease or injury; and (3) a causal relationship between
    the present disability and the disease or injury incurred or
    aggravated during service—the so-called ‘nexus’ requirement.”
    Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir.
    2013). Congress prescribed in 38 U.S.C. § 1154(a) that the
    Secretary must provide, in regulations governing service
    connection, for consideration of various facts and types of
    evidence. For “any veteran who engaged in combat with
    the enemy in active service,” Congress added, in § 1154(b),
    that “the Secretary shall accept as sufficient proof of service-
    connection . . . satisfactory lay or other evidence of service
    incurrence or aggravation of such injury or disease, if
    consistent with the circumstances, conditions, or hardships
    of such service . . . . Service-connection of such injury or
    disease may be rebutted by clear and convincing evidence
    to the contrary.”
    Exercising his rulemaking authority under 38 U.S.C.
    § 501(a), the Secretary in 1993 promulgated 38 C.F.R.
    § 3.304(f) to implement 38 U.S.C. § 1154 for claims based
    on PTSD. Direct Service Connection (Post-traumatic
    Stress Disorder), 58 Fed. Reg. 29,109 (May 19, 1993); see
    also Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans
    Affairs, 669 F.3d 1340, 1343 (Fed. Cir. 2012) (NOVA)
    (“The Secretary has the authority to issue regulations
    which establish the requirements for veterans to qualify for
    service-connected PTSD injuries.”). At the time of Mr.
    Ortiz’s first filing for PTSD-based benefits in 1997,
    § 3.304(f) generally provided that a grant of benefits based
    Case: 20-1911 Document: 34 Page: 10 Filed: 07/28/2021
    ORTIZ v. MCDONOUGH 11
    on “post-traumatic stress disorder requires medical evidence
    establishing a clear diagnosis of the condition, credible
    supporting evidence that the claimed inservice stressor
    actually occurred, and a link, established by medical evidence,
    between current symptomatology and the claimed
    inservice stressor.” 38 C.F.R. § 3.304(f) (1997) (emphasis
    added).5
    Over time, VA promulgated exceptions to the general
    requirements. After Mr. Ortiz’s original claim was finally
    decided, but a couple of years before Mr. Ortiz moved to
    reopen his claim, the Secretary further implemented 38
    U.S.C. § 1154 and promulgated an additional exception—
    what is now 38 C.F.R. § 3.304(f)(3)—to the general requirements
    for a claim of entitlement based on PTSD. See
    Stressor Determinations for Posttraumatic Stress Disorder,
    74 Fed. Reg. 42,617 (Aug. 24, 2009) (Proposed Rule);
    75 Fed. Reg. 39,843 (July 13, 2010) (Final Rule). The effective
    date of the new subsection (f)(3) was July 12, 2010. Final
    Rule, 75 Fed. Reg. at 39,843. Subsection (f)(3) provides
    in relevant part:
    5 In 1999, VA amended the regulation by reordering
    the three requirements and clarifying the “type of medical
    evidence required to establish service connection,” but VA
    maintained the corroboration requirement. Direct Service
    Connection (Post-Traumatic Stress Disorder), 64 Fed. Reg.
    32,807, 32,807 (June 18, 1999). The amended § 3.304(f)
    stated: “Service connection for post-traumatic stress disorder
    requires medical evidence diagnosing the condition in
    accordance with [38 C.F.R.] § 4.125(a) of this chapter; a
    link, established by medical evidence, between current
    symptoms and an in-service stressor; and credible supporting
    evidence that the claimed in-service stressor occurred.”
    38 C.F.R. § 3.304(f) (1999) (emphasis added); see also
    NOVA, 669 F.3d at 1343; AZ v. Shinseki, 731 F.3d 1303,
    1310 (Fed. Cir. 2013).
    Case: 20-1911 Document: 34 Page: 11 Filed: 07/28/2021
    12 ORTIZ v. MCDONOUGH
    If a stressor claimed by a veteran is related to the
    veteran’s fear of hostile military or terrorist activity
    and a VA psychiatrist or psychologist, or a psychiatrist
    or psychologist with whom VA has
    contracted, confirms that the claimed stressor is
    adequate to support a diagnosis of posttraumatic
    stress disorder and that the veteran’s symptoms
    are related to the claimed stressor, in the absence
    of clear and convincing evidence to the contrary,
    and provided the claimed stressor is consistent
    with the places, types, and circumstances of the
    veteran’s service, the veteran’s lay testimony alone
    may establish the occurrence of the claimed in-service
    stressor. . . .
    38 C.F.R. § 3.304(f)(3) (emphasis added).6
    As we have explained, § 3.304(f)(3) “grants veterans a
    special exception to th[e] normal evidentiary burden by
    permitting them to rely on their lay testimony alone without
    corroborating evidence to prove that their claimed inservice
    PTSD stressor occurred.” Hall v. Shinseki, 717
    F.3d 1369, 1371 (Fed. Cir. 2013); see also NOVA, 669 F.3d
    at 1343–44 (“VA proposed a rule on August 24, 2009, creating
    an additional situation where a veteran could establish
    PTSD service-connection without supporting evidence
    regarding the claimed in-service stressor.”). This exception
    to the normal corroborating-evidence requirement applies
    “if three [pre]conditions are satisfied: (1) a VA psychiatrist
    or psychologist ‘confirms that the claimed stressor is adequate
    to support a diagnosis of post-traumatic stress disorder
    and that the veteran’s symptoms are related to the
    6 Before the 2010 amendment, 38 C.F.R. § 3.304(f)
    had four exceptions enumerated as paragraphs (1)–(4).
    The 2010 amendment redesignated what were paragraphs
    (3) and (4) as paragraphs (4) and (5) and added “new paragraph
    (f)(3).” Final Rule, 75 Fed. Reg. at 39,852.
    Case: 20-1911 Document: 34 Page: 12 Filed: 07/28/2021
    ORTIZ v. MCDONOUGH 13
    claimed stressor’; (2) the VA psychiatrist or psychologist’s
    findings are not contradicted by ‘clear and convincing evidence’;
    and (3) ‘the claimed stressor is consistent with the
    places, types, and circumstances of the veteran’s service.’”
    Sanchez-Navarro v. McDonald, 774 F.3d 1380, 1384 (Fed.
    Cir. 2014) (quoting 38 C.F.R. § 3.304(f)(3)).
    The change made a decisive difference for Mr. Ortiz.
    VA denied his 1997 claim, despite a VA medical examiner’s
    opinion stating a PTSD diagnosis tied to Vietnam combat,
    because Mr. Ortiz failed to present corroborating evidence
    of the in-service stressor. J.A. 17 (stating that “the claimed
    in-service stressor(s) cannot be confirmed”). That decision
    became final in 1999, but when VA received Mr. Ortiz’s motion
    to reopen the claim on May 22, 2012, VA quickly reopened
    the claim and granted it, with a 100 percent
    disability rating. J.A. 30–36 (September 26, 2012 decision).
    There is no dispute before us about whether “new
    and material evidence” was present, justifying the reopening,
    or about Mr. Ortiz’s entitlement to service-connected
    disability benefits based on PTSD. And VA itself stated
    that it granted the claim “because [it] conceded that [Mr.
    Ortiz] experienced fear due to hostile military or terrorist
    activity while serving in Vietnam and because the VA examiner
    related [his] diagnosis of PTSD to that fear,” which
    was now enough because new § 3.304(f)(3) “relaxed the evidentiary
    standard for establishing the required in-service
    stressor” for claims based on PTSD. J.A. 40; see also J.A.
    40 (New § 3.304(f)(3) “eliminated the requirement for corroborating
    evidence.”); J.A. 42 (“Easing Standard”).
    D
    The only dispute before us is whether § 3.304(f)(3) was
    a “liberalizing” change under § 3.114(a). The regional office
    concluded that it was not. J.A. 40, 103. The Board
    reached the same conclusion, after “acknowledg[ing] that
    the Veteran’s service connection claim for PTSD was ultimately
    granted pursuant to an amended PTSD regulation.”
    Case: 20-1911 Document: 34 Page: 13 Filed: 07/28/2021
    14 ORTIZ v. MCDONOUGH
    J.A. 113; see also J.A. 110–14. The Board relied on the Veterans
    Court’s holding in Foreman v. Shulkin, 29 Vet. App.
    146 (2018), that § 3.304(f)(3) was not “liberalizing” under
    § 3.114(a). See J.A. 114. The Veterans Court then affirmed:
    It accepted the Board’s determination that Mr.
    Ortiz’s “claim was granted based on [the 2010] change in
    VA’s regulations addressing establishing an in-service
    stressor,” but it concluded that it was bound by its Foreman
    precedent. Ortiz v. Wilkie, No. 19-0070, 2020 WL 1173715,
    at *1–2 (Vet. App. Mar. 12, 2020).
    Mr. Ortiz timely appealed. We have jurisdiction under
    38 U.S.C. § 7292 to review the Veterans Court’s ruling because
    whether § 3.304(f)(3) made a “liberalizing” change
    within the meaning of § 3.114(a) presents a question of law.
    See Spencer, 17 F.3d at 372.
    II
    We conclude that the addition of § 3.304(f)(3) made a
    “liberalizing” change under § 3.114(a). We decide the issue
    without applying the deference doctrine of Auer v. Robbins,
    519 U.S. 452 (1997), as clarified in Kisor v. Wilkie, 139 S.
    Ct. 2400 (2019). Although we doubt that the doctrine
    would apply to the question presented, we need not decide
    the doctrine’s applicability, or whether our answer to the
    legal question is a matter of unambiguous meaning (making
    the doctrine immaterial), because the Secretary does
    not invoke the doctrine. Cf. HollyFrontier Cheyenne Refining,
    LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2180
    (2021) (declining to apply statutory-interpretation doctrine
    of Chevron U.S.A. Inc. v. Natural Resources Defense Council,
    Inc., 467 U.S. 837 (1984), where not invoked by the government);
    County of Maui v. Hawaii Wildlife Fund, 140 S.
    Ct. 1462, 1474 (2020) (similar); see Massachusetts Mut. Life
    Ins. Co. v. United States, 782 F.3d 1354, 1369–70 (Fed. Cir.
    2015) (Auer deference forfeitable).
    Case: 20-1911 Document: 34 Page: 14 Filed: 07/28/2021
    ORTIZ v. MCDONOUGH 15
    A
    We generally must “interpret the words consistent with
    their ordinary meaning at the time” of adoption. Wisconsin
    Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018)
    (cleaned up). The Secretary agrees that, in general, “to ‘liberalize’
    means to make policies or laws less strict.” Secretary
    Response Br. at 17 (citing Black’s Law Dictionary
    (11th ed. 2019)). This general meaning was common at the
    time of § 3.114(a)’s promulgation and the 2010 amendment
    to § 3.304, and it remains common now. See, e.g., Webster’s
    Third New International Dictionary 1303 (1961) (“to make
    less strict or rigorous”); The American College Dictionary
    702 (1962) (“to make or become more liberal,” i.e., “not
    strict or rigorous”); The American Heritage Dictionary 727
    (2d College ed. 1982) (similar); Oxford English Dictionary
    (2d ed. 1989) (“to free from narrowness” and “[t]o remove
    restrictions on”); The American Heritage Dictionary of the
    English Language 1036–37 (3d ed. 1992) (“To make liberal
    or more liberal,” i.e., “[n]ot strict”); Black’s Law Dictionary
    1057 (10th ed. 2009) (“To make a system, laws, policies, or
    moral attitudes less strict, censorious, and rhadamanthine.”);
    Oxford English Dictionary (3d ed. 2010) (“to free
    from narrowness or strictness; to relax”); see also, e.g., S.
    Rep. No. 87-2042, at 1 (1962) (using “liberalizing” in this
    sense); H. Rep. No. 87-2123, at 1 (1962) (same); Final Rule,
    75 Fed. Reg. at 39,843 and 39,845 (same).
    The 2010 change was a “liberalizing” one under the
    term’s ordinary meaning. Before the 2010 addition of
    § 3.304(f)(3), the legal standard governing a claim of PTSDbased
    disability in Mr. Ortiz’s circumstances required corroborating
    evidence, beyond the veteran’s own testimony,
    to confirm the in-service occurrence of the asserted
    stressor. The 2010 change eliminated that requirement of
    the affirmative case for veterans like Mr. Ortiz. The requirements
    for affirmatively showing entitlement, in short,
    became less strict. See Sanchez-Navarro, 774 F.3d at 1384
    (Section “3.304(f)(3) applies a more relaxed standard” than
    Case: 20-1911 Document: 34 Page: 15 Filed: 07/28/2021
    16 ORTIZ v. MCDONOUGH
    preexisting subsection (f).); Hall, 717 F.3d at 1371 (Section
    3.304(f)(3) “grants veterans a special exception to th[e] normal
    evidentiary burden” stated in the preexisting subsection
    (f).); NOVA, 669 F.3d at 1344 (referring to § 3.304(f)(3)
    as a “lower evidentiary standard”).
    The Secretary agrees: “We do not dispute that section
    3.304(f)(3) made the evidentiary burden for establishing
    service connection for PTSD based upon fear of hostile terrorist
    or military activity less strict.” Secretary Response
    Br. at 17 n.7 (citing above passages). For good reason: Before
    the change, Mr. Ortiz’s claim was rejected, whereas after
    the change, it was granted undisputedly because of the
    elimination of a concrete component of what he was previously
    required to show in his affirmative case for entitlement
    to an award.
    In fact, the 2010 change is a prototypical example of a
    “liberalizing” change resulting in an “award.” Cf. McBoyle
    v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.) (relying
    on the idea of a “picture” “evoke[d] in the common
    mind”). The term “liberalizing” when used with “law” and
    “VA issue” in the context of a “claim” most naturally covers
    a relaxation of a claimant’s affirmative burden. That is exactly
    what the 2010 change does. A veteran generally has
    the affirmative burden of production to establish the elements
    of a claim of entitlement (though VA has a duty to
    assist). See 38 U.S.C. § 5107(a) (“Except as otherwise provided
    by law, a claimant has the responsibility to present
    and support a claim for benefits under laws administered
    by the Secretary.”); id. § 5103A (duty to assist); 38 C.F.R.
    § 3.159 (implementing § 5103A). The 2010 amendment
    changed concrete components of what VA must consider
    “sufficient proof,” 38 U.S.C. § 1154(b), to establish an element
    of entitlement, so it relaxed the veteran’s affirmative
    responsibility in presenting and supporting a claim for benefits.
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    ORTIZ v. MCDONOUGH 17
    This meaning fits the context of 38 U.S.C. § 5110(g)
    and 38 C.F.R. § 3.114(a). Those provisions provide up to
    one extra year of benefits when an award has been made
    or increased pursuant to a qualifying “[c]hange of law or
    [VA] issue” (§ 3.114(a) title)—allowing veterans a brief extra
    period to become aware and to take advantage of a
    change that newly entitles them to an award or an increase
    of compensation. The ordinary meaning of “liberalizing” is
    not in any way out of place in that context. When Congress
    enacted the provision now codified as § 5110(g), the congressional
    committees, using the language of “liberalizing,”
    explained: “Claimants who have no knowledge of the benefits
    or are not identified by [VA] . . . may be penalized by
    not filing promptly.” S. Rep. No. 87-2041, at 6; H. Rep. No.
    87-2123 at 6 (same). Applying the term’s ordinary meaning
    mitigates the delay penalty.
    B
    The Secretary nevertheless argues that we should not
    apply the ordinary meaning of “liberalizing” here, resting
    that argument entirely on Spencer and Routen. For two
    independent reasons, however, we reject the argument.
    First, neither Spencer nor Routen actually decided the issue
    of what changes suffice to trigger application of the regulation
    (or, for that matter, of the statute) to give a veteran
    the earlier effective date. They decided a different issue:
    what the implications of the statute (and regulation) are
    for the availability of a new original claim that, outside the
    statutory reconsideration paths, avoids the otherwise-applicable
    statutory bar based on a previous final rejection of
    a veteran’s earlier claim. Second, the change in the present
    case materially differs from the particular changes that the
    court in Spencer and Routen held insufficient to allow a
    new original claim. We conclude not only that the two precedents
    provide no persuasive basis for rejecting the ordinary-
    meaning application of “liberalizing” to cover
    § 3.304(f)(3) but also that, even if the formulations used by
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    18 ORTIZ v. MCDONOUGH
    Spencer and Routen are borrowed to define “liberalizing,”
    § 3.304(f)(3) qualifies.
    1
    Unlike this case, neither Spencer nor Routen involved
    an effective-date issue, so in neither case did this court directly
    apply 38 C.F.R. § 3.114(a) or decide what “liberalizing”
    means in identifying a change of law or VA issue that
    qualifies for the earlier effective date of an award. Indeed,
    unlike this case—where the claim was reopened and there
    is no dispute about the propriety of that reopening (or grant
    of the claim)—neither Spencer nor Routen involved a claim
    that was reopened under 38 U.S.C. § 5108. The portions of
    both decisions on which the Secretary relies involve only
    whether a new original claim was available because of the
    asserted change of law or regulation.
    In Spencer, the veteran had filed a claim for benefits
    based on his diagnosis of multiple sclerosis. 17 F.3d at 370.
    The regional office denied his claim because he failed to
    provide sufficient evidence that “the disability was incurred
    in or aggravated by his service in the military.” Id.
    The regional office’s decision became final. Years later, the
    veteran sought both to reopen his finally decided claim because
    of new and material evidence and to have his claim
    considered as a new original claim because there was an
    “intervening change in law,” namely the passage of the Veterans’
    Judicial Review Act of 1988 (VJRA). Id. at 371–73.
    The Board, and then the Veterans Court, determined that
    the veteran’s claim warranted neither reopening nor fresh
    consideration. Id. at 370–71.
    We agreed. As to the denial of reopening for want of
    new and material evidence, we concluded that we lacked
    jurisdiction to address it, for reasons not pertinent to the
    issue now before us in this case. See id. at 373–74. The
    veteran’s right to proceed therefore depended on whether
    he had available a new original claim. We adopted the Veterans
    Court’s conclusion, as quoted above, that § 5110(g),
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    ORTIZ v. MCDONOUGH 19
    though not directly authorizing a new avenue for reconsideration
    of a final decision, implicitly presupposes that
    sometimes a change of law or regulation can support the
    availability of a new original claim; but we recognized that
    such availability requires a modification of the express
    statutory protection of finality, notably that of § 7104, and
    the limited express statutory provisions for reconsideration.
    Id. at 371–72; Spencer CAVC, 4 Vet. App. at 287–89.
    It was in harmonizing express statutory commands (finality,
    with two limited paths around finality) with an implication
    from another statutory provision directed at another
    issue (effective dates) that we decided that a new original
    claim requires “a new basis of entitlement to a claimed benefit
    as the result of an intervening change in law or regulation.”
    Spencer, 17 F.3d at 373. And we held that the
    generic VJRA changes on which the veteran relied did not
    meet that standard because they “were unmistakably procedural
    in nature” and thus did not “substantively affect[]
    the nature” of the finally decided claim. Id. at 372–73.
    Routen involved a materially identical posture. In that
    case, the veteran’s claim had been denied in a final decision
    before the relevant regulatory change. 142 F.3d at 1436–
  2. After the regulatory change (concerning the government’s
    rebuttal burden on in-service aggravation of a
    preexisting injury), the veteran sought to reopen his claim
    based on new and material evidence and to have his claim
    considered de novo as a new original claim. Id. The regional
    office declined to reopen the veteran’s claim for new
    and material evidence and did not consider the claim a new
    original claim. Id. The Board and the Veterans Court
    again agreed with the regional office. Id.
    So did we. As to the denial of reopening, we determined
    that a “presumption” is not itself new and material evidence.
    Id. at 1439–41. As to the new-original-claim issue,
    we concluded that the relevant regulatory amendment was
    insufficient to support allowing the claim as a new original
    one. Id. at 1441–42. We recognized that the issue was one
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    20 ORTIZ v. MCDONOUGH
    of seeking to harmonize the express statutory finality principle
    of § 7104 with an implied presupposition found in
    § 5110(g) (and its implementing regulation), where neither
    of the two express statutory authorizations for reconsideration
    (clear and unmistakable error, and reopening) was
    applicable. Routen, 142 F.3d at 1442 (emphasizing that
    “the logic of the intervening change rule, if it is to escape
    the bar of § 7104(b), must be that the intervening change
    in law creates a new cause of action”). And we held that
    changing the government’s rebuttal burden (newly to require
    clear and unmistakable evidence) was a “procedural”
    one, and made no “substantive change” in what the veteran
    had to show to be entitled to an award, and thus did not
    support recognition of a new original claim. Id.
    Spencer and Routen therefore involved only the question
    of how far express statutory provisions—the statutory
    finality bar, subject to only limited express statutory routes
    for reconsideration—had to be deemed implicitly modified
    by § 5110(g) and its implementing regulation, which address
    only the effective date of an award for which the statute
    elsewhere provides express authority. That is not the
    question here. In this case, there is no question of modifying
    an express statutory means for reconsideration: It is
    undisputed before us that one of the express means (reopening
    based on new and material evidence) was properly
    used. The only question here is the proper application of
    the effective-date prescription (§ 5110(g) as implemented
    by § 3.114(a)) in a matter that undisputedly fell within an
    express statutory avenue of reconsideration. That question
    did not arise in Spencer and Routen, and unlike the question
    answered in those cases, the question here does not
    present any facial conflict with other express legal constraints
    whose modification must be minimized. Routen itself
    recognized that the questions are distinct. 142 F.3d at
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    ORTIZ v. MCDONOUGH 21
    1441 (The regulation Ҥ 3.114 addresses a different issue.
    It sets the effective date of awards[.]”).7
    “When a prior decision does not ‘squarely address[] [an]
    issue,’ a court remains ‘free to address the issue on the merits’
    in a subsequent case.” Arthrex, Inc. v. Smith & Nephew,
    Inc., 880 F.3d 1345, 1349 (Fed. Cir. 2018) (alterations by
    Arthrex; quoting Brecht v. Abrahamson, 507 U.S. 619, 631
    (1993)). Spencer and Routen do not control the resolution
    of the issue here. And the Secretary has given no sound
    reason that the questions in those cases and the question
    in this case must have the same answer. Relying only on
    Spencer and Routen, which we conclude do not control, the
    Secretary has furnished no reason that interpretation of
    the regulation at issue, § 3.114, should depart from its ordinary
    meaning—which makes sense in context and under
    7 The distinction is reinforced by the fact that the
    statute (§ 5110(g)) and the regulation (§ 3.114(a)) include
    changes that result in an “increase” of an already granted
    award, yet the court in Routen spoke of a “new cause of action,”
    142 F.3d at 1436, 1441–42. Although the court in
    Routen did not give a specific meaning to that phrase different
    from the “substantive,” “new basis of entitlement”
    language that it (and the court in Spencer) used, that language
    would be odd as a label for a change (covered by
    § 5110(g) and § 3.114(a)) that simply increases amounts of
    compensation, as by providing for a higher rating than the
    one the same facts previously supported. Cf. Vet. Aff. Op.
    Gen. Couns. Prec. 9-92 (opining that “[w]here an increased
    rating is occasioned only by revision of criteria for rating
    psychoneurotic disorders which became effective February
    3, 1988, the increased rating is to be considered based on a
    liberalizing VA issue per 38 U.S.C. § 5110(g) and 38 C.F.R.
    § 3.114,” even though the elements to grant the claim remained
    unchanged).
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    22 ORTIZ v. MCDONOUGH
    which, as noted, the Secretary agrees § 3.304(f)(3) was a
    liberalizing change.
    2
    We conclude that Spencer and Routen are not controlling
    here for another reason: The 2010 addition of
    § 3.304(f)(3) materially differs from the changes that Spencer
    and Routen deemed insufficient to support a new original
    claim. Even if, in place of the ordinary meaning, the
    formulations used by Spencer and Routen are borrowed to
    define “liberalizing,” the 2010 addition of § 3.304(f)(3) qualifies.
    a
    Just before the 2010 addition, a showing of service connection
    for a PTSD claimant in Mr. Ortiz’s position required:
    “medical evidence diagnosing the condition in
    accordance with [38 C.F.R.] § 4.125(a) of this chapter; a
    link, established by medical evidence, between current
    symptoms and an in-service stressor; and credible supporting
    evidence that the claimed in-service stressor occurred.”
    38 C.F.R. § 3.304(f); see also supra n.5. After the 2010 addition,
    the “credible supporting evidence” requirement—a
    requirement of corroboration—no longer applies for those
    in Mr. Ortiz’s position. Specifically, “the veteran’s lay testimony”
    suffices if certain preconditions are met (and the
    government does not provide clear and convincing contrary
    evidence). 38 C.F.R. § 3.304(f)(3).8 The 2010 change thus
    8 The provision added in 2010 requires satisfaction
    of certain preconditions, such as confirmation from specified
    psychiatrist or psychologist that “the claimed stressor
    is adequate to support a diagnosis of [PTSD]” and consistency
    of the stressor with the veteran’s service. 38
    C.F.R. § 3.304(f)(3). The Secretary, which agrees that the
    2010 provision is less strict than the predecessor version,
    has not shown that these preconditions make the
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    ORTIZ v. MCDONOUGH 23
    eliminated a crucial, concrete component of what was required
    for the veteran’s affirmative case to establish entitlement.
    This change is fairly described as a “new basis of entitlement.”
    Spencer, 17 F.3d at 372, 373. It is also fairly
    described as more than “procedural.” Id.; see also Carmell
    v. Texas, 529 U.S. 513, 544–45 (2000) (concluding that an
    elimination of a corroboration requirement went to the
    “sufficiency of the evidence . . . for meeting the burden of
    proof” and thus was not a “mode[] of procedure”). In fact,
    the court in Routen suggested that something materially
    similar, if not identical, would meet its own standard. See
    142 F.3d at 1441–42 (“Thus, if the old law required proof of
    facts A, B, and C, and the new law requires proof of facts
    A, B, and D, a veteran who lost the A, B, C case under the
    old law because he could not establish C would seem free
    to claim under the new law, assuming he can establish A,
    B, and D.”).
    The Secretary suggests that there is a difference between
    a fact as an element and evidence of such a fact. See
    Secretary Response Br. at 13–14. But Spencer and Routen
    do not elaborate such a distinction. Moreover, it remains
    true that the 2010 addition of § 3.304(f)(3) eliminated a
    crucial component of a veteran’s affirmative case, whether
    the component is called evidence, fact, or an element, and
    that eliminating a corroboration requirement is more substantive
    than procedural and, in a real-world sense, creates
    a new basis of entitlement. Section 3.304(f) itself, quoted
    above, in prescribing the elements of the veteran’s case,
    pays little attention to the distinction between evidence
    and the fact evidenced, including a mix of the two categories
    in its three requirements—“evidence diagnosing
    elimination of the corroboration requirement, so that the
    veteran’s lay testimony suffices, id., anything other than
    liberalizing.
    Case: 20-1911 Document: 34 Page: 23 Filed: 07/28/2021
    24 ORTIZ v. MCDONOUGH
    [PTSD],” “a link, established by medical evidence,” and
    “supporting evidence.” And VA’s general counsel, in at
    least one precedential opinion, has treated relaxation of evidentiary
    requirements for a claimant as substantive for
    purposes of the “liberalizing” standard. See Vet. Aff. Op.
    Gen. Couns. Prec. 26-97 (“Because this change liberalized
    the evidentiary basis on which entitlement to a benefit
    could be established, it may be considered a substantive
    change providing a new basis for establishing entitlement
    to benefits and, consequently, a liberalizing VA issue for
    purposes of 38 C.F.R. § 3.114(a).” (emphases added)); cf.
    Vet. Aff. Op. Gen. Couns. Prec. 9-92 (opining that “[w]here
    an increased rating is occasioned only by revision of criteria
    for rating psychoneurotic disorders which became effective
    February 3, 1988, the increased rating is to be considered
    based on a liberalizing VA issue per 38 U.S.C. § 5110(g)
    and 38 C.F.R. § 3.114,” even though the elements to grant
    the claim remained unchanged).
    In relevant respects, the 2010 change is akin to a creation
    of a presumption that, when certain preconditions are
    met, a crucial element of a service-connection case is presumed
    proved. That matters because, notwithstanding
    Spencer and Routen, the Secretary agrees that such a presumption
    is a liberalizing change. Secretary Response Br.
    at 14 n.5; see also Effective Dates of Benefits for Disability
    or Death Caused By Herbicide Exposure; Disposition of
    Unpaid Benefits After Death of Beneficiary, 68 Fed. Reg.
    50,966, 50,966 (Aug. 25, 2003) (noting that the “regulations
    establishing presumptions that certain diseases are associated
    with herbicide exposure in service” were “liberalizing”);
    Oral Arg. at 15:56–16:48, 19:50–21:28. And we have
    treated such a presumption as a liberalizing change. See
    Hunter v. Shinseki, 538 F. App’x 904, 905 (Fed. Cir. 2013)
    (concluding that a statute and certain implementing regulations
    that “modified the presumption of herbicide exposure
    for veterans who served in Vietnam . . . [were]
    liberalizing provision[s]”); Williams v. Principi, 310 F.3d
    Case: 20-1911 Document: 34 Page: 24 Filed: 07/28/2021
    ORTIZ v. MCDONOUGH 25
    1374, 1377–78, 1380–81 (Fed. Cir. 2002) (accepting that a
    creation of a presumption is liberalizing).
    Section 3.304(f)(3) is materially similar to a presumption.
    A presumption itself is an “[e]videntiary rule,” which
    effectively “supplies the required evidence” when specified
    “preconditions are satisfied.” Snyder v. McDonough, 1
    F.4th 996, 1004 (Fed. Cir. 2021); see also Routen, 142 F.3d
    at 1440 (“When the predicate evidence is established that
    triggers the presumption, the further evidentiary gap is
    filled by the presumption.”). Section 3.304(f)(3) does the
    same. Presumptions are generally rebuttable on proof that
    meets a specified standard of convincingness. Routen, 142
    F.3d at 1440. Section 3.304(f)(3) states that the government
    can overcome the exception to the corroboration requirement
    when there is “clear and convincing evidence to
    the contrary.”
    For those reasons, the 2010 addition of § 3.304(f)(3)
    fairly comes within the key formulations articulated in
    Spencer and Routen if those formulations are borrowed to
    define “liberalizing.” It established a new basis of entitlement
    by alleviating the substantive burden of presenting
    specified concrete evidence previously required of the veteran
    as part of the affirmative case. Although the court in
    Routen also used the phrase “new cause of action,” 142 F.3d
    at 1436, 1441–42, it did not specify content for that phrase
    apart from the “new basis of entitlement” and “substantive”
    formulations. In fact, the Secretary argues here that
    those formulations state the standard of Spencer and
    Routen, without separate reference to “new cause of action.”
    See Secretary Response Br. at 16 (“As explained
    above, a ‘liberalizing law or VA issue’ within the context of
    38 C.F.R. § 3.114(a) and 38 U.S.C. § 5110(g) is one that effects
    a substantive change in law or regulation and creates
    a new basis for entitlement to a benefit. Routen, 142 F.3d
    at 1441–42; Spencer, 17 F.3d 368.”). We conclude that
    § 3.304(f)(3) lies on the qualifying side of the line drawn (in
    answering a different question) in Spencer and Routen.
    Case: 20-1911 Document: 34 Page: 25 Filed: 07/28/2021
    26 ORTIZ v. MCDONOUGH
    b
    Spencer and Routen, on their facts, also did not involve
    changes like those made by the 2010 addition of
    § 3.304(f)(3). The changes ruled on in those cases did not
    eliminate concrete components of the veteran’s affirmative
    case for entitlement to particular benefits.
    In Spencer, we rejected the contention that a set of general
    changes made by the VJRA created a new basis of entitlement,
    concluding that the “reforms implemented by
    the VJRA were directed to improving the adjudicative process.”
    17 F.3d at 372. The opinion’s focus was on the new
    availability of judicial review, but the court mentioned, as
    well, the provision that “[w]hen there is an approximate
    balance of positive and negative evidence regarding any issue
    material to the determination of a matter, the Secretary
    shall give the benefit of the doubt to the claimant,” 38
    U.S.C. § 5107(b). See Spencer, 17 F.3d at 372. Neither
    § 5107(b) nor the other measures invoked by the veteran in
    Spencer altered any particular component of the veteran’s
    case. Even § 5107(b) is an across-the-board standard for
    how persuaded VA must be of whatever particular submission
    the veteran makes. The Secretary here has made no
    argument specifically focused on § 5107(b), let alone one
    contending that it is relevantly similar to § 3.304(f)(3).
    Routen likewise did not involve a concrete relaxation of
    a component of a veteran’s affirmative case. Rather, it involved
    a heightening of the government’s rebuttal burden
    in a particular situation. A regulation provided that, when
    a veteran claims disability based on aggravation during
    service of a preexisting injury, see 38 U.S.C. § 1110 (wartime
    service), § 1131 (peacetime service), all the veteran
    needed to show was a pre-service injury that worsened during
    service. The government could rebut the presumption
    that it was the service that aggravated the injury by showing
    that the worsening was the natural progression of the
    preexisting injury. For wartime veterans, the government
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    ORTIZ v. MCDONOUGH 27
    had to make that showing by “clear and unmistakable evidence,”
    but for peacetime veterans, the government could
    make the showing by “available evidence of a nature generally
    acceptable as competent.” 142 F.3d at 1438 (internal
    quotation marks omitted). The regulatory change at issue
    in Routen was VA’s imposition on the government, for its
    rebuttal case involving aggravation claims of peacetime
    veterans, of the higher degree of persuasiveness (clear and
    unmistakable evidence) already imposed on the government
    for wartime veterans. Id.
    It was that regulatory change Routen held not to qualify.
    That change did not alter the veteran’s affirmative
    case at all. It altered only the government’s rebuttal case—
    and did so only at the general level of specifying how persuasive
    the government’s evidence must be, not by altering
    particular components of proof. Those features critically
    differ from the elimination of a proof element of a veteran’s
    affirmative case that was effected by the 2010 addition of
    § 3.304(f)(3).
    C
    To the extent relevant, VA’s statements in adopting the
    2010 the Final Rule underscore the conclusion that
    § 3.304(f)(3) is liberalizing. In the Final Rule, VA recognized
    that the 2010 amendment effectively “eliminate[d]”
    an evidentiary “requirement” when the specified preconditions
    were met. See 75 Fed. Reg. at 39,843 (explaining that
    “[t]his amendment eliminates the requirement for corroborating
    that the claimed in-service stressor occurred if” the
    preconditions are met (emphasis added)); Proposed Rule,
    74 Fed. Reg. at 42,617 (same). And VA characterized the
    effect of § 3.304(f)(3) as “liberalizing.” See Final Rule, 75
    Fed. Reg. at 39,843 (“The Department of Veterans Affairs
    (VA) is amending its adjudication regulations governing
    service connection for posttraumatic stress disorder
    (PTSD) by liberalizing in some cases the evidentiary standard
    for establishing the required in-service stressor.”
    Case: 20-1911 Document: 34 Page: 27 Filed: 07/28/2021
    28 ORTIZ v. MCDONOUGH
    (emphasis added)); id. at 39,845 (“Opposition to Liberalizing
    Evidentiary Standard”); id. (“VA received written comments
    objecting to the liberalizing evidentiary standard for
    PTSD claims based on fear of hostile military or terrorist
    activity.”).
    The Veterans Court in Foreman concluded that the
    2010 addition of § 3.304(f)(3) was “procedural in nature and
    therefore not liberalizing for effective date purposes” and
    stated that its conclusion was “bolster[ed]” by VA’s statements
    “that § 3.304(f)(3) was intended to decrease the burden
    on veterans and VA in researching claimed stressors,
    improve timeliness, and ensure consistent decision-making.”
    29 Vet. App. at 152. To be sure, the Final Rule says
    that § 3.304(f)(3) would “facilitate the timely processing of
    PTSD claims by simplifying the development and research
    procedures that apply to these claims.” 75 Fed. Reg. at
    39,843; see also id. at 39,845 (“Finally, we believe that this
    rule will improve the timeliness of the adjudication of
    claims of all veterans by eliminating the need to search for
    corroborating evidence in certain cases.”); Proposed Rule,
    74 Fed. Reg. at 42,618 (“Improved timeliness, consistent
    decision-making, and equitable resolution of PTSD claims
    are the intended results of the revised regulation.”). But
    those statements do not suggest a procedural character of
    the change actually made: A substantive change can be
    made to achieve process benefits. For example, a presumption
    of service connection would improve timeliness and
    consistency of decisionmaking, yet this court and VA have
    determined that a law or VA issue creating such a presumption
    is liberalizing.
    Finally, VA in the Final Rule asserted that the 2010
    addition of § 3.304(f)(3) “governs procedural matters rather
    than creating a new basis for entitlement to service connection
    for PTSD because it merely relaxes under certain circumstances
    the evidentiary standard for establishing
    occurrence of a stressor.” 75 Fed. Reg. at 39,851. On appeal,
    VA does not ask for deference to that legal
    Case: 20-1911 Document: 34 Page: 28 Filed: 07/28/2021
    ORTIZ v. MCDONOUGH 29
    characterization. The statement by itself does not alter our
    analysis of what the Final Rule actually does, whether the
    change meets the best understanding of “liberalizing” in
    § 3.114(a), or the proper understanding and implications of
    Spencer and Routen.
    III
    For the foregoing reasons, we reverse the decision of
    the Veterans Court.
    The parties shall bear their own costs.
    REVERSED
    Case: 20-1911 Document: 34 Page: 29 Filed: 07/28/2021

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