For Veterans Who've Had It With The VA

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Home > Fed.Cir.; Kisor v. Wilkie, No. 2016-1929(Decided: August 12, 2020); court should not afford Auer deference unless the regulation is genuinely ambiguous; 38 C.F.R. § 3.156(c)(1); we too conclude that the term “relevant” in § 3.156(c) is not genuinely ambiguous; in order to be “relevant,” a record must speak to a matter in issue, in other words, a matter in dispute; we agree with the government that, in the context of the regulation, the term has only one reasonable meaning. To be relevant, a record must address a dispositive issue and therefore affect the outcome of the case;

Fed.Cir.; Kisor v. Wilkie, No. 2016-1929(Decided: August 12, 2020); court should not afford Auer deference unless the regulation is genuinely ambiguous; 38 C.F.R. § 3.156(c)(1); we too conclude that the term “relevant” in § 3.156(c) is not genuinely ambiguous; in order to be “relevant,” a record must speak to a matter in issue, in other words, a matter in dispute; we agree with the government that, in the context of the regulation, the term has only one reasonable meaning. To be relevant, a record must address a dispositive issue and therefore affect the outcome of the case;

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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 Division,
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, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.

Case: 16-1929 Document: 71 Page: 1 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) (“Kisor 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

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Fed.Cir.; Kisor v. Wilkie, No. 2016-1929(Decided: August 12, 2020); court should not afford Auer deference unless the regulation is genuinely ambiguous; 38 C.F.R. § 3.156(c)(1); we too conclude that the term "relevant" in § 3.156(c) is not genuinely ambiguous; in order to be "relevant," a record must speak to a matter in issue, in other words, a matter in dispute; we agree with the government that, in the context of the regulation, the term has only one reasonable meaning. To be relevant, a record must address a dispositive issue and therefore affect the outcome of the case;

United States Court of Appeals for the Federal Circuit JAMES L. KISOR,Claimant-Appellantv.ROBERT WILKIE, SECRETARY OF VETERANSAFFAIRS,Respondent-Appellee 2016-1929 Appeal from the United States Court of Appeals forVeterans Claims in No. 14-2811, Judge Alan G. Lance, Sr. Decided: August 12, 2020 KENNETH M. CARPENTER, Law Offices of CarpenterChartered, Topeka, KS, argued for claimant-appellant.IGOR HELMAN, Commercial Litigation Branch,...