Kisor: Petition for panel, en banc rehearing denied

Kisor v. Shulkin, 880 F.3d 1378 (Jan. 31, 2018) (per curiam order)

SUMMARY: The majority of the en banc Court denied the petition for rehearing. However, three judges dissented on the basis that the original panel decision was predicated on Auer deference, “despite the Supreme Court’s repeated reminder that statutes concerning veterans are to be construed liberally in favor of the veteran.” 

FULL DECISION 

Kisor: 38 C.F.R. § 3.156(c), EARLIER EFFECTIVE DATE

Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. Sept. 7, 2017)

HELD: When newly received service records do not “remedy the defects” of a prior claim, those records are not “‘relevant’ for purposes of § 3.156(c)” and thus will not warrant an earlier effective date.

SUMMARY: Mr. Kisor was a Vietnam combat veteran. In 1982, he filed a claim for service connection for PTSD. His Vet Center therapist submitted a letter with a diagnosis of PTSD. However, a 1983 VA (C&P) psychiatrist diagnosed a personality disorder. The RO denied the claim due to the lack of a PTSD diagnosis. Mr. Kisor did not appeal this decision and it became final.

In 2006, he filed a request to reopen his previously denied claim. He subsequently submitted a psychiatric evaluation showing a diagnosis of PTSD. He also submitted service records showing his combat history. The RO obtained an opinion from a VA examiner who confirmed the diagnosis of PTSD. The RO then made a Formal Finding of Information Required to Document the Claimed Stressor and verified his combat service. The RO granted service connection for PTSD, rated 50%, effective June 5, 2006, the date it received his request to reopen. The grant was based on the PTSD diagnosis and the Formal Finding of Information.

Mr. Kisor appealed for a higher rating and an earlier effective date. The RO granted a higher rating, but denied an earlier effective date.

Mr. Kisor appealed to the Board, arguing that there was clear and unmistakable error (CUE) in the 1983 RO decision. The Board rejected his arguments, but identified an alternative argument for an earlier effective date – via 38 C.F.R. § 3.156(c), which 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).” (quoting Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014)). The Board considered whether the new evidence warranted reconsideration of his claim such that he would be entitled to a 1982 effective date. The Board determined that the new records were not “relevant” for purposes of § 3.156(c) because the 1983 decision denied service connection due to a lack of a PTSD diagnosis – and there was no dispute as to his combat status or in-service stressor.  

Mr. Kisor appealed to the CAVC, arguing that the Board failed to apply § 3.156(c). The Court rejected this argument, noting that the newly submitted service records did not contain a diagnosis of PTSD – and that the lack of such diagnosis was the basis for the 1983 denial. The Court found no error in the Board’s application of § 3.156(c).

Mr. Kisor appealed to the Federal Circuit, arguing that the Veterans Court misinterpreted § 3.156(c)(1). He argued for a broad interpretation of the word “relevant” based on the Federal Rules of Evidence, which would find a service record “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.”

The Secretary argued for a narrower interpretation of “relevant” that “depends upon the particular claim and the other evidence of record.” The Secretary stated that Mr. Kisor’s newly submitted service records only relate to the existence of an in-service stressor – not to a diagnosis of PTSD – and that the “issue of an in-service stressor was never disputed in the 1983 claim.” The Secretary stated that neither the Board nor the Veterans Court “required that the evidence relate to the basis for the prior denial in all cases.” However, in Mr. Kisor’s case, the evidence relating to the in-service stressor “could not be relevant without a medical diagnosis for PTSD at the time of the previous claim.”

The Federal Circuit first determined that the term “relevant” in 38 C.F.R. § 3.156(c)(1) was ambiguous, and found that the Board’s interpretation was not “plainly erroneous or inconsistent with VA’s regulatory framework.” The Court found that the newly submitted service records were “superfluous” and determined that since they “did not remedy the defect of his 1982 claim and contained facts that were never in question,” there was no error in the Board’s conclusion that they were not “relevant” for purposes of § 3.156(c)(1).

In response to Mr. Kisor’s argument that the Veterans Court construed § 3.156(c)(1) too narrowly, the Federal Circuit held that their interpretation did not require “that relevant records must relate to the basis of a prior denial,” but rather that “on the facts and record of this case, Mr. Kisor’s later-submitted materials were not relevant to [the] determination of his claim.” The Court thus affirmed the CAVC’s decision.

FULL DECISION