Kisor v. McDonough

• Decision Date: 12 August 2020
• Docket Number: 2016-1929
• Citation: 995 F.3d 1316
• Parties: James L. KISOR, Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

995 F.3d 1316

James L. KISOR, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2016-1929

United States Court of Appeals, Federal Circuit.

Opinion Issued: August 12, 2020

Opinion Modified: April 30, 2021^*

Kenneth M. Carpenter, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant. Also represented by Paul Whitfield Hughes, McDermott, Will & Emery LLP, Washington, DC.

Igor Helman, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Jeffrey B. Clark, Martin F. Hockey, Jr., Robert Edward Kirschman, Jr. ; Y. Ken Lee, Samantha Ann Syverson, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Roman Martinez, Latham & Watkins LLP, for amici curiae American Veterans, National Organization of Veterans’ Advocates, Inc., Paralyzed Veterans of America, Veterans of Foreign Wars of the United States, Vietnam Veterans of America. Also represented by Gregory B. in den Berken.

Before Reyna, Schall, and Wallach, Circuit Judges.

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 Affairs ("VA") will reconsider a claim after a final decision if it receives "relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim." 38 C.F.R. § 3.156(c)(1). The regulation further states that "[a]n award made based all or in part on the records identified by [ § 3.156(c)(1) ] is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." Id. § 3.156(c)(3).

In Mr. Kisor's case, the Board concluded that two service department records, which were received in 2006 and 2007, were not "relevant" under the regulation because they did not pertain to the basis of the 1983 denial of Mr. Kisor's claim, which was the lack of a diagnosis of PTSD. J.A. 85, 89, 90. Rather, they pertained to whether Mr. Kisor was in combat in "Operation Harvest Moon," a military operation in Vietnam in 1965. In that regard, when it denied Mr. Kisor's claim, the VA Regional Office ("RO") had before it a VA psychiatric examiner's report that recited Mr. Kisor's account of his participation in Operation Harvest Moon, see J.A. 19–20, and the RO did not dispute that account. The Board reasoned that the documents would not have changed the "outcome" of the VA's 1983 decision, which was based on the lack of "a diagnosis of PTSD," because they bore on a matter relating to entitlement to service connection for PTSD that was not in dispute: the presence of an in-service stressor. Id. at 90–91. The Board thus denied Mr. Kisor an effective date earlier than June 5, 2006, for a grant of service connection for his PTSD. J.A. 91. June 5, 2006 was the date Mr. Kisor submitted a request to reopen his claim, which the VA granted. J.A. 34. Pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(q) – (r), as in effect in 2014, the effective date of the grant of service connection for Mr. Kisor's reopened claim was the date he submitted his request to reopen.

In our prior decision, we held that the Board had not erred in construing the term "relevant" as it appears in § 3.156(c)(1). In reaching that holding, we concluded that the term "relevant" was ambiguous and had more than one reasonable meaning. Kisor I , 869 F.3d at 1367–68. We therefore deferred, under Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), to the Board's interpretation of the term, which we found to be reasonable. Kisor I , 869 F.3d at 1367–69.

The case is now before us again on remand from the Supreme Court. See Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019) (" Kisor II "). In Kisor II , the Court held that, in Kisor I , we were too quick to extend Auer deference to the Board's interpretation of "relevant" as it appears in § 3.156(c)(1). The Court therefore vacated our decision and remanded the case to us with the instruction that we decide whether Auer deference "applies to the agency interpretation at issue." 139 S. Ct. at 2408. The Supreme Court stated that "[f]irst and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous." Id. at 2415. The Court directed us on remand "to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning." Id. at 2424.

For the reasons stated below, we now conclude that, in the setting of § 3.156(c)(1), the term "relevant" is not "genuinely ambiguous." Id. at 2415. Accordingly, Auer deference is not appropriate in this case. In our view, in the context of § 3.156(c)(1), the term "relevant" has only "one reasonable meaning," the meaning the Board attributed to it. As the Board determined, and as we explain, under the regulation, in order to be "relevant," a record must speak to a matter in issue, in other words, a matter in dispute. We therefore once again affirm the decision of the Veterans Court that affirmed the decision of the Board denying Mr. Kisor entitlement under § 3.156(c)(1) to an effective date earlier than June 5, 2006, for his PTSD.

BACKGROUND

I.

The pertinent facts are as follows: Mr. Kisor served on active duty in the Marine Corps from 1962 to 1966. Veterans Court Decision , 2016 WL 337517, at *1. In December of 1982, he filed an initial claim for disability compensation benefits for PTSD with the VA RO in Portland, Oregon. Id. Subsequently, in connection with the claim, the RO 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

." 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. The examiner also noted that Mr. Kisor recounted that he had participated in Operation Harvest Moon; 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." Id. at 21. The examiner diagnosed Mr. Kisor with intermittent explosive disorder

and atypical personality disorder. Id. Such conditions cannot be a basis for service connection. See 38 C.F.R. § 4.127. Given the lack of a 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. Veterans Court Decision , 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, as well as a copy of the February 1983 letter from the Portland Vet Center. See J.A. 17, 100–11. The evidence also included service personnel records that had not been before the RO in 1983. These records included a copy of Mr. Kisor's Department of Defense Form 214 (subsequently corrected in 2007 to note, inter alia , a Combat Action Ribbon); and a Combat History, Expeditions, and Awards Record documenting his participation in Operation Harvest Moon. See J.A. 27–29. The RO also located an additional record it did not consider in 1983: a daily log from Mr. Kisor's unit, the 2nd Battalion, 7th Marines. J.A. 30–31. In June of 2007, the RO made a Formal Finding of Information Required to Document the Claimed Stressor. This was based on Mr. Kisor's statements; on his service medical records (which verified his service in Vietnam with the 2nd Battalion, 7th Marines); and on the daily log from his battalion, which detailed the combat events Mr. Kisor had previously described in connection with his claim. J.A. 30–31. In September of 2007, a VA examiner diagnosed Mr. Kisor with PTSD. J.A. 115.

In due course, the RO issued a rating decision 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. Veterans Court Decision , 2016 WL 337517, at *1. According to the 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...