Kisor v. Shulkin, 2017 U.S. App. LEXIS 17259

James Kisor, a Vietnam veteran, initially filed for PTSD service-connection in Dec 1982; the RO denied the claim in May 1983 because the psychiatric examiner did not diagnose PTSD.
Kisor failed to perfect an appeal of the 1983 denial, making that decision final.
Kisor reopened his claim on June 5, 2006, and later submitted service records (personnel records, unit daily log, DoD Form 214) and new medical evidence; VA examiners in 2007 diagnosed PTSD.
The RO granted service connection in 2007 effective June 5, 2006; Kisor sought an earlier effective date back to Dec 1982.
The Board considered 38 C.F.R. § 3.156(c) (reconsideration when relevant service department records are associated after a decision) and concluded the 2006-submitted service records were not “relevant” to the 1983 denial because they were cumulative or did not address the basis of the denial (lack of PTSD diagnosis).
The Veterans Court affirmed; Kisor appealed to the Federal Circuit challenging the Board/Veterans Court interpretation of “relevant” under § 3.156(c)(1).

Issue	Plaintiff's Argument (Kisor)	Defendant's Argument (VA)	Held
Whether § 3.156(c)(1) requires VA to reconsider when newly-associated service records have any probative tendency (i.e., relevance broadly defined)	“Relevant” means any evidence that makes a consequential fact more or less probable (Fed. R. Evid.-style); Kisor's personnel records showing combat exposure are relevant to PTSD claim and should trigger § 3.156(c) reconsideration back to Dec 1982	Relevance must be assessed in context; records that would not have affected the prior outcome (i.e., are cumulative or do not address the defect that produced denial) are not “relevant” for § 3.156(c)(1)	Court held § 3.156(c)(1) is ambiguous but VA/Board interpretation is reasonable: records that are cumulative or do not remedy the basis for the prior denial are not “relevant” and do not trigger § 3.156(c) reconsideration

Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014) (interpreting § 3.156(c) and explaining it places the veteran in position had VA considered service records earlier)
Gose v. U.S. Postal Serv., 451 F.3d 831 (Fed. Cir. 2006) (agency interpretation of its own regulation entitled to deference if not plainly erroneous)
Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) (Auer/agency-deference principles governing agency interpretation of its regulations)
Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014) (VA requires a medical diagnosis of PTSD to establish service connection)
Sneed v. McDonald, 819 F.3d 1347 (Fed. Cir. 2016) (jurisdictional scope under 38 U.S.C. § 7292)
Viraj Group v. United States, 476 F.3d 1349 (Fed. Cir. 2007) (competing dictionary definitions can show statutory/regulatory ambiguity)