James L. Kisor v. Denis R. McDonough, Secretary of Veterans Affairs

In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), this Court vacated the Federal Circuit’s holding that the word “relevant” in a veteran’s-benefit regulation was ambiguous. It remanded for the Federal Circuit to scrutinize the regulatory text more closely—“bring[ing] all its interpretive tools to bear”—before deferring to the government’s interpretation. Id. at 2423. On remand, the Federal Circuit again ruled against petitioner—but this time on the grounds that the government’s view of the word “relevant” was unambiguously correct. The court thus reversed its reasoning, but stood by its earlier conclusion that petitioner must be denied decades of disability benefits for the post-traumatic stress disorder he undisputedly suffers due to his combat service in Vietnam. Dissenting from the denial of rehearing en banc, Judge O’Malley (writing for four members of the Federal Circuit) explained that the panel’s “error” misconstrues “an important and oft-resorted to remedial regulation.” App., infra, 102a. And it “effectively nullif[ies] the pro-veteran canon of construction.” Ibid. In all, the dissenting judges expressed “hope” that this Court “will be willing to grant certiorari once more, and that [petitioner] will finally win.” Ibid. The question presented is: Whether the term “relevant official service department records” in 38 C.F.R. § 3.156(c)(1)’s “reconsideration” provision encompasses all records that “go to a benefits criterion,” or is instead restricted to only those records that “relate to the basis of the VA’s initial denial of benefits.” Kisor, 139 S. Ct. at 2423.