Case: 16-1929   Document: 71     Page: 1   Filed: 08/12/2020




   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 Di-
 vision, 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, Of-
 fice of General Counsel, United States Department of Vet-
 erans Affairs, Washington, DC.
                   ______________________
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 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) (“Ki-
 sor 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 ser-
 vice 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.
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 KISOR   v. WILKIE                                           3



 Kisor was in combat in “Operation Harvest Moon,” a mili-
 tary 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 Har-
 vest 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,” be-
 cause they bore on a matter relating to entitlement to ser-
 vice 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 re-
 quest 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 (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, 139 S. Ct. 2400 (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 in-
 terpretation 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
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 4                                             KISOR   v. WILKIE



 and foremost, a court should not afford Auer deference un-
 less 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 mean-
 ing.” 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 “gen-
 uinely ambiguous.” Id. at 2415. Accordingly, Auer defer-
 ence 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, 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 af-
 firmed the decision of the Board denying Mr. Kisor entitle-
 ment 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. Veter-
 ans 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 re-
 ceived a February 1983 letter from David E. Collier, a coun-
 selor 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 to-
 wards depression, suicidal thoughts, and social with-
 draw[a]l. This symptomatic pattern has been associated
 with the diagnosis of Post-Traumatic Stress Disorder.” Id.
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 KISOR   v. WILKIE                                           5



     In March of 1983, the RO obtained a psychiatric exam-
 ination 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 opera-
 tion when his company came under attack; that he re-
 ported 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. Ra-
 ther, 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 cur-
 rent 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 reo-
 pen his previously denied claim for service connection for
 PTSD. J.A. 25. While his request was pending, he pre-
 sented 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 evi-
 dence 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 (subse-
 quently corrected in 2007 to note, inter alia, a Combat Ac-
 tion 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
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 6                                             KISOR   v. WILKIE



 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 reopen-
 ing Mr. Kisor’s previously denied claim. The decision
 granted Mr. Kisor service connection for PTSD and as-
 signed a 50 percent disability rating, effective June 5, 2006.
 Veterans Court Decision, 2016 WL 337517, at *1. Accord-
 ing to the decision, the rating was based upon evidence that
 included the July 2007 psychiatric evaluation report diag-
 nosing 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 exami-
 nation showed that Mr. Kisor was diagnosed with PTSD
 due to experiences that occurred in Vietnam and because
 the record showed that he was “a combat veteran (Combat
 Action Ribbon recipient).” J.A. 33.
      In November of 2007, Mr. Kisor filed a Notice of Disa-
 greement. In it, he challenged both the 50 percent disabil-
 ity rating and the effective date assigned by the RO.
 Veterans Court Decision, 2016 WL 337517, at *1. Subse-
 quently, in March of 2009, the RO issued a decision in-
 creasing Mr. Kisor’s schedular rating to 70 percent. In
 addition, the RO granted Mr. Kisor an extraschedular en-
 titlement to individual unemployability, effective June 5,
 2006. J.A. 41–45. In January of 2010, the RO issued a
 Statement of the Case denying entitlement to an earlier ef-
 fective date for the grant of service connection for PTSD.
 See J.A. 53–65.
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 KISOR   v. WILKIE                                            7



                               III.
     Mr. Kisor appealed to the Board. Although not raised
 by Mr. Kisor, the Board considered whether the records Mr.
 Kisor submitted in connection with his June 5, 2006 re-
 quest to reopen and the additional record located by the RO
 warranted reconsideration of his claim under 38 C.F.R.
 § 3.156(c)(1). If it did, then Mr. Kisor would be eligible for
 an effective date for his disability benefits of December of
 1982, “the date VA received the previously decided claim.’’
 38 C.F.R. § 3.156(c)(3).
      After reviewing the evidence, the Board denied Mr. Ki-
 sor entitlement to an effective date earlier than June 5,
 2006. J.A. 91. The Board found that the VA did receive
 service department records documenting Mr. Kisor’s par-
 ticipation in Operation Harvest Moon after the May 1983
 rating decision. J.A. 89–90. As noted above, the Board con-
 cluded, though, that the records were not ‘‘relevant’’ for
 purposes of § 3.156(c)(1). J.A. 90. The Board explained
 that the 1983 rating decision denied service connection be-
 cause there was no diagnosis of PTSD, and because service
 connection can be granted only if there is a current disabil-
 ity. Id. (citing Brammer v. Derwinski, 3 Vet. App. 223
 (1992)). The Board stated that ‘‘relevant evidence, whether
 service department records or otherwise, received after the
 rating decision would suggest or better yet establish that
 the Veteran has PTSD as a current disability.’’ Id. The
 Board noted that Mr. Kisor’s ‘‘service personnel records
 and the daily [Battalion] log skip this antecedent to ad-
 dress the next service connection requirement of a trau-
 matic event during service.’’ Id. Finally, the Board
 concluded with the observation that the records at issue
 were not ‘‘outcome determinative’’ and ‘‘not relevant to the
 decision in May 1983 because the basis of the denial was
 that a diagnosis of PTSD was not warranted, not a dispute
 as to whether or not the Veteran engaged in combat with
 the enemy during service.’’ J.A. 90–91.
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 8                                            KISOR   v. WILKIE



                         DISCUSSION
                              I.
     As noted, this case is before us on remand from the Su-
 preme Court. On remand, we asked the parties to provide
 us with their views as to how we should proceed in view of
 the Court’s decision in Kisor II. In response, both Mr. Kisor
 and the government take the position that the term “rele-
 vant,” as it appears in 38 C.F.R. § 3.156(c), is not “genu-
 inely ambiguous” and that therefore Auer deference is not
 appropriate. See Appellant’s Suppl. Br. 4 (“In this case, the
 term ‘relevant’ as used by the Secretary in 38 C.F.R.
 § 3.156(c) is not ‘genuinely ambiguous.’”); Appellee’s Suppl.
 Br. 4 (“A thorough examination of the text, purpose, struc-
 ture, and history of 38 C.F.R. § 3.156(c) demonstrates that
 our reading of ‘relevant’ in that subsection is the only rea-
 sonable reading of the regulation.”).
       Mr. Kisor’s view is that the only reasonable reading of
 the regulation is that a service department record is “rele-
 vant” if it has “any tendency to make the existence of any
 fact that is of consequence to the determination of the ac-
 tion more probable or less probable than it would be with-
 out the evidence.” Appellant’s Suppl. Br. 9–10 (quoting
 Counts v. Brown, 6 Vet. App. 473, 476 (1994)). In other
 words, Mr. Kisor reasons that a service record is “relevant”
 if it constitutes evidence probative of any fact necessary to
 substantiate a veteran’s claim, even if the matter to which
 the record speaks is not in dispute. The government’s view
 is that the only reasonable reading of the term “relevant”
 in § 3.156(c) is that, in order to be relevant, a record must
 “address a dispositive issue and therefore . . . affect the
 outcome of the proceeding.” Appellee’s Suppl. Br. 14. The
 government reasons that, in order for a record to affect the
 outcome of the proceeding it “must speak to the basis for
 the VA’s prior decision.” Id. at 16. That was not the case
 here because the basis for the VA’s prior decision was the
 absence of a diagnosis of PTSD, not the absence of an in-
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 KISOR   v. WILKIE                                           9



 service stressor (participation in combat). Thus, while the
 parties both take the position that “relevant,” as it appears
 in the regulation, is not genuinely ambiguous, they advo-
 cate different meanings for the term.
      As explained below, we too conclude that the term “rel-
 evant” in § 3.156(c) is not genuinely ambiguous. At the
 same time, we agree with the government that, in the con-
 text of the regulation, the term has only one reasonable
 meaning. To be relevant, a record must address a disposi-
 tive issue and therefore affect the outcome of the case. As
 the Board determined, the record must speak to a matter
 in issue, in other words, a matter in dispute. In this case,
 in 1983 the VA denied Mr. Kisor’s claim for service connec-
 tion for PTSD because he had not been diagnosed with
 PTSD, not because of the absence of an in-service stressor.
 Indeed, in this case, the presence of an in-service stressor
 has never been disputed. As the Supreme Court pointed
 out, “[t]he report of the agency’s evaluating psychiatrist
 noted [Mr.] Kisor’s involvement in . . . battle” during Oper-
 ation Harvest Moon. Kisor II, 139 S. Ct. at 2409. For this
 reason, we again affirm the decision of the Veterans Court
 that affirmed the decision of the Board denying Mr. Kisor
 an effective date earlier than June 5, 2006, for service con-
 nection for his PTSD.
                               II.
     Establishing service connection for a PTSD claim re-
 quires (1) a medical diagnosis of PTSD; (2) “a link, estab-
 lished by medical evidence, between [the] current
 symptoms and an in-service stressor”; and (3) “credible
 supporting evidence that the claimed in-service stressor oc-
 curred.” AZ v. Shinseki, 731 F.3d 1303, 1310 (Fed. Cir.
 2013) (quoting 38 C.F.R. § 3.304(f)).
     A veteran can seek to revise a Board denial of a claim
 for disability benefits through different procedures. First,
 Board decisions are subject to review to determine whether
 a clear and unmistakable error exists under 38 U.S.C.
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 10                                           KISOR   v. WILKIE



 §§ 7111, 5109A, and 38 C.F.R. § 20.1400. Second, before
 amendments promulgated in 2019, a claimant could reopen
 a claim by submitting “new and material evidence” under
 former 38 U.S.C. § 5108 and 38 C.F.R. § 3.156. See Garcia
 v. Wilkie, 908 F.3d 728, 732–33 (Fed. Cir. 2018) (citing
 Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en
 banc)). As noted, in 2006, Mr. Kisor sought to reopen his
 claim for PTSD. Benefits awarded pursuant to a reopened
 claim under the former statutory and regulatory frame-
 work were granted an effective date no earlier than the
 date of the request for reopening. 38 U.S.C. § 5110 (2012),
 38 C.F.R. § 3.400(q)–(r) (2006); see also Sears v. Principi,
 349 F.3d 1326, 1331 (Fed. Cir. 2003). 1




      1   Under the Veterans Appeals Improvement and
 Modernization Act of 2017, Pub. L. 115-55 (“Modernization
 Act”), veterans may now file “supplemental claims” based
 on “new and relevant” evidence. 38 U.S.C. § 5108 (2019);
 38 C.F.R. §§ 3.156(d), 3.2501 (2019). Section 3.2501 defines
 “relevant evidence” as “information that tends to prove or
 disprove a matter at issue in a claim [and] includes evi-
 dence that raises a theory of entitlement that was not pre-
 viously addressed.” 38 C.F.R. § 3.2501. The comments
 accompanying the proposed rule explained that the defini-
 tion of “relevant evidence” came from 38 U.S.C. § 101(35).
 VA Claims and Appeals Modernization, 83 Fed. Reg.
 39,818, 39,822 (proposed Aug. 10, 2018). The comments
 accompanying the final rule explain that the “new and rel-
 evant” standard for supplemental claims is “a lesser stand-
 ard and reduces the claimant’s burden” as compared to the
 prior “new and material” standard. VA Claims and Ap-
 peals Modernization, 84 Fed. Reg. 138, 144 (Jan. 18, 2019)
 (codified at 38 C.F.R. pts. 3, 8, 14, 19, 20, and 21). The
 earliest effective date for an award of disability benefits
 pursuant to a supplemental claim is the date the
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 KISOR   v. WILKIE                                           11



      For claims based upon “new and material evidence”
 filed before 2019, such as Mr. Kisor’s, 38 C.F.R. § 3.156(a)
 defined “new evidence” as ‘‘existing evidence not previously
 submitted to agency decisionmakers.’’ ‘‘Material’’ evidence
 was defined under the same subsection as ‘‘existing evi-
 dence that, by itself or when considered with previous evi-
 dence of record, relates to an unestablished fact necessary
 to substantiate the claim.” The regulation goes on to ex-
 plain that “[n]ew and material evidence can be neither cu-
 mulative nor redundant of the evidence of record at the
 time of the last prior final denial of the claim sought to be
 reopened, and must raise a reasonable possibility of sub-
 stantiating the claim.” 38 C.F.R. § 3.156(a).
     Third, a veteran may seek to have the VA reconsider a
 previously-denied claim under 38 C.F.R. § 3.156(c)(1). 2
 Section 3.156(c)(1) reads today as it did in 2006 and in 2014
 when the Board considered Mr. Kisor’s case. As noted
 above, the regulation states that the 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). 3 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



 supplemental claim was filed. 38 U.S.C. § 5110 (2019); 38
 C.F.R. §§ 3.400, 3.2500(h)(2) (2019).
     2    In this case, Mr. Kisor did not explicitly seek recon-
 sideration, but the Board considered reconsideration under
 § 3.156(c) when it addressed his request for an earlier ef-
 fective date for service connection for PTSD. J.A. 88.
     3    Recently, in Jones v. Wilkie, we addressed a claim
 under § 3.156(c)(1). However, in that case, the government
 did not dispute that the newly associated records were “rel-
 evant” and that reconsideration was required. 964 F.3d
 1374, 1379 n.5 (Fed. Cir. 2020).
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 12                                            KISOR   v. WILKIE



 entitlement arose or the date VA received the previously
 decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3).
 “In other words, § 3.156(c) serves to place a veteran in the
 position he would have been had the VA considered the rel-
 evant service department record before the disposition of
 his earlier claim.” Blubaugh v. McDonald, 773 F.3d 1310,
 1313 (Fed. Cir. 2014).
      Unlike the “new” and “material” terms defined in
 § 3.156(a), § 3.156(c) does not provide a definition for the
 term “relevant.” However, the context of § 3.156(c) makes
 clear that, in order to be “relevant” for purposes of recon-
 sideration, additional records must speak to the basis for
 the VA’s prior decision. Specifically, the effective date for
 an award under § 3.156(c) is retroactive to the “date enti-
 tlement arose or the date VA received the previously de-
 cided claim” only if the award is “based all or in part on”
 the newly identified records. § 3.156(c)(3). Duplicative rec-
 ords and records directed to an undisputed fact would not
 speak to the basis for the VA’s prior decision; a claimant
 filing such records thus could not obtain an award “based
 all or in part on” the newly identified records. In this case,
 the records at issue did not speak to the basis for the VA’s
 prior decision: the absence of a diagnosis of PTSD.
     Moreover, in the context of veteran’s benefits, we have
 explained that “relevant” evidence is evidence that “must
 tend to prove or disprove a material fact.” AZ, 731 F.3d at
 1311; see also Black’s Law Dictionary (10th ed. 2014) (de-
 fining “relevant” as “[l]ogically connected and tending to
 prove or disprove a matter in issue”). Similarly, the VA’s
 duty to assist claimants under 38 U.S.C. § 5103A mandates
 that the VA make reasonable efforts to obtain “relevant”
 records, but this does not encompass the situation in which
 “no reasonable possibility exists that such assistance would
 aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2);
 see Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010)
 (“Relevant records for the purpose of [38 U.S.C.] § 5103A
 are those records that relate to the injury for which the
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 KISOR   v. WILKIE                                          13



 claimant is seeking benefits and have a reasonable possi-
 bility of helping to substantiate the veteran’s claim.”). Con-
 versely, evidence that “simply does not tend to prove a fact
 that is of consequence to the action[] . . . is not relevant.”
 AZ, 731 F.3d at 1311 (quoting 2 Jack B. Weinstein & Mar-
 garet A. Berger, Weinstein’s Federal Evidence § 401.07 (2d
 ed. 2012)). 4
     Mr. Kisor’s original claim was denied in 1983 because
 he had no diagnosis of PTSD, not because of any dispute as
 to whether he had suffered an in-service stressor. J.A. 23.
 The Rating Decision acknowledges consideration of the VA
 psychiatric examiner’s evaluation. Id. In the evaluation,
 the examiner detailed Mr. Kisor’s recounting of his partic-
 ipation in Operation Harvest Moon, noting “it . . . ap-
 pear[ed] that [Mr. Kisor] was involved in one major
 ambush which resulted in 13 deaths.” Id. at 19–20. The
 examiner concluded, however, that it was his “distinct im-
 pression that this man suffers from a personality disorder
 as opposed to PTSD.” Id. at 21. It was on this lack of a
 PTSD diagnosis that the Board relied when it concluded
 that PTSD was “not shown by evidence of record.” Id. at
 23.
     As noted, the additional service records at issue here
 are Mr. Kisor’s service personnel records, including his
 Form 214, corrected to add a Combat Action Ribbon; and
 his Combat History, Expeditions, and Awards Record not-
 ing his participation in Operation Harvest Moon. The ad-
 ditional service records also include the daily log of his


     4   This understanding of “relevant” is also consistent
 with the definition for that term in connection with “sup-
 plemental claims” under the Modernization Act noted
 above. 38 C.F.R. § 3.2501 (“Relevant evidence is infor-
 mation that tends to prove or disprove a matter at issue in
 a claim [and] includes evidence that raises a theory of en-
 titlement that was not previously addressed.”).
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 14                                            KISOR   v. WILKIE



 battalion in Vietnam that confirmed Mr. Kisor’s descrip-
 tion of the ambush during Operation Harvest Moon. Alt-
 hough they provide further support to Mr. Kisor’s prior
 statements that he participated in Operation Harvest
 Moon and indeed could provide “credible supporting evi-
 dence that the claimed in-service stressor occurred,” see
 AZ, 731 F.3d at 1310, these additional service records do
 not show that Mr. Kisor had a medical diagnosis of PTSD
 as of 1983, or that the agency otherwise erred in denying
 his claim in 1983.
      The Board’s decision that Mr. Kisor’s records were not
 “relevant” is also consistent with our holding in Blubaugh,
 773 F.3d at 1314. In Blubaugh, we held that § 3.156(c) did
 not apply when a newly discovered service record “did not
 remedy the defects” of a prior decision and contained facts
 that “were never in question.” Id. Indeed, we held that
 “[s]ection 3.156(c) only applies ‘when VA receives official
 service department records that were unavailable at the
 time that VA previously decided a claim for benefits and
 those records lead VA to award a benefit that was not
 granted in the previous decision.’” Id. (quoting New and
 Material Evidence, 70 Fed. Reg. at 35,388 (proposed June
 20, 2005)).
     We therefore conclude that the Board did not err in
 holding that the records cited by Mr. Kisor were not “rele-
 vant” because they did not pertain to the basis of the 1983
 denial, the lack of a diagnosis of PTSD. The records added
 nothing to the case 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.
                             III.
     As noted, Mr. Kisor argues that a service department
 record is “relevant” under 38 C.F.R. § 3.156(c) if it has any
 tendency to make the existence of any fact that is of conse-
 quence to the determination of the action more probable or
 less probable than it would be without the evidence. This
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 KISOR   v. WILKIE                                           15



 view, however, is squarely contrary to what we have just
 explained is the correct reading of the regulation. We
 therefore reject it.
     Mr. Kisor makes two additional arguments. First, he
 contends that his reading of the regulation is supported by
 the fact that § 3.156(c) is intended to be remedial in nature.
 According to Mr. Kisor, the regulation was promulgated “to
 address what occurs when VA fails to obtain all relevant
 service department records before adjudicating [a] claim in
 the first instance.” Appellant’s Suppl. Br. 11. Since the
 regulation is remedial, Mr. Kisor argues, the term “rele-
 vant” should be construed broadly in a manner consistent
 with the interpretation above that he urges. Id. at 13–15.
     We disagree. Although broad, the VA’s duty to assist
 is not without limits. Under 38 U.S.C. § 5103A(a)(2), “[t]he
 Secretary is not required to provide assistance to a claim-
 ant under this section if no reasonable possibility exists that
 such assistance would aid in substantiating the claim.”
 (Emphasis added). Thus, to the extent the VA’s duty to
 assist encompasses evidence necessary, but not sufficient,
 to substantiate a veteran’s claim, the duty does not extend
 to the situation where, like here, the evidence provides no
 reasonable possibility that the claim could be substanti-
 ated because the evidence does not establish a missing
 claim element.
     Finally, Mr. Kisor argues that we should resort to the
 “pro-veteran canon” of construction, see, e.g., Brown v.
 Gardner, 513 U.S. 115, 117–18 (1994), and thereby arrive
 at the reading of the term “relevant” in § 3.156(c) that he
 urges. Appellants’ Suppl. Br. 16–18. The canon is not
 available in this case, however, because it only applies in
 the situation where the statute or regulation at issue is am-
 biguous. Paralyzed Veterans of Am. v. Sec’y of Veterans Af-
 fairs, 345 F.3d 1334, 1340 (Fed. Cir. 2003) (noting that the
 pro-veteran canon “applies only to ambiguous statutes”
 and “cannot be invoked to override the clear meaning of a
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 16                                           KISOR   v. WILKIE



 particular provision”) (internal quotation marks and cita-
 tion omitted); Spicer v. Shinseki, 752 F.3d 1367, 1371 (Fed.
 Cir. 2014) (declining to apply the pro-veteran canon to a
 regulation when there was no ambiguity and no interpre-
 tive doubt). 5
     In this case, both Mr. Kisor and the government take
 the position that the term “relevant” in § 3.156(c) is not
 “genuinely ambiguous.” We agree with that position and
 hold today that the term has only “one reasonable mean-
 ing.” That is the meaning adopted by the Board when it




      5   See also Parrott v. Shulkin, 851 F.3d 1242, 1251
 (Fed. Cir. 2017) (declining to apply pro-veteran canon in
 part because there was no ambiguity in the statute); Fred-
 erick v. Shinseki, 684 F.3d 1263, 1269 (Fed. Cir. 2012)
 (“[T]he Secretary correctly posits that the rule of interpre-
 tative doubt favoring veterans in Brown v. Gardner, has no
 force if a statute properly interpreted leaves no ambiguity
 as to its meaning.”) (citation omitted); Heino v. Shinseki,
 683 F.3d 1372, 1379 n.8 (Fed. Cir. 2012) (declining to hold
 a statute unambiguous by resorting to [the pro-veteran
 canon of construction] that is “used to analyze ambiguous
 statutes”); Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir.
 2010) (declining to apply pro-veteran canon after conclud-
 ing statute was unambiguous by “applying other interpre-
 tive tools.”); Terry v. Principi, 340 F.3d 1378, 1383 (Fed.
 Cir. 2003) (declining to apply pro-veteran canon when the
 statute was not ambiguous); Boyer v. West, 210 F.3d 1351,
 1355 (Fed. Cir. 2000) (“[W]hen we find an ambiguity in a
 veterans’ benefit statute, interpretative doubt is to be re-
 solved in the veteran’s favor. At the same time, we have
 also recognized that a veteran cannot rely upon the gener-
 ous spirit that suffuses the law generally to override the
 clear meaning of a particular provision.”) (internal quota-
 tion marks and citations omitted).
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 KISOR   v. WILKIE                                           17



 denied Mr. Kisor an effective date earlier than June 5, 2006
 for service connection for his PTSD.
    We have considered Mr. Kisor’s other arguments and
 have found them to be without merit.
                           CONCLUSION
      For the foregoing reasons, we conclude the term “rele-
 vant” has only one reasonable meaning in the context of
 § 3.156(c)(1): the “relevant” service records must speak to a
 matter in issue, in other words, a matter in dispute. Ac-
 cordingly, we affirm the decision of the Veterans Court that
 affirmed the decision of the Board denying Mr. Kisor an
 effective date earlier than June 5, 2006 for service connec-
 tion for his PTSD.
                           AFFIRMED
                              Costs
     No costs.
Case: 16-1929   Document: 71      Page: 18   Filed: 08/12/2020




    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.
                 ______________________
 REYNA, Circuit Judge, dissenting.
    This appeal is on remand from the U.S. Supreme
 Court.
     Three years ago, this panel unanimously held that the
 plain text of 38 C.F.R. § 3.156(c) was ambiguous as to the
 scope of the word “relevant.” It was on that basis that we
 applied Auer deference to what we determined was a rea-
 sonable interpretation of the regulation by the Department
 of Veterans Affairs (“VA”). We did not at the time consider
 a countervailing tool used to resolve ambiguities in veter-
 ans’ benefits regulations, the pro-veteran canon. The Su-
 preme Court vacated our decision because it relied
 prematurely on Auer, and on remand, the VA waived Auer
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 2                                              KISOR   v. WILKIE



 altogether. 1 Now, the majority decides that the agency’s
 construction—of the same text we held was ambiguous—
 has become unambiguously correct. Slip Op. 15–17. On
 that basis, the majority again avoids application of the pro-
 veteran canon.
      I disagree with my colleagues’ new position that the
 “one reasonable meaning” of the word “relevant” in 38
 C.F.R. § 3.156(c) is the VA’s. Slip Op. 4, 9, 16. Nothing in
 the plain meaning or context of the provision requires “rel-
 evant” records to “speak to the basis for the VA’s prior de-
 cision,” to address facts expressly “in dispute,” or to “affect
 the outcome.” See Slip Op. 8, 9, 12, 14. Rather, the estab-
 lished constructions of the terms “relevant records” and
 “material evidence” in related veterans’ benefit provisions
 support the conclusion that records are “relevant” so long
 as they help to establish unestablished facts that are nec-
 essary for substantiating the veteran’s claim. The majority
 relies on flawed assumptions and inferences in adopting
 the VA’s construction and points to nothing that renders
 the more pro-veteran construction unreasonable.
     Fundamentally, when a veterans’ benefit provision is
 ambiguous on its face, the pro-veteran canon must be
 weighed alongside the other traditional tools in resolving
 interpretive doubt. Neither the Supreme Court’s decision


     1    Recording of Oral Argument at 16:10–16:22 (“The
 government is not contending that the agency’s interpreta-
 tion is entitled to deference.”); see also Transcript of Oral
 Argument at 64:6-20, Kisor v. Wilkie, 139 S. Ct. 2400
 (2019),           http://oralarguments.cafc.uscourts.gov/de-
 fault.aspx?fl=2016-1929_1142020.mp3 (conceding that
 Auer deference only applies “if the determination reflects
 the considered judgment of the agency as a whole” and that
 “we [the government] don’t think that any individual Board
 decision by the VA Board reflects the considered judgment
 of the agency as a whole”).
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  KISOR V. WILKIE                                              3



 in this case, nor this court’s precedent, supports the major-
 ity’s assumption that the canon is to be treated like Auer
 deference as solely a tiebreaker of last resort. Rather, the
 Court clarified that the “traditional tools of construction”
 must precede deference to the agency. As such a tool, the
 pro-veteran canon requires that we discern the remedial
 purpose of a veterans’ benefit provision in the context of the
 veterans’ benefit scheme as a whole and ensure that our
 construction effectuates, rather than frustrates, that pur-
 pose. By brushing aside the canon, the majority adopts a
 construction of § 3.156(c) that substantially narrows the
 scope of its remedial function. Thus, Mr. Kisor, a veteran
 who was denied twenty-three years of compensation for his
 service-connected disability after a disgracefully inade-
 quate VA review, is denied relief under a regulation specif-
 ically promulgated to benefit him and other veterans in his
 situation. The result will reverberate far beyond this case.
     I dissent.
                                I
     When James Kisor submitted his first claim for service-
 connected post-traumatic stress disorder (“PTSD”) in 1982,
 he had undergone over a year of counseling for his symp-
 toms at the Portland Vet Center. Yet a VA examiner diag-
 nosed him with personality disorders rather than PTSD,
 and based on that diagnosis, the VA denied his claim on a
 one-page form. J.A. 23.
     There is no dispute that the agency made no effort, be-
 fore or after receiving the examiner’s report, to determine
 whether Mr. Kisor suffered a traumatic stressor during his
 service in Vietnam. This was in spite of the fact that (1) a
 legal element of any PTSD claim is a verified in-service
 stressor, and (2) the first clinical criterion for a medical di-
 agnosis of PTSD (another legal element of a PTSD claim)
 is the experience of an objectively distressing traumatic
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 4                                            KISOR   v. WILKIE



 event. 2 There was no documentation whatsoever of combat
 experience in Mr. Kisor’s file because the VA had never
 bothered to request his personnel records from the service
 department. The rating decision made no mention of his
 combat status. J.A. 23.
     It bears emphasizing a few neglected details of the ex-
 amination that led to this rating decision against Mr. Ki-
 sor. Although the examiner’s report recounted Mr. Kisor’s
 descriptions of his combat experience, it did so with palpa-
 ble skepticism 3 and noted that Mr. Kisor had reported “no



     2    See J.A. 107 (citing the diagnostic criteria for
 PTSD); AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND
 STATISTICAL MANUAL OF MENTAL DISORDERS, 309.81 (3d ed.
 1980) (identifying the first diagnostic criterion for PTSD as
 “[e]xistence of a recognizable stressor that would evoke sig-
 nificant symptoms of distress in almost everyone”); see
 also, e.g., O’Donnell v. Shinseki, 2012 WL 1660827, at *1
 (Vet. App. 2012) (“A VA medical examination . . . concluded
 that he ‘does not meet DSM–IV criteria for the diagnosis of
 PTSD, in terms of a specific, identified stressor that meets
 Criterion A, which is required for the diagnosis to be
 made.’”).
      3   See, e.g., J.A. 19 (“The veteran seemed to be imply-
 ing that the very exposure to potential combat and the im-
 plied danger did affect a change upon his adaptation.”)
 (emphasis added); id. (“When the veteran was asked to de-
 scribe combat situations he seemed very defensive and
 wanted to make certain that I understood that he was al-
 ways in situations of combat danger.”); id. (“[I]t would ap-
 pear that he was involved in one major ambush which
 resulted in 13 deaths in a large company. The veteran does
 not remember how long this ambush lasted. He described
 the ambush in the context of the stupidity of his command-
 ing officer’s orders and judgment.”); J.A. 20 (“Whenever I
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  KISOR V. WILKIE                                            5



 battle problems or traumatic experiences” to his social
 worker. J.A. 18–20. At the time, Mr. Kisor’s treating coun-
 selor had considered his symptoms to be consistent with
 PTSD. J.A. 21. The examiner noted he was “not im-
 pressed” with that diagnosis but provided no explanation
 of the basis for his own opinion. J.A. 21. This was because
 he had “lost” the “portion of the original dictation” setting
 forth a “specific review of symptoms related to the PTSD
 criteria” and could not “recall the specifics.” J.A. 21–22.
 All he could offer was his “impression.” Id. Despite all this,
 the rating board accepted the examiner’s diagnosis and
 went no further with Mr. Kisor’s claim.
      For the next twenty-three years, Mr. Kisor received no
 disability compensation from the VA, although the symp-
 toms of his condition continued to keep him from holding
 down a job. In 2006, Mr. Kisor went to check his VA claims
 file, and discovered that there were no records of his com-
 bat history. He wrote to the VA, attaching service records
 documenting his combat history and Combat Action Rib-
 bon, and demanded that the agency look again at his claim.
 J.A. 28–29. The VA construed his first letter as a request
 to reopen his claim based on new and material evidence,
 and although nothing else about his claim had changed, the
 VA this time proceeded to investigate his alleged in-service
 stressor, requesting an entry from his battalion’s daily log
 that documented the following attack:
     battalion forward and rear elements taken under
     heavy fire by mortar, recoilless rifle, and automatic


 would ask direct questions concerning the actual amount
 of combat activity, this subject would get lost as he would
 again launch into another detailed anecdotal monologue.”);
 J.A. 21 (“[H]is Vietnam combat situations were couched in
 the framework of his basic premise: that most people who
 have attempted to boss him around had been inferior to
 him either intellectually or morally.”).
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 6                                            KISOR   v. WILKIE



     weapons. . . . VC [Viet Cong combatants] were well
     camouflaged and dug into concealed positions. All
     VC contacted were well armed and equipped . . . .
     VC KIA [killed in action] 105.
 J.A. 30–31. Based on the information in the log—infor-
 mation that all along had been in the government’s posses-
 sion—the VA formally verified Mr. Kisor’s stressor. Id.
     Mr. Kisor then obtained and submitted an evaluation
 from a third-party psychiatrist, who concluded that Mr. Ki-
 sor met each of the diagnostic criteria for PTSD and had
 been suffering from the effects of his condition for the last
 27 years. J.A. 109. In particular, the psychiatrist opined
 that the VA examiner in 1983 had likely “misunderstood
 the impact of the claimant’s war trauma upon him,” as
 symptoms of PTSD were apparent from Mr. Kisor’s medical
 records at that time. Id. A new VA psychiatric examina-
 tion concurred with this diagnosis. 4 J.A. 115–116. This
 time, the new examiner accepted the presence of “combat
 stressors” based on records of Mr. Kisor’s combat action rib-
 bon, J.A. 112, and proceeded to describe his combat ac-
 counts and symptoms fully and sympathetically. The




     4   There are similar instances in which a Vietnam
 veteran, whose PTSD claim was initially denied based on
 absence of a PTSD diagnosis, is later diagnosed with PTSD
 in a new examination, and awarded benefits after the VA
 receives new evidence of an in-service stressor. See, e.g.,
 No. 13-00 404A, Bd. Vet. App. 1412187, 2014 WL 1897120,
 at *4 (BVA Mar. 24, 2014); No. 11-00 848, Bd. Vet. App.
 1408416, 2014 WL 1417762, at *1 (BVA Feb. 27, 2014); No.
 10-48-888, Bd. Vet. App. 1317296, 2013 WL 3770036, at *5
 (BVA May 28, 2013). Notably, the Board found § 3.156(c)
 to be applicable in each of these cases without questioning
 the relevance of the newly identified stressor evidence.
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  KISOR V. WILKIE                                           7



 examiner also received and reviewed the other records now
 in Mr. Kisor’s claims file. Id.
     Based on Mr. Kisor’s new diagnosis of PTSD and his
 service records, the VA found that he had established the
 necessary elements of a service-connected PTSD claim and
 awarded compensation for the claim. J.A. 32–33. The
 agency, however, refused to treat its new review as a “re-
 consideration” under § 3.156(c), which would entitle him to
 an effective date retroactive to his 1982 claim. The Board
 of Veterans’ Appeals (“Board”) recognized that reconsider-
 ation is only triggered when the VA receives newly identi-
 fied “relevant official service records.” The Board reasoned
 that the newly received combat records in Mr. Kisor’s
 case—i.e., his combat expeditions form, his Combat Action
 Ribbon award, and his battalion’s daily log—were not “rel-
 evant” because they did not address the “basis” of the VA’s
 prior decision and did not “manifestly change” its outcome.
 J.A. 90–91.
                               II
     In all cases, the VA has a statutory duty to assist the
 veteran by fully and sympathetically developing the vet-
 eran’s claim to its optimum before deciding the claim on the
 merits. McGee v. Peake, 511 F.3d 1352, 1357 (2008). The
 VA bears this obligation so long as there is any “reasonable
 possibility” that such assistance would “aid in substantiat-
 ing the claim.” 38 U.S.C. § 5103A; Golz v. Shinseki, 590
 F.3d 1317, 1323 (Fed. Cir. 2010). This includes making
 reasonable efforts to obtain evidence necessary to substan-
 tiate the veteran’s claim. 38 U.S.C. § 5103A. In particular,
 the VA must obtain “relevant records pertaining to the
 claimant’s active [military] service that are held or main-
 tained by a governmental entity.” 38 U.S.C. § 5103A(c)(1).
     What happens when the VA fails to fulfill this duty? If,
 decades after a claim is denied, the veteran uncovers ser-
 vice records that prove a necessary element of his claim
 and should have been part of his file, will his claim be
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 8                                             KISOR   v. WILKIE



 reconsidered, offering him a chance to prove entitlement
 dating back to his first claim? Or must he first bear the
 burden of showing that the missing records might have
 changed the VA’s original decision? The answer turns on
 the construction of the word “relevant” in the VA’s regula-
 tion, 38 C.F.R. § 3.156(c).
     Section 3.156(c) provides for reconsideration of claims
 previously decided without the benefit of all relevant ser-
 vice records. Subsection (c)(1) requires the VA to recon-
 sider a claim if it receives “relevant service department
 records” that had not been considered when it first decided
 the claim:
     [A]t any time after VA issues a decision on a claim,
     if VA receives or associates with the claims file rel-
     evant official service department records that ex-
     isted and had not been associated with the claims
     file when the VA first decided the claim, VA will
     reconsider the claim.
 § 3.156(c)(1). Reconsideration includes further VA assis-
 tance in developing any additional evidence needed to sub-
 stantiate the claim. 38 U.S.C. § 5103A(a)(1); Vigil v. Peake,
 22 Vet. App. 63, 67 (2008). If, after reconsideration of the
 claim, “an award [is] made based all or in part” on these
 records, then the award is effective as far back as the effec-
 tive date of the previously decided claim, depending on
 when entitlement arose, as determined through a retroac-
 tive assessment of disability. § 3.156(c)(3), (c)(4).
     The plain text of § 3.156(c)(1) does not specify whether
 the “relevant” records that trigger reconsideration must
 “cast[] doubt on the agency’s prior rating decision” or only
 “relat[e] to the veteran’s claim more broadly.” Kisor v.
 Shulkin, 869 F.3d 1360, 1367 (Fed. Cir. 2017) (“Kisor I”).
 However, the history and text of § 3.156(c) make clear that
 reconsideration serves the dual remedial purpose of (1)
 providing a fair claim review based on a fully developed
 record to veterans who had been denied such a review
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  KISOR V. WILKIE                                             9



 before and (2) compensating such veterans for any benefits
 to which they can now prove they should have been enti-
 tled. We have noted that “§ 3.156(c) serves to place a vet-
 eran in the position he would have been had the VA
 considered the relevant service department record before
 the disposition of his earlier claim.” Blubaugh v. McDon-
 ald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). That includes
 affording him both his procedural right to a complete re-
 view and his substantive right to full compensation.
     In light of the ambiguity in § 3.156(c) and the regula-
 tion’s remedial purpose, consistent with the Supreme
 Court’s instructions on remand, I look to the provision’s
 context and history for a construction of “relevant” that
 best effectuates the purpose of reconsideration. I turn first
 to our construction of “relevant records” in the context of
 the VA’s duty to assist veterans. I then look to the histori-
 cal scope of the “new and material evidence” standard for
 the reopening of claims, which served as the original stand-
 ard for reconsideration under § 3.156(c). Both sources
 point to the conclusion that “relevant . . . records” need only
 address a necessary and unestablished element of the
 claim as a whole, not the specific disputed issue that served
 as the basis for the VA’s prior decision.
         A. “Relevant Records” and the Duty to Assist
     As discussed, 38 U.S.C. § 5103A requires the VA to as-
 sist a claimant in obtaining “evidence necessary to sub-
 stantiate the claimant’s claim,” including obtaining
 “relevant records” of the claimant’s military service, so long
 as there exists any “reasonable possibility that such assis-
 tance would aid in substantiating the claim.” 38 U.S.C.
 §§ 5103A(a)(1)–(a)(2), 5103A(c)(1)(A) (emphasis added).
 There is no dispute that “relevant” records for purposes of
 reconsideration should be construed consistently with the
 meaning of “relevant records” under § 5103A.
    In interpreting § 5103A, this court has defined “rele-
 vant records” as “those records that relate to the injury for
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 10                                           KISOR   v. WILKIE



 which the claimant is seeking benefits and have a reason-
 able possibility of helping to substantiate the veteran’s
 claim.” Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir.
 2010). When determining the scope of “relevant records”
 for a given claim, we look to the elements necessary to sub-
 stantiate it. See id. at 1322. In particular, when a veteran
 seeks compensation for service-connected PTSD, we have
 held that the “records relevant to his claim are those relat-
 ing to a medical diagnosis of PTSD, evidence corroborating
 claimed in-service stressors, or medical evidence establish-
 ing a link between any in-service stressor and a PTSD di-
 agnosis.” Id.
     We have also made clear that the VA’s obligation to ob-
 tain relevant records does not depend on whether the rec-
 ords would likely be “dispositive” of the claim. McGee, 511
 F.3d at 1358 (“The statute [§ 5103A] simply does not excuse
 the VA’s obligation to fully develop the facts of [the vet-
 eran’s] claim based on speculation as to the dispositive na-
 ture of relevant records.”). We have held that relevant
 records need not “independently prove” the veteran’s claim.
 Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019).
     The scope of the VA’s duty to assist thus supports the
 conclusion that “relevant” records are those that help to es-
 tablish a necessary element of a veteran’s claim, regardless
 of whether the evidence would be dispositive of the out-
 come. By this standard, Mr. Kisor’s combat records are rel-
 evant at least because they corroborate his in-service
 stressor, a necessary element of a PTSD claim that had not
 been established when the VA first decided his claim. 38
 C.F.R. § 3.304(f); AZ v. Shinseki, 731 F.3d 1303, 1310 (Fed.
 Cir. 2013).
                B. “New and Material Evidence”
     Up until 2019, all of 38 C.F.R. § 3.156 fell under the
 heading “New and Material Evidence.” As originally en-
 acted, the provision provided for (1) reopening of previously
 decided claims based on “new and material evidence” and
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  KISOR V. WILKIE                                          11



 (2) reconsider[ation] of previously decided claims based on
 new and material evidence that consisted of official records
 from the service department. See § 3.156, New and Mate-
 rial Evidence, 27 Fed. Reg. 11887 (Dec. 1, 1962) (emphasis
 added). The distinction between the two procedures was
 that reconsideration provided the veteran an opportunity
 to prove and receive retroactive entitlement to benefits,
 whereas reopening only entitled veterans to the effective
 date of the request to reopen.
      Effective 2006, the VA amended the language in
 § 3.156(c) to delete the reference to “new and material evi-
 dence,” and replace it with the current phrase “relevant of-
 ficial service records.” In proposing the change, the VA
 stated that the change was intended to eliminate any con-
 fusion as to whether awards made upon reconsideration
 would be subject to the same effective date as awards made
 upon reopening. New and Material Evidence, 70 Fed. Reg.
 35388, 35388-89 (Jun. 20, 2005). The VA was thus clear
 that the new “relevant . . . records” language was not in-
 tended to impose a higher threshold for triggering recon-
 sideration than before.       It follows that records are
 “relevant” under § 3.156(c)(1) if they would satisfy the def-
 inition of “material evidence” for purposes of reopening a
 claim. 5
     This is critical because the standard for “material evi-
 dence” has always been forward-looking toward the claim
 to be substantiated, not backward-looking toward the prior
 VA decision. Since 2001, the VA has defined “material” ev-
 idence as “evidence that, by itself or when considered with


     5   This is consistent with the VA’s definition for “new
 and relevant evidence” for purposes of re-adjudicating
 “supplemental claims” under the recently enacted
 § 3.156(d). The definition provides that “[t]he new and rel-
 evant evidence” standard is no higher than the “new and
 material evidence” standard under § 3.156(a).
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 12                                           KISOR   v. WILKIE



 previous evidence of record, relates to an unestablished
 fact necessary to substantiate the claim.” § 3.156(a) (em-
 phasis added); see also § 3.156, Duty to Assist, 66 Fed. Reg.
 45620, 45630 (Aug. 29, 2001). Historically, when the VA
 promulgated its first binding definition of materiality in
 1990, it stated that “it has always been VA’s position that
 evidence may be new and material even though it does not
 warrant revision of a previous decision.” New and Material
 Evidence, 55 Fed. Reg. 52274 (Dec. 21, 1990) (emphasis
 added).
     Accordingly, in Hodge v. West, we rejected the Veterans
 Court’s requirement that a claimant seeking reopening es-
 tablish “a reasonable possibility that the new evidence,
 when viewed in the context of all the evidence, both new
 and old, would change the outcome.” 155 F.3d 1356, 1363
 (Fed. Cir. 1998) (citing Colvin v. Derwinski, 1 Vet App. 171,
 174 (1991)) (emphasis added). We concluded that an out-
 come determinacy requirement for reopening, even under
 an attenuated “reasonable possibility” threshold, was “in-
 consistent with the general character of the underlying
 statutory scheme for awarding veterans’ benefits.” Id. at
 1362. We reasoned that the availability of review based on
 new evidence reflects “the importance of a complete record
 for evaluation of a veteran’s claim” that considers “all po-
 tentially relevant evidence.” Id. at 1363. We recognized
 that “so much of the evidence regarding the veterans’
 claims for service connection and compensation is circum-
 stantial at best,” and in this context, new evidence may
 “contribute to a more complete picture of the circumstances
 surrounding the origin of a veteran’s injury or disability,”
 and warrant another look at the claim, even if it does not
 demonstrably change the right outcome. Id. Moreover,
 both the reopening and reconsideration of a claim entitles
 the veteran to receive additional assistance from the VA,
 such as new medical examinations and requests for addi-
 tional records. See Paralyzed Veterans of Am. v. Sec’y of
 Veterans Affs., 345 F.3d 1334, 1339, 1343 (Fed. Cir. 2003);
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  KISOR V. WILKIE                                          13



 Vigil v. Peake, 22 Vet. App. 63, 67 (2008). The provisions
 thus contemplate that a claim that is not fully substanti-
 ated based on the new evidence alone may be substantiated
 after further factual development.
     The VA adhered to these principles when it adopted the
 current definition of materiality in 2001. In particular, the
 VA withdrew as “too restrictive” a proposal that would
 have defined “material evidence” as “evidence that relates
 specifically to the reason why the claim was last denied.”
 Duty to Assist, 66 Fed. Reg. at 45629 (final rule) (emphasis
 added); cf. Duty to Assist, 66 Fed. Reg. 17834, 17838–89
 (Apr. 4, 2001) (proposed rule). In its place, the VA promul-
 gated the current definition of materiality that focuses on
 the “unestablished fact[s] necessary to substantiate the
 claim.” Duty to Assist, 66 Fed. Reg. at 45629 (emphasis
 added). 6
     If the VA now intends to condition reconsideration on
 records that relate to the basis of the prior decision or
 change its outcome, it must do so through notice and com-
 ment. The agency cannot urge us to read those require-
 ments into the word “relevant” when they have repeatedly
 refused to incorporate them into the criteria for reopening
 and reconsideration in promulgating prior versions of the
 regulation. The history and context of § 3.156 thus make


     6   The same amendment also added the requirement
 that new and material evidence must “raise a reasonable
 possibility of substantiating the claim.” Duty to Assist, 66
 Fed. Reg. at 45629. The VA clarified that this language
 required only that “there be a reasonable possibility that
 VA assistance would help substantiate the claim,” in ac-
 cordance with the threshold for the VA’s duty to assist. Id.
 (emphasis added). As I further explain in Section III, this
 “reasonable possibility” standard does not require new ev-
 idence to be independently capable of changing the out-
 come of a claim. See infra, 17-18.
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 14                                            KISOR   v. WILKIE



 clear that records relating to unestablished facts necessary
 to substantiate the veteran’s claim are sufficient to trigger
 reconsideration under subsection (c).
                             ***
     Viewed as a whole, the context, history, and purpose of
 reconsideration support a construction of “relevant” that
 entitles Mr. Kisor to relief: that service records are “rele-
 vant” when they help to establish an unestablished fact
 necessary to substantiate a veteran’s claim. Moreover, this
 reading of § 3.156(c) accords with the pro-veteran canon be-
 cause it most effectuates the provision’s remedial purpose
 of (1) ensuring that veterans whose claims were denied
 without the benefit of full VA assistance receive the full re-
 view and assistance they were owed; and (2) compensating
 veterans for any past benefits to which they can prove they
 should have been entitled.
                              III
     Nothing in the majority’s reasoning undermines the
 soundness of this pro-veteran interpretation. The majority
 concludes that a combination of dictionary definitions, con-
 text, and case law “makes clear” that the VA’s interpreta-
 tion is correct, but its inferences and assumptions fail
 under scrutiny.
     First, borrowing from definitions of “relevant” as per-
 taining to “a matter in issue,” 7 the majority assumes that
 “in issue” means “in dispute,” and reasons that evidence
 can only be relevant if it pertains to facts that were “dis-
 puted” during the claim’s prior adjudication. Slip Op. 9, 12.
 Not only is this inference unwarranted in common legal us-
 age, see Fed. R. Evid. 401 advisory committee’s note (“[t]he



      7 See Slip Op. 12 (citing Black’s Law Dictionary (10th
 ed. 2014) (defining “relevant” as “[l]ogically connected and
 tending to prove or disprove a matter in issue”)).
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  KISOR V. WILKIE                                           15



 fact to which [relevant] evidence is directed need not be in
 dispute”), 8 it is fundamentally out of place in the VA’s
 “completely ex-parte system of adjudication.” Hodge, 155
 F.3d at 1362–63. Because no adverse party is expected to
 contest a claimant’s assertions, the question of whether a
 fact is “disputed” has no import for whether it must be sup-
 ported by competent evidence and adjudicated by the VA;
 that question depends instead on whether the fact remains
 unestablished and necessary for substantiating the claim.
 Here, regardless of whether the presence of Mr. Kisor’s in-
 service stressor was “disputed” by the VA, it was not estab-
 lished at the time of the VA’s first decision because the only
 mention of his combat experience in the record—a second-
 hand account by a VA examiner—was not competent evi-
 dence of a stressor. See, e.g., Cohen v. Brown, 10 Vet. App.
 128, 145–46 (1997) (noting, in remanding a case to the
 Board, that “[a]n opinion by a mental health professional
 based on a post[-]service examination of the veteran cannot
 be used to establish the occurrence of the stressor,” and
 that the VA is “not require[d] [to] accept[] . . . a veteran’s
 assertion that he was engaged in combat with the enemy”).
     Next, the majority infers from language in § 3.156(c)(3)
 that relevant records must “speak to the basis for the VA’s




     8   Indeed, the Advisory Committee observed that evi-
 dence directed to an uncontroversial point is often relevant
 and admissible at trial to “aid in understanding” the case.
 Fed. R. Evid. 401 advisory committee’s note. Relatedly, in
 Forshey v. Principi, this court rejected the VA’s argument
 that “relevant” questions of law must have been specifically
 raised and addressed in prior proceedings. 284 F.3d 1335,
 1351–52 (Fed. Cir. 2002). In doing so, we construed “rele-
 vant” to mean “bear[ing] upon or properly apply[ing] to the
 issues before us” based on the term’s dictionary definitions.
 Id. (emphasis added).
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 16                                             KISOR   v. WILKIE



 prior decision.” 9 Slip Op. 12. Subsection (c)(3) provides
 that an award granted after reconsideration can receive a
 retroactive effective date if it is “made based all or in part”
 on the records that triggered reconsideration. § 3.156(c)(3).
 The majority reasons that records that do not “speak to the
 basis for the VA’s prior decision” cannot form all or part of
 the basis for the VA’s current award of benefits after recon-
 sideration. Slip Op. 12. But nothing in the text ties the
 basis of the subsequent award to the basis of the prior de-
 cision. Nor are the two logically linked. If the VA denies a
 claim based on lack of evidence for one element without
 reaching the others, a later decision granting the claim will
 still be “based” on evidence of all the elements. And here,
 the VA’s 2007 award to Mr. Kisor was indisputably “based”
 at least “in part” on his combat records. The majority
 seems to admit as much, see Slip Op. 6, and the Board
 never found otherwise.
     In addition, the majority suggests that language in
 § 5103A(a)(2) excused the VA from further assisting with
 or reconsidering Mr. Kisor’s claim after the first VA exam-
 iner failed to diagnose him with PTSD. Slip Op. 12, 15 (cit-
 ing § 5103A(a)(2)). Section 5103A(a)(2) provides that the



      9  The VA’s position on whether “relevant” records
 must pertain to the “basis for the VA’s prior decision” has
 been a moving target. The Board relied on this require-
 ment in denying Mr. Kisor an earlier effective date. J.A.
 91. In its initial response to Mr. Kisor’s appeal to this
 court, the VA disavowed that interpretation, calling it “dis-
 torted.” Resp. 18–19. This panel accepted that disavowal.
 Kisor I, 869 F.3d at 1369. On remand, the VA changed
 course in its supplemental briefing, asserting unequivo-
 cally that “to be ‘relevant’ for purposes of reconsideration,
 the additional records must speak to the basis for the VA’s
 prior decision.” Gov. Supp. 16. The majority now accepts
 that interpretation without skepticism. Slip Op. 8, 12, 14.
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  KISOR V. WILKIE                                            17



 VA is not obligated to assist with a claim if “no reasonable
 possibility exists that such assistance would aid in sub-
 stantiating the claim.” The majority reasons that if “evi-
 dence does not establish a missing claim element,” then it
 “provides no reasonable possibility that the claim could be
 substantiated.” Slip Op. 15.
      But that reading of § 5103A is irreconcilable with our
 precedent that the VA’s duty to obtain records is not lim-
 ited to “dispositive” evidence. McGee, 511 F.3d at 1358;
 Jones, 918 F.3d at 926. We have emphasized that the VA’s
 duty to assist is excused only when “no reasonable possibil-
 ity exists that such assistance would aid in substantiating
 the claim.” Jones, 918 F.3d at 926 (emphasis in original)
 (citing 38 U.S.C. § 5103A(a)(2)). 10 Even when the availa-
 bility of a new record leaves a claim element unestablished,
 there often remains the possibility that the missing ele-
 ment will be established with further assistance. Indeed,
 the “no reasonable possibility” standard in § 5103A(a)(2)
 was enacted to replace the unduly burdensome “well-
 grounded claim” standard in § 5107(a) that had required a
 veteran to present plausible evidence of each element of his
 claim before triggering the VA’s duty to assist. See Para-
 lyzed Veterans of Am., 345 F.3d at 1343; Epps v. Gober, 126



     10   It is instructive that the VA’s own regulations ap-
 pear to construe the “no reasonable possibility” standard
 extremely narrowly, limiting its examples to claims that
 are incapable of substantiation as a matter of law or fa-
 cially incredible as a matter of fact: e.g., a veteran with a
 dishonorable discharge applying for VA benefits; a compen-
 sation claim for prostate cancer from a female veteran or
 ovarian cancer from a male veteran; a compensation claim
 for a disability that is the result of willful misconduct; or a
 claim for service connection for alcoholism or drug addic-
 tion. 38 C.F.R. § 3.159(d); Duty to Assist, 66 Fed. Reg. at
 17837.
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 18                                            KISOR   v. WILKIE



 F.3d 1464, 1468 (Fed. Cir. 1997). The majority’s reading of
 the “reasonable possibility” standard would import the
 well-pleaded complaint rule into the very provision enacted
 to overrule it.
     Moreover, there is no factual basis for concluding that
 Mr. Kisor’s claim had “no reasonable possibility” of being
 substantiated. The VA treated his claim as capable of sub-
 stantiation when it obtained unit records to substantiate
 his combat stressor. On appeal, the Board found only that
 the combat records did not “manifestly change [the] out-
 come” of the VA’s decision, not that they had no reasonable
 possibility of helping to do so. J.A. 90. In fact, Mr. Kisor’s
 claim was substantiated with the aid of his combat records,
 and not miraculously so. Once there was competent evi-
 dence of Mr. Kisor’s stressor, all that was needed to sub-
 stantiate his claim was a new psychiatric examination.
 Given the history of his first examination, and the circum-
 stantial nature of a PTSD diagnosis, there was at least a
 reasonable possibility that a new examination in light of
 the newly collected evidence would yield a different diag-
 nosis and substantiate his claim. 11
     Finally, the majority relies on language from Blubaugh
 v. McDonald for the proposition that “relevant” service rec-
 ords must (1) “remedy the defects” of a prior decision, (2)
 pertain to facts that were “in question,” and (3) “lead VA to
 award a benefit that was not granted in the previous deci-
 sion.” Slip Op. 14 (citing Blubaugh, 773 F.3d at 1314). But
 the majority reads these statements out of context. In
 Blubaugh, we were not construing the word “relevant” as
 the threshold for reconsideration. We were explaining that
 retroactive benefits are only available under § 3.156(c) if
 entitlement is in fact awarded upon reconsideration of the


      11  As discussed, supra n.4, Mr. Kisor was not unique
 in having different VA examiners reach different diagnoses
 of his condition.
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  KISOR V. WILKIE                                            19



 veteran’s claim. In Blubaugh, the veteran’s claim was de-
 nied when the VA reconsidered his claim in light of his
 newly identified service record—a document that was not
 probative of any fact necessary for substantiating his
 claim. Id. It was in the context of discussing this denial by
 the VA that we explained that the new record did not “rem-
 edy [the] defects” of the prior decision, pertain to facts that
 were “in question,” or “lead VA to award a benefit.” Id. at
 1314. Thus, nothing in Blubaugh suggests that service rec-
 ords are not “relevant” when, as here, the VA awards a
 claim after considering the records and expressly relies on
 the records in making the award.
     Ultimately, nothing in the majority’s reasoning estab-
 lishes that the VA’s outcome determinacy requirement for
 relevance is compelled by the text of the regulation or oth-
 erwise unambiguously correct. Thus, the majority should
 have tested the strength of the VA’s arguments against the
 weight of the pro-veteran canon. That the majority refused
 to do so here deprived Mr. Kisor of the solicitude and inde-
 pendent judgment he was owed in this appeal.
                               IV
     Courts have “long applied the canon that provisions for
 benefits to members of the Armed Services are to be con-
 strued in the beneficiaries’ favor.” Henderson ex rel. Hen-
 derson v. Shinseki, 562 U.S. 428, 441 (2011) (citing King v.
 St. Vincent’s Hosp., 502 U.S. 215, 220–21, n.9 (1991) (inter-
 nal quotations omitted)). Thus, interpretive doubt in such
 provisions should be resolved for the benefit of veteran.
 Brown v. Gardner, 513 U.S. 115, 118 (1994). This canon is
 a corollary of the broader interpretive rule that remedial
 provisions are to be construed liberally to effectuate and
 not frustrate their remedial purpose. See Boone v. Light-
 ner, 319 U.S. 561, 575 (1943); Beley v. Naphtaly, 169 U.S.
 353, 361 (1898).
     This panel unanimously held in Kisor I that the plain
 text of § 3.156(c) was ambiguous as to the scope of the word
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 20                                              KISOR   v. WILKIE



 “relevant,” and that text has not changed since that deci-
 sion. Kisor I, 869 F.3d at 1367. Yet the majority concludes
 that the canon is “not available in this case” because after
 considering arguments that favor the VA’s position under
 the other tools of construction, the provision is not “genu-
 inely ambiguous.” Slip Op. 15–16.
     But while we have held that the pro-veteran canon ap-
 plies only to ambiguous statutes and cannot override plain
 text, that rule does not render the canon a tool of last re-
 sort, subordinate to all others. 12 To the contrary, we have
 stated that the canon applies whenever the plain text does
 not expressly exclude the veteran’s interpretation. Sursely
 v. Peake, 551 F.3d 1351, 1357 (Fed. Cir. 2009); Hudgens v.
 McDonald, 823 F.3d 630, 637 (Fed. Cir. 2016). Thus, we
 have accepted the canon’s guidance over the VA’s reliance
 on a dictionary definition. Hudgens, 823 F.3d at 637. We
 have weighed the canon against countervailing legislative
 history. Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Vet-
 erans Affs., 260 F.3d 1365, 1377–78 (Fed. Cir. 2001). We
 have favored the canon over arguments that the veteran’s
 interpretation would lead to “irrational” results. Sursely,



      12  Indeed, plain text defeats all other tools of con-
 struction. See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct.
 617, 631 (2018) (holding that when “plain language . . . is
 unambiguous, [the court’s] inquiry begins with the statu-
 tory text, and ends there as well” (internal citations omit-
 ted)); see also Decosta v. United States, 987 F.2d 1556, 1558
 n.3 (Fed. Cir. 1993) (holding that “legislative history can-
 not override the plain meaning of a statute.”); Charleston
 Area Med. Ctr., Inc. v. United States, 940 F.3d 1362, 1370
 (Fed. Cir. 2019) (stating that “principles of symmetry can-
 not override the plain text of the statute.”); Stern v. Mar-
 shall, 564 U.S. 462, 478 (2011) (finding constitutional
 avoidance canon inapplicable where it would require re-
 writing the statute).
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  KISOR V. WILKIE                                            21



 551 F.3d at 1357–58. While the canon may not be disposi-
 tive of a provision’s meaning every time it is applied, we
 are obligated to weigh it alongside the other tools of con-
 struction when the text itself gives us doubt.
      Here, the majority points to nothing in the text that
 precludes Mr. Kisor’s interpretation of “relevant.” Indeed,
 this panel accepted in Kisor I that his position was reason-
 able. Kisor I, 869 F.3d at 1368. While the majority now
 rejects his view as “squarely contrary” to what it concludes
 is the “correct reading” of the regulation, it does not explain
 why his reading is now contrary to the text.
     The majority wrongly assumes that the Supreme
 Court’s “genuine ambiguity” criterion for Auer deference
 applies to the pro-veteran canon. See Slip Op. 15–16. In
 setting the preconditions for Auer deference, the Court re-
 quires courts to first exhaust the “traditional tools of con-
 struction” because “the core theory of Auer deference is that
 sometimes the law runs out, and [a] policy-laden choice is
 what is left over.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415
 (2019) (“Kisor II”). The pro-veteran canon is not based on
 this “deference” theory. The canon does not serve to pro-
 vide a “policy-laden” position, adrift from traditional legal
 principles, that differs with each case. Id. Rather, the pro-
 veteran canon is squarely rooted in the purpose of veterans’
 benefit provisions, which we are bound to consider and ef-
 fectuate in every construction.
      If, as the majority seems to suggest, we can set aside
 the pro-veteran canon unless and until all other considera-
 tions are tied, then the canon is dead because there is no
 such “equipoise” in legal arguments. Id. at 2429–30 (Gor-
 such, J., concurring in the judgment). It is our role as the
 court to fully employ the canons available in our “tradi-
 tional interpretive toolkit” to reach “the best and fairest
 reading of the law.” Id. at 2430, 2446. In this case, when
 the regulatory text provides no clear answer as to the scope
 of the word “relevant,” our consideration of other sources of
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 22                                             KISOR   v. WILKIE



 its meaning should be guided by solicitude for the provi-
 sion’s pro-veteran remedial purpose.
     Here, reconsideration under § 3.156(c) serves two re-
 medial purposes: procedurally, it acknowledges to the vet-
 eran that the VA failed in its duty to assist him and
 provides him with the complete and sympathetic assis-
 tance and review that he was owed; substantively, it makes
 the veteran financially whole for the benefits that he can
 now prove he was entitled to. The VA’s interpretation frus-
 trates both of those purposes. It denies veterans the right
 to a fair review unless they make the often impossible
 showing that an unsought record would have changed the
 course of the VA’s prior decision. And it bars veterans from
 recovering compensation that is rightfully theirs.
      The unreasonableness of that construction is plain in
 this case. The VA undeniably failed Mr. Kisor in this case
 when it made no effort whatsoever to obtain records to sub-
 stantiate his in-service stressor. Rather than acknowledge
 its failure and make amends for it, the VA placed the bur-
 den on Mr. Kisor to show that its mistake was dispositive
 of its decision against him. When the agency deemed its
 new requirement unsatisfied, it denied the veteran twenty-
 three years of benefits for PTSD that he can now prove he
 suffered as a result of his service.
      Those payments were compensatory, not charitable.
 They rightfully belonged to Mr. Kisor and his family.
 When Mr. Kisor and millions of others joined the armed
 services in their youth, for modest pay, risking the rest of
 their lives, they did so with the government’s promise that
 upon their return, it would make them as whole as possi-
 ble, if only financially, for their wounds, and that, as veter-
 ans, they would be treated fairly and sympathetically in
 the process. That is the basic purpose of the VA’s existence.
 Its governing statutes and regulations should always be
 construed liberally within the bounds of their text to
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  KISOR V. WILKIE                                           23



 effectuate that purpose. This recognition is at the core of
 the pro-veteran canon. The majority waves it aside.
     On this remand, freed from deference to the agency, we
 owed Mr. Kisor our best independent judgment of the law’s
 meaning. We fail in that obligation when we again accept
 the VA’s arguments unmoored from both the text of the law
 and the basic principles underlying its purpose.
     For these reasons, I dissent.
