Kisor v. McDonough, No. 2016-1929 (OPINION ISSUED: August 12, 2020, OPINION MODIFIED: April 30, 2021); Supreme Court stated that “[f]irst and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous; in the context of § 3.156(c)(1), the term “relevant” has only “one reasonable meaning,” …, in order to be “relevant,” a record must speak to a matter in issue, in other words, a matter in dispute; we conclude the term “relevant” has only one reasonable meaning in the context of § 3.156(c)(1): the “relevant” service records must, in the sense we have explained, speak to a matter in issue, in other words, a matter in dispute;
United States Court of Appeals for the Federal Circuit
JAMES L. KISOR, Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 14-2811, Senior Judge Alan G. Lance, Sr.
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.
This opinion has been modified and reissued following a petition for rehearing filed by Appellant.
Case: 16-1929 Document: 95 Page: 1 Filed: 04/30/2021
KISOR 2 v. MCDONOUGH
IGOR HELMAN, Commercial Litigation Branch, Civil Di-vision, 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.
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) (“Kisor I”), we affirmed the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) in