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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

2016-1929

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

Gardner-Dickson v. Wilkie, No. 19-4765 (DATED: October 21, 2020);

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-4765
KATHY GARDNER-DICKSON, PETITIONER,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before GREENBERG, MEREDITH, and FALVEY, Judges.
O R D E R
FALVEY, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting
opinion.
During the Vietnam era, Air Force veteran Herbert E. Dickson was stationed at the Korat
Royal Air Force Base in Thailand. Years after service, he developed ischemic heart disease and filed a claim for VA disability compensation. He told VA that temporary duty had brought him near the perimeter of the base where herbicides were sprayed and to the flight line near aircraft that carried Agent Orange. Although VA presumes both herbicide exposure in certain veterans who served on or near the perimeters of military bases in Thailand and an etiological link between the presumed exposure and ischemic heart disease, it did not immediately grant the veteran’s claim.
Rather, on April 2, 2019, the Board of Veterans’ Appeals (Board) remanded the matter for further
evidentiary development.
Mr. Dickson promptly filed a motion for Board reconsideration and, when that was denied,
he filed the petition that is before us today. Mr. Dickson unfortunately passed away during these
proceedings, and his widow, Ms. Kathy Gardner-Dickson, has been substituted as the petitioner.
The petition was denied in a single-judge decision because the petitioner had adequate alternative
means to obtain the desired relief and had not shown that the petition was in aid of our jurisdiction.
A motion for a panel decision was filed and the case was submitted to the panel, which heard oral
argument

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