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.

______________________

ON PETITION FOR REHEARING EN BANC

______________________

PAUL WHITFIELD HUGHES, McDermott, Will & Emery 

LLP, Washington, DC, filed a petition for rehearing en 

banc for claimant-appellant. Also represented by KENNETH 

M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS.

 IGOR HELMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, filed a response to the petition for respondent-appellee. 

Also represented by JEFFREY B. CLARK, MARTIN F. HOCKEY,

JR., ROBERT EDWARD KIRSCHMAN, JR.; Y. KEN LEE, 

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2 KISOR v. MCDONOUGH

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 PROST, Chief Judge, NEWMAN, LOURIE, DYK, 

MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, 

HUGHES, and STOLL, Circuit Judges. 

PROST, Chief Judge, with whom LOURIE, WALLACH,

TARANTO, and CHEN, Circuit Judges, join, and with whom 

HUGHES, Circuit Judge, joins as to Parts I.B–C and II, 

concurs in the denial of the petition for rehearing en banc. 

HUGHES, Circuit Judge, with whom WALLACH, Circuit 

Judge, joins, concurs in the denial of the petition for 

rehearing en banc. 

DYK, Circuit Judge, concurs in the denial of the petition 

for rehearing en banc. 

O’MALLEY, Circuit Judge, with whom NEWMAN, MOORE,

and REYNA, Circuit Judges, join, dissents from the denial 

of the petition for rehearing en banc. 

REYNA, Circuit Judge, with whom NEWMAN, MOORE, and

O’MALLEY, Circuit Judges, join, dissents from the denial 

of the petition for rehearing en banc. 

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KISOR v. MCDONOUGH 3

PER CURIAM.

O R D E R

James L. Kisor filed a petition for rehearing en banc. 

A response to the petition was invited by the court and filed 

by the Secretary of Veterans Affairs. American Veterans, 

National Organization of Veterans’ Advocates, Inc., Paralyzed Veterans of America, Veterans of Foreign Wars of the 

United States, and Vietnam Veterans of America requested leave to file a brief as amici curiae, which the court 

granted. The petition for rehearing, response, and amicus 

brief were first referred to the panel that heard the appeal, 

which granted the petition in part as indicated in the accompanying order. Thereafter, the petition was referred to 

the circuit judges who are in regular active service. The 

court conducted a poll on request, and the poll failed. 

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for rehearing en banc is denied.

April 30, 2021

 Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

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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.

______________________

PROST, Chief Judge, with whom LOURIE, WALLACH,

TARANTO, and CHEN, Circuit Judges, join, and with whom 

HUGHES, Circuit Judge, joins as to Parts I.B–C and II, 

concurring in the denial of the petition for rehearing en 

banc.

I concur with the court’s decision to deny rehearing en 

banc. I write separately in response to my dissenting colleagues regarding the proper role of the pro-veteran canon, 

which instructs that “interpretive doubt” is to be resolved 

in the veteran’s favor. Brown v. Gardner, 513 U.S. 115, 118 

(1994). In what follows, I (I) delineate my view of the 

proper place for this canon in the order-of-operations of textual interpretation, (II) respond to my dissenting 

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2 KISOR v. MCDONOUGH

colleagues’ treatment of this canon, and (III) discuss the 

unresolved tension between this canon and the Supreme 

Court’s Chevron and Auer doctrines. 

DISCUSSION

I. THE PROPER ROLE OF THE PRO-VETERAN CANON

In my view, the Majority is right: “Interpretive doubt” 

is a precondition for applying the pro-veteran canon, and

that precondition “is not satisfied where a sole reasonable 

meaning is identified through the use of ordinary textual 

analysis tools.” Maj. at 16.1 Put another way, courts must 

first seek the “best reading” of the statute based on “the 

words themselves,” “the context of the whole statute,” and 

“any other applicable semantic canons, which at the end of 

the day are simply a fancy way of referring to the general 

rules by which we understand the English language.” 

Brett M. Kavanaugh, Fixing Statutory Interpretation, 

129 Harv. L. Rev. 2118, 2144–45 (2016) (reviewing Robert 

A. Katzmann, Judging Statutes (2014)). As explained in 

detail below, in view of (A) the Supreme Court’s insistence 

on the primacy of text, (B) the pro-veteran canon’s historical usage and the other canons most like it, and (C) Congress’s consistently active role in veterans law, I am 

persuaded that the pro-veteran canon should play a role 

only when a sustained textual analysis—including any applicable descriptive canons—yields competing plausible interpretations, none of which is fairly described as the best. 

A. THE PRIMACY OF TEXT

In order to place the pro-veteran canon in the Supreme 

Court’s interpretive methodology, it is necessary to first set 

1 I refer to the Majority’s panel opinion as “Maj.” I 

refer to Judge Reyna’s dissent from the panel’s opinion as 

“Panel Dissent.” I refer to Judge O’Malley’s dissent from 

the denial of rehearing en banc as “O’Malley Dissent.” 

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KISOR v. MCDONOUGH 3

the stage by outlining the hierarchy of interpretive tools 

the Court applies.2 At the top of this hierarchy is the text. 

In the Court’s words, “canons of construction are no more 

than rules of thumb,” and the text is the “one, cardinal 

canon” a court must turn to “before all others.” Conn. Nat’l

Bank v. Germain, 503 U.S. 249, 253 (1992). And “[w]hen 

the words of a statute are unambiguous, . . . this first canon 

is also the last: ‘judicial inquiry is complete.’” Id. at 254 

(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)); 

accord Katzmann, supra, at 29 (“When statutes are unambiguous, . . . the inquiry for a court generally ends with an 

examination of the words of the statute.”). Of course, this 

2 Although the interpretive method described in this 

opinion is often set forth with reference to statutes, the 

same general methodology applies to regulations, as in this 

case. See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (explaining that “a court must exhaust all the ‘traditional 

tools’ of construction” and observing that Chevron U.S.A. 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 843 n.9 (1984), adopted the “same approach for ambiguous statutes”). That said, if the pro-veteran canon is 

based on the theory that it is a proxy for congressional intent, one wonders why it should apply to regulations as 

well as statutes, or at least whether it would apply with 

equal force. The Supreme Court has not addressed that 

question. Regardless, because our court did apply the 

canon to a regulation in Hudgens v. McDonald, 823 F.3d 

630 (Fed. Cir. 2016), I will assume for purposes of this opinion that it applies to both statutes and regulations. Even 

on this assumption, it is important when interpreting a 

regulation to consider the specific statutory provisions reflecting the pertinent congressional policies, which may include important limits on benefits. For example, as 

relevant here, the statute’s finality policies tightly limit 

retroactive alteration of final agency determinations while 

making prospective redetermination broadly available. 

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4 KISOR v. MCDONOUGH

text-first rule is not an instruction to “construe the meaning of statutory terms in a vacuum.” Tyler v. Cain, 

533 U.S. 656, 662 (2001). Rather, our focus on the text requires us to “interpret the words in their context and with 

a view to their place in the overall statutory scheme.” Id.

(internal quotation marks omitted). 

As we analyze text and context, some canons of interpretation enter the analysis. “Canons are general background principles that courts have developed over time to 

guide statutory interpretation.” Arangure v. Whitaker, 

911 F.3d 333, 339 (6th Cir. 2018). They come in several 

flavors. Many canons are no more than aids for analyzing

the text and context, “guides to solving the puzzle of textual 

meaning.” Antonin Scalia & Bryan A. Garner, Reading 

Law 59 (2012). These “descriptive” canons “simply reflect 

broader conventions of language use, common in society at 

large at the time the statute was enacted.” Caleb Nelson, 

What Is Textualism?, 91 Va. L. Rev. 347, 383 (2005).3 The

series-qualifier canon, for example, “generally reflects the 

most natural reading of a sentence.” Facebook, Inc. v. 

Duguid, 141 S. Ct. 1163, 1169 (2021); id. at 1169–73 (identifying best meaning by analyzing text, context, and descriptive canons). Other familiar examples include 

expressio unius est exclusio alterius (the expression of one 

thing implies the exclusion of others) and noscitur a sociis

(associated words bear on one another’s meaning). See generally Scalia & Garner, supra, at 107–11, 195–98. Canons 

3 My focus when discussing descriptive canons is on 

the “strongest species”—i.e., those that “clearly and exclusively serve descriptive, rather than normative, purposes.” 

See Arangure, 911 F.3d at 340. These canons, which may 

also be termed “linguistic” canons, may be further categorized under other labels, such as “semantic,” “syntactic,” or 

“contextual.” See generally Scalia & Garner, supra, 

at 69–234. 

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KISOR v. MCDONOUGH 5

of this sort “are not ‘rules’ of interpretation in any strict 

sense but presumptions about what an intelligently produced text conveys.” Facebook, 141 S. Ct. at 1174 (Alito, J.,

concurring) (quoting Scalia & Garner, supra, at 51). 

Other canons “direct courts to construe any ambiguity 

in a particular way in order to further some policy objective.” Nelson, supra, at 418 n.140 (quoting Stephen F. 

Ross, Where Have You Gone, Karl Llewellyn? Should Congress Turn Its Lonely Eyes to You?, 45 Vand. L. Rev. 561, 

563 (1992)). Canons of this sort are a type of “normative” 

canon. Id. They enter the calculus when judges “need 

some way to finish the job and to pick from among the possible meanings that their primary interpretive tools have 

identified.” Id. at 394. Accordingly, many normative canons “express a rule of thumb for choosing between equally 

plausible interpretations of ambiguous text”—i.e., when 

descriptive tools do not illuminate a best meaning. Amy 

Coney Barrett, Substantive Canons and Faithful Agency, 

90 B.U. L. Rev. 109, 109 (2010). As explained below, the

pro-veteran canon is of this variety—and therefore should 

be considered only if descriptive tools do not yield a best 

meaning. 

B. THE HISTORY OF THE PRO-VETERAN CANON

With that backdrop in place, I turn to the pro-veteran 

canon. The canon’s history is relatively short. It appears 

to have originated with a closing remark in the Supreme 

Court’s World War II–era Boone v. Lightner opinion.

319 U.S. 561 (1943).4 Not citing any authority, the Court 

concluded by stating that “[t]he Soldiers’ and Sailors’ Civil 

Relief Act is always to be liberally construed to protect 

4 The rule of lenity, by comparison, “antedates both 

state and federal constitutions.” Scalia & Garner, supra, 

at 297. 

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6 KISOR v. MCDONOUGH

those who have been obliged to drop their own affairs to 

take up the burdens of the nation.” Id. at 575. 

Since Boone, the Court has applied the canon rarely. 

In some cases, the Court has referenced the canon without

expressly applying it in statutory analysis. Ala. Power Co. 

v. Davis, 431 U.S. 581, 584 (1977) (analyzing Military Selective Service Act of 1967); Coffy v. Republic Steel Corp., 

447 U.S. 191, 196 (1980) (analyzing Vietnam Era Veterans’

Readjustment Assistance Act of 1974); Shinseki v. Sanders, 

556 U.S. 396, 412 (2009) (recognizing Congress’s “solicitude 

for the veterans’ cause” but not applying the canon). In 

others, the Court has not mentioned the canon at all. See

McKinney v. Missouri-Kansas-Texas R.R. Co., 357 U.S. 265 

(1958) (analyzing Universal Military Training and Service 

Act); Accardi v. Penn. R.R. Co., 383 U.S. 225 (1966) (analyzing Selective Training and Service Act of 1940); Foster 

v. Dravo Corp., 420 U.S. 92 (1975) (analyzing Military Selective Service Act); Monroe v. Standard Oil Co., 452 U.S. 

549 (1981) (ignoring the dissent’s mention of the canon); 

Conroy v. Aniskoff, 507 U.S. 511 (1993) (ignoring the concurrence’s mention of the canon). In still others, the Court 

has invoked the canon only to further confirm an interpretation that it reached by analyzing text and context. E.g., 

King v. St. Vincent’s Hosp., 502 U.S. 215, 221 n.9 (1991); 

Brown, 513 U.S. at 118; see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (also analyzing structure of the statutory scheme). Importantly, as the Court 

explained in Brown, the canon applies only when there is 

“interpretive doubt.” 513 U.S. at 118.5 

5 Accordingly, we have repeatedly emphasized this 

precondition. See, e.g., McKnight v. Gober, 131 F.3d 1483, 

1485 (Fed. Cir. 1997); Jones v. West, 136 F.3d 1296, 1299 

n.2 (Fed. Cir. 1998); Boyer v. West, 210 F.3d 1351, 1355 

(Fed. Cir. 2000); Paralyzed Veterans of Am. v. Sec’y of 

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KISOR v. MCDONOUGH 7

The Supreme Court has therefore used two formulations of the pro-veteran canon. The Court’s initial formulation provides that provisions are “to be liberally 

construed” for the benefit of veterans. Boone, 319 U.S. 

at 575. This version resembles the broader notion that remedial statutes should be liberally construed. See generally Scalia & Garner, supra, at 364–66. The more recent 

formulation, on the other hand, provides that “interpretive 

doubt” is to be resolved in the veteran’s favor. Brown, 

513 U.S. at 118. This version closely resembles the rule of 

lenity, which instructs that ambiguity in a statute defining 

a crime or imposing a penalty should be resolved in the defendant’s favor. See, e.g., Moskal v. United States, 498 U.S. 

103, 108 (1990) (“[W]e have always reserved lenity for 

those situations in which a reasonable doubt persists . . . .”); see generally Scalia & Garner, supra,

at 296–302. As explained below, the result is the same under either formulation: The pro-veteran canon should be 

considered only after descriptive tools fail to yield a best 

meaning of the provision. 

1. THE BOONE FORMULATION

The canon’s origin as a species of the liberal-construction principle is one reason why the canon should play no 

role until after a full textual analysis yields no best meaning. As an initial matter, the liberal-construction principle 

has long been understood to yield to the text (as illuminated by the descriptive canons). As Justice Story once explained, “this liberality of exposition . . . is clearly 

Veterans Affairs, 345 F.3d 1334, 1340 (Fed. Cir. 2003); 

Thomas v. Nicholson, 423 F.3d 1279, 1284 n.5 (Fed. Cir. 

2005); Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 

2010); Frederick v. Shinseki, 684 F.3d 1263, 1269 (Fed. Cir. 

2012); Spicer v. Shinseki, 752 F.3d 1367, 1371 (Fed. Cir. 

2014); Parrott v. Shulkin, 851 F.3d 1242, 1251 (Fed. Cir. 

2017). 

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8 KISOR v. MCDONOUGH

inadmissible, if it extends beyond the just and ordinary 

sense of the terms.” Scalia & Garner, supra, at 364 (quoting 1 Joseph Story, Commentaries on the Constitution of 

the United States § 429, 304 (2d ed. 1858)).6 

Any broader view of the liberal-construction principle 

is now heavily disfavored. The Supreme Court has called 

the principle, when broadly understood to override the fair 

meaning of the text, the “last redoubt of losing causes.” 

Dir., Off. of Workers’ Comp. Programs, Dep’t of Labor v. 

Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 

135 (1995). And for good reason. Such a view “is premised 

on two mistaken ideas: (1) that statutes have a singular 

purpose and (2) that Congress wants statutes to extend as 

far as possible in service of that purpose.” Keen v. Helson, 

930 F.3d 799, 805 (6th Cir. 2019). Contrary to those mistaken ideas, the Supreme Court has explained that “[l]egislation is, after all, the art of compromise, the limitations 

expressed in statutory terms often the price of passage, and 

no statute yet known pursues its stated purpose at all 

costs.” Henson v. Santander Consumer USA Inc., 

137 S. Ct. 1718, 1725 (2017) (cleaned up). Indeed, “[e]very 

statute proposes, not only to achieve certain ends, but also 

to achieve them by particular means—and there is often a 

considerable legislative battle over what those means 

ought to be.” Newport News, 514 U.S. at 136. As Justice Sotomayor recently remarked for a unanimous Court: 

6 The liberal-construction principle may have begun 

long ago as an “antidote” to the rule that statutes in derogation of the common law were to be strictly construed—

reducing it to “nothing more than rejection of ‘strict construction’ and insistence on fair meaning.” Scalia & Garner, supra, at 365–66. Justice Scalia remarked, however, 

that courts have at times used the liberal-construction 

principle “to devastating effect.” Antonin Scalia, A Matter 

of Interpretation 27–28 (1997). 

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KISOR v. MCDONOUGH 9

It is not for us to “take a chainsaw to . . . nuanced problems 

when Congress meant to use a scalpel.” Facebook, 141 S.

Ct. at 1171; see also id. at 1172–73 (rejecting “mere[] gestures at Congress’ ‘broad privacy-protection goals’” because 

the Court “must interpret what Congress wrote”). Ultimately “the effort, with respect to any statute, should be 

neither liberally to expand nor strictly to constrict its 

meaning, but rather to get the meaning precisely right.” 

Antonin Scalia, Assorted Canards of Contemporary Legal 

Analysis, 40 Case W. Res. L. Rev. 581, 582 (1990). At best, 

to the extent that there are legitimate uses of the liberalconstruction principle, it “may be invoked, in case of ambiguity, to find present rather than absent elements that are 

essential to operation of a legislative scheme; but it does

not add features that will achieve the statutory ‘purposes’

more effectively.” Newport News, 514 U.S. at 135–36. 

Consistent with this critique, the Supreme Court in 

some cases has rejected the liberal-construction principle’s 

application altogether. In Norfolk Southern Railway Co. v. 

Sorrell, for example, the Court rejected a party’s reliance 

on the “remedial purpose” and “history of liberal construction” of the Federal Employers’ Liability Act (“FELA”).

549 U.S. 158, 171 (2007). Although the Court recognized 

that “FELA was indeed enacted to benefit railroad employees,” the Court explained that “[i]t does not follow, however, that this remedial purpose requires us to interpret 

every uncertainty in the Act in favor of employees.” Id.

(citing Rodriguez v. United States, 480 U.S. 522, 526 (1987) 

(per curiam) (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”)). 

The Court concluded that “the statute’s remedial purpose 

cannot compensate for the lack of a statutory basis.” Id.; 

see also Cronin v. United States, 765 F.3d 1331, 1337–38 

(Fed. Cir. 2014) (declining to rest on “the need to construe 

[a statute] liberally for members of the armed services” because doing so does not “give sufficient weight to the 

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10 KISOR v. MCDONOUGH

natural meaning” of the provision “given its language and 

setting” and because “no legislation pursues its purposes at 

all costs”). 

Similarly, the Court in CTS Corp. v. Waldburger disagreed with the Fourth Circuit’s analysis, which relied on 

“the proposition that remedial statutes should be interpreted in a liberal manner.” 573 U.S. 1, 12 (2014). Specifically, the Court explained that the Fourth Circuit “was in 

error when it treated this as a substitute for a conclusion 

grounded in the statute’s text and structure.” Id.; see also

Rodriguez, 480 U.S. at 525 (“[M]ost impermissibly, the 

Court of Appeals relied on its understanding of the broad 

purposes of the [statute] . . . .”). After all, the Court emphasized, “no legislation pursues its purposes at all costs.” 

CTS Corp., 573 U.S. at 12. To the contrary, “[c]ongressional intent is discerned primarily from the statutory 

text.” Id. After dismissing the liberal-construction principle outright, the Court interpreted the statute by undertaking a sustained textual analysis. Id. at 12–18. Only 

after doing so did the Court consult a normative canon—

that “when the text of a pre-emption clause is susceptible 

of more than one plausible reading, courts ordinarily accept 

the reading that disfavors pre-emption”—and only for “additional support.” Id. at 18–19 (internal quotation marks 

omitted). 

Christopher v. SmithKline Beecham Corp., on which 

Judge O’Malley relies, further proves the point. See O’Malley Dissent at 20–21 (discussing 567 U.S. 142 (2012)). After deciding that it would be improper to defer under Auer 

v. Robbins, 519 U.S. 452 (1997), the Court in Christopher

proceeded to “employ traditional tools of interpretation.” 

567 U.S. at 161.7 The Court followed the usual hierarchy. 

7 Deferring under Auer there would have produced 

“unfair surprise” and deprived the employer of “fair warning” under the Court’s cases. Christopher, 567 U.S. at 156. 

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KISOR v. MCDONOUGH 11

It started with the text. Id. Then it analyzed the context. 

Id. at 162 (explaining that “any” can mean “different things 

depending upon the setting”). Next, it consulted a descriptive canon: “the rule of ejusdem generis should guide our 

interpretation of the catchall phrase, since it follows a list 

of specific items.” Id. at 163. Only after that descriptive 

analysis did the Court turn to a normative canon—mentioning in a footnote a statement in an earlier case that exemptions for employers in the FLSA must be “narrowly 

construed against the employers.” Id. at 164 n.21 (quoting 

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). 

But the Court in Christopher did not even apply that 

canon, noting instead that it was “inapposite” because the 

Court was “interpreting a general definition that applies 

throughout the FLSA.” Id. Although Judge O’Malley argues that Christopher “did not relegate the remedial purpose of the [FLSA] scheme to an afterthought,” O’Malley 

Dissent at 21, in fact Christopher declared the canon inapplicable to the case before it. And when the Court, near the 

end of its opinion, stated that its interpretation “comports 

with the apparent purpose” of the particular FLSA provision at issue, Christopher, 567 U.S. at 166, it was not applying a liberal-interpretation canon for remedial laws, but 

completing its textualist determination of the “fair reading” of the statute—a determination that “requires an ability to comprehend the purpose of the text, which is a vital 

part of its context.” Scalia & Garner, supra, at 33. Christopher decided the case by analyzing the text in context. 

And although Judge O’Malley relies on Christopher to assert that “[v]eterans deserve no less protection than low 

wage employees,” O’Malley Dissent at 12, Christopher actually held in favor of the employers. 

Importantly, Boone itself, the progenitor of the pro-veteran canon, followed a similar path—relying on the text to 

reject the veteran’s interpretation by applying descriptive 

“[c]anons of statutory construction.” 319 U.S. at 565 (reasoning that “we should not needlessly render as 

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12 KISOR v. MCDONOUGH

meaningless the [statutory] language”). Accordingly, the 

origin of the pro-veteran canon as a species of the liberalconstruction principle confirms that it belongs at the end 

of a descriptive textual analysis when that analysis does 

not yield a best meaning. 

2. THE BROWN FORMULATION

The more recent “interpretive doubt” formulation of the 

pro-veteran canon, which was articulated in Brown, does 

nothing to elevate the canon in the interpretive hierarchy. 

To the contrary, as a logical matter, if “interpretive doubt” 

is a precondition for applying the canon, as Brown declares, 

the existence of interpretive doubt must be determined 

without employing the canon. Otherwise, circularity results. 

The Brown formulation strongly resembles the rule of 

lenity, moreover, and that rule is considered at the end of 

the analysis. In the words of Chief Justice Marshall, a 

court should not apply the rule unless the statute remains 

ambiguous “[a]fter seiz[ing] every thing from which aid can 

be derived.” Moskal, 498 U.S. at 108 (quoting United 

States v. Fisher, 2 Cranch 358, 386 (1805)) (alterations in 

original and internal quotation marks omitted). Last year 

in Shular v. United States, for example, the Court concluded that the statute’s text and context left “no ambiguity 

for the rule of lenity to resolve” after a textual analysis.

140 S. Ct. 779, 787 (2020). Speaking for the unanimous 

Court, Justice Ginsburg explained that the rule “applies 

only when, after consulting traditional canons of statutory 

construction, we are left with an ambiguous statute.” Id. 

Similarly in Yates v. United States, the Court performed a 

textual analysis—featuring the canon against surplusage, 

noscitur a sociis, and ejusdem generis—and only after doing 

so buttressed its interpretation with a remark that “if our 

recourse to traditional tools of statutory construction

leaves any doubt[,] . . . we would invoke the rule [of lenity].” 

574 U.S. 528, 543–47 (2015). And again, as Boone did with 

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KISOR v. MCDONOUGH 13

the older formulation of the pro-veteran canon, Brown similarly treated this more recent “interpretive doubt” formulation as subsidiary to the text and relevant context. In 

Brown, the Court declined to apply the canon because the 

statute was unambiguous. 513 U.S. at 117–18 (“The most, 

then, that the Government could claim . . . is the existence 

of an ambiguity . . . (assuming that such a resolution would 

be possible after applying the rule that interpretive doubt 

is to be resolved in the veteran’s favor). But the Government cannot plausibly make even this claim here.” (citation 

omitted)). 

What’s more, contrary to Judge O’Malley’s suggestion 

that the pro-veteran canon in Brown did not rank below 

descriptive canons, O’Malley Dissent at 14–16, the Court 

in Brown concluded that the statute was not ambiguous by 

applying a descriptive canon: the “presumption that a given 

term is used to mean the same thing throughout a statute,” 

which is “at its most vigorous when a term is repeated 

within a given sentence.” 513 U.S. at 18. Brown came just 

three years after St. Vincent’s Hospital similarly held for

the veteran based on a descriptive analysis of the statute. 

502 U.S. at 218–22. There, the Court’s reasoning proceeded in two steps. First, the Court announced that it

would “start with the text.” Id. at 218. Second, it assessed 

the “context.” Id. at 221 (“[W]e do nothing more, of course, 

than follow the cardinal rule that a statute is to be read as 

a whole, since the meaning of statutory language, plain or 

not, depends on context.” (citation omitted)). In a footnote, 

the Court in St. Vincent’s Hospital surmised that even if a 

neighboring subsection of the statute “unsettled the significance of [the provision’s] drafting,” the Court “would ultimately read the provision in [the veteran’s] favor.” Id. n.9. 

Accordingly, just as the Court has “declined to deem a 

statute ‘ambiguous’ for purposes of lenity merely because 

it was possible to articulate a construction more narrow 

than that urged by the Government,” see Moskal, 498 U.S. 

at 108, it stands to reason that we should decline to find 

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14 KISOR v. MCDONOUGH

ambiguity for purposes of the pro-veteran canon merely because a veteran-friendly construction is possible. The proveteran canon—like the rule of lenity—“comes into operation at the end of the process of construing what Congress 

has expressed, not at the beginning as an overriding consideration.” See Callanan v. United States, 364 U.S. 587, 

596 (1961).8 

C. CONGRESS’S ACTIVE ROLE

Congress’s active engagement in this area of law is a 

further reason we should constrain ourselves to apply the 

pro-veteran canon only after descriptive tools do not yield 

8 Judge O’Malley attempts to distinguish the proveteran canon from the rule of lenity by arguing that, while 

the rule of lenity is a “judge-made tie breaker[] implementing judicial policy choices,” the pro-veteran canon is a 

“rule[] implementing congressional intent.” O’Malley Dissent at 18. First, both canons are judge-made. Second, 

conceptualizing and applying a broad notion of “congressional intent” at the “liberal construction” level of generality is also a judicial policy choice. See 3 Sutherland 

Statutory Construction § 58:1 (8th ed.) (“In cases of unresolvable ambiguity, [courts] additionally may rely on the 

presumptions embodied by strict and liberal construction 

as tie-breakers of last resort, a ‘thumb on the scale’ that 

allows them to fulfill their adjudicatory mandate.” (footnote omitted)); id. (“[S]trict and liberal approaches to statutory language are normative, explicitly preferring certain 

interpretive results over others.”). Indeed, resolving ambiguity with the pro-veteran canon instead of Auer in this 

case would have implemented one judicial policy choice 

over another. See Kisor v. Shulkin, 880 F.3d 1378, 1379 

(Fed. Cir. 2018) (O’Malley, J., dissenting from denial of rehearing en banc) (“When these two doctrines pull in different directions, it is Auer deference that must give way.”). 

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KISOR v. MCDONOUGH 15

a best meaning.9 Even if we accept the theory that the proveteran canon is justified as a proxy for congressional intent, Congress’s undeniably active role in veterans’ benefits law mitigates the concern that we will frustrate 

Congress’s efforts by declining to apply at the outset a 

highly generalized veteran-friendly policy that is above 

and beyond the specific policies expressed in the text.

If the canon’s predicate is Congress’s intent, one thing 

that is clear about Congress’s intent in this area is that it 

means to make very specific prescriptions, taking account 

of competing policies, and to monitor their implementation 

and actively adjust its laws as it deems necessary. Congress did not write a highly general law and leave the rest 

to the judiciary (or the Secretary). Far from it. There are 

few areas in which Congress has been so consistently proactive as it is here, in pursuit of its mission to ensure that 

our veterans are cared for. Indeed, both the House and the 

Senate have committees created exclusively for, and dedicated exclusively to, overseeing veterans’ affairs. Senator 

Tester (MT), chairman of the Senate committee, has expressed that “Congress must hold the Department of Veterans Affairs (VA) accountable in delivering timely, 

quality, and robust care and benefits to all veterans.”10 

Similarly, Senator Moran (KS), ranking member of that 

committee, has explained that the committee’s “top priority 

is to make sure we take care of our veterans who have dedicated their lives to serving our country” and has stated his 

intention to “work to make certain the U.S. Department of 

9 This part of my opinion is directed to underscoring 

the proper order of analysis. Contrary to Judge O’Malley’s 

assertion, it is not an argument “not to consider the proveteran canon of construction when considering a less than 

clear term.” See O’Malley Dissent at 11 n.3. 10 U.S. Senate Committee on Veterans’ Aff., 

https://www.veterans.senate.gov/about/chairman.

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16 KISOR v. MCDONOUGH

Veterans Affairs (VA) implements the Congressional reforms laid out in the VA MISSION Act bringing the VA into 

the 21st century and providing veterans with the best possible care and services.”11 And they have been busy. Indeed, a quick search reveals that no fewer than 134 pieces 

of legislation originating in these two committees have 

been signed into law over the last decade (i.e., during the

six most recent Congresses).12 

Indeed, as we have previously pointed out, “Congress 

has repeatedly passed legislation on veterans’ benefits, including legislation specifically overruling judicial and 

agency interpretations of the veterans’ benefits statutes.” 

Sears v. Principi, 349 F.3d 1326, 1330 (Fed. Cir. 2003). For 

example, Congress enacted the Veterans Claims Assistance Act of 2000 (“VCAA”) to legislatively overturn a 1999 

decision of the Court of Appeals for Veterans Claims, 

thereby “eliminat[ing] the ‘well-grounded’ claim requirement” applied in that decision. Mayfield v. Nicholson, 

499 F.3d 1317, 1319 (Fed. Cir. 2007); see also Webster v. 

Shinseki, 428 F. App’x 976, 978 (Fed. Cir. 2011) (recognizing that the “well-grounded claim” rule “has been legislatively overturned”).13 In other words, Congress has been 

11 U.S. Senate Committee on Veterans’ Aff., 

https://www.veterans.senate.gov/about/ranking. 12 https://www.congress.gov/ (legislation search).

13 In the evidentiary context, Congress has expressly 

prescribed a scale-tipping rule in favor of veterans. 

38 U.S.C. § 5107(b) (“When there is an approximate balance of positive and negative evidence regarding any issue 

material to the determination of a matter, the Secretary 

shall give the benefit of the doubt to the claimant.”). And 

in other contexts Congress has set forth a rule of statutory 

interpretation. See, e.g., 21 U.S.C. § 853(o) (statute involving criminal forfeitures instructing that “[t]he provisions of 

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KISOR v. MCDONOUGH 17

proactively working to get veterans’ issues right—including by intervening when it believes courts and agencies get 

them wrong. This institutionalized system, therefore, suggests a less imperative need for our thumb on a scale that 

Congress continuously monitors and calibrates.14 

II. RESPONSES TO THE DISSENTS

I have several points of disagreement with the conceptions of the pro-veteran canon advanced by the dissenting 

opinions in this case. First, the dissenting opinions disregard the hierarchy of interpretive tools—in particular, the 

distinction between descriptive and normative canons. 

See, e.g., Panel Dissent at 3 (asserting that “the pro-veteran canon must be weighed alongside the other traditional tools” (emphasis added)); O’Malley Dissent at 18

(concluding that “the pro-veteran canon should be used 

alongside traditional tools” (emphasis added)). For example, Judge O’Malley faults the Majority for using “some, 

but not all, canons of construction” and asserts that the 

Majority did “not pretend to end its analysis with the language.” Id. at 19. But both of these concerns are addressed 

merely by recognizing that the interpretive tools the Majority applied were descriptive, rather than normative—

and therefore were just a part of the Majority’s analysis of 

the language. When these tools yielded a best meaning, 

this section shall be liberally construed to effectuate its remedial purposes”). But even in the latter situation, the 

Court has explained that such an instruction “only serves 

as an aid for resolving an ambiguity; it is not to be used to 

beget one.” Reves v. Ernst & Young, 507 U.S. 170, 184 

(1993) (cleaned up). Notably, Congress has issued no such 

instruction here. 

14 For further evidence on this point, see Judge 

O’Malley’s detailed history of Congress’s activity in veterans law, O’Malley Dissent at 8–10. 

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18 KISOR v. MCDONOUGH

there was no need to reach the normative pro-veteran 

canon. 

Second, placing the pro-veteran canon on par with descriptive canons departs from the Supreme Court’s textfirst rule, which is the basis for applying descriptive canons 

before normative canons like the pro-veteran canon. Indeed, although Judge Reyna acknowledges that the canon 

“cannot override plain text” and that “plain text defeats all 

other tools of construction,” Panel Dissent at 21 & 22 n.13

(collecting cases), he appears to accept only one textual constraint: that the text not “preclude[]” or “expressly exclude” 

the veteran’s interpretation. Id. at 22; see also O’Malley 

Dissent at 17 (“Where differing plausible, reasonable interpretations of the terms of a regulation are possible, Congress has spoken: it wants veterans’ benefits to be 

administered in a ‘pro-claimant’ manner.” (emphasis 

added)). So far as I can tell, this approach would permit a 

court to adopt a veteran-friendly interpretation so long as 

it is not expressly ruled out by the text—and even if it is 

less plausible than the textually derived best meaning of a 

provision. Because “most statutes are ambiguous to some 

degree” (at least, if the analysis stops short of a full evaluation of the context and focuses only on particular words in 

isolation), see Muscarello v. United States, 524 U.S. 125, 

138 (1998), the approach advocated by my dissenting colleagues would displace the more balanced determinations 

reflected in the statute as Congress chose to write it. 

Third, and for similar reasons, I disagree that we 

should consider the pro-veteran canon when determining 

“whether interpretative doubt exists.” Panel Dissent at 3. 

Presumably, that would mean that even if the text, context, 

and descriptive canons yield a best meaning, the pro-veteran canon could inject doubt as to whether that meaning 

is best—at which point the doubt would be resolved in the 

veteran’s favor. In short, the pro-veteran canon could 

trump the best meaning derived from the text. Again, this 

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KISOR v. MCDONOUGH 19

departs from the Supreme Court’s insistence that the text 

comes first. 

Fourth, the dissenting opinions would apply the canon 

as a liberal-construction principle (resembling the Boone

formulation). E.g., Panel Dissent at 24 (arguing that the 

“governing statutes and regulations should always be construed liberally within the bounds of their text”); O’Malley 

Dissent at 10 (arguing that Congress “wanted all aspects 

of the [Veterans’ Judicial Review Act] to be liberally construed in favor of the veterans”). And if the pro-veteran 

canon is simply a liberal-construction principle as my dissenting colleagues argue, this is further confirmation

that—for reasons already stated—it is best considered only

after a descriptive textual analysis does not yield a best 

meaning. See supra Part I.B.1. 

III. TENSION WITH CHEVRON AND AUER

Last, I recognize that the Supreme Court’s Chevron

and Auer frameworks present a difficult and unresolved 

challenge—as they in many cases will create tension with 

the pro-veteran canon. This tension arises because both

the pro-veteran canon and these deference doctrines are

triggered by ambiguity. For example, if the pro-veteran 

canon is used at step one of Chevron to resolve ambiguity

in a veteran’s favor, then step two of Chevron will never be 

reached.15 This raises the question of how to decide what 

gets triggered first. Although the Supreme Court has applied various canons at step one of Chevron—indicating 

that some canons are “traditional tools” of interpretation 

15 I note, however, that this tension arises only where 

the ambiguity at issue is in the textual meaning of a statute or regulation—not where a regulation simply fills a gap 

left by Congress for agency discretion. See Terry v. Principi, 340 F.3d 1378, 1383 (Fed. Cir. 2003) (deferring under 

Chevron to fill a gap instead of applying the canon). 

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20 KISOR v. MCDONOUGH

that belong at that step, Arangure, 911 F.3d at 339–40 (collecting cases), the Court did not attempt to address this difficulty in Brown or any other case involving the proveteran canon (including this one).16 Consequently, “[i]t is 

not clear where the Brown canon fits within the Chevron

framework, or whether it should be part of the Chevron

analysis at all.” Heino v. Shinseki, 683 F.3d 1372, 1379 n.8 

(Fed. Cir. 2012). 

Whether a canon applies before deferring to an agency 

likely depends on the character of the canon, measured 

against the rationales underpinning the Chevron and Auer

frameworks. See generally Arangure, 911 F.3d at 339–42. 

For example, there is “broad agreement” that canons which 

“clearly and exclusively serve descriptive, rather than normative, purposes . . . belong in step one” of Chevron—which 

“has the same goal: determining the meaning of the statute.” Id. at 340–41. Normative canons present harder issues. For normative canons triggered by ambiguity, the 

answer may depend on whether the ambiguity is of the 

type where Congress has delegated its resolution to the 

courts or an agency. See Barrett, supra, at 123 (explaining 

that the rule of lenity may be justified under the theory 

that a court’s “best understanding of Congress’s instructions is that Congress left the problem to her”). 

I do not attempt to resolve this quandary here as to the 

pro-veteran canon. Further guidance is necessary to reconcile these competing doctrines. But setting aside the 

question of which doctrine gets triggered by an ambiguous 

statute first, it’s worth reiterating the rigorous interpretive 

16 This difficulty is not limited to the pro-veteran 

canon. For example, while the D.C. Circuit has prioritized 

the Indian canon over Chevron step two, the Ninth Circuit 

has not. Compare Cobell v. Norton, 240 F.3d 1081, 1100–01 

(D.C. Cir. 2001), with Rancheria v. Jewell, 776 F.3d 706, 

713 (9th Cir. 2015). 

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KISOR v. MCDONOUGH 21

process that the Court has prescribed before finding ambiguity. On this point, the Court did not mince words in its 

recent pronouncement about the term “ambiguous”: “when 

we use that term, we mean it—genuinely ambiguous, even 

after a court has resorted to all the standard tools of interpretation.” Kisor, 139 S. Ct. at 2414. A court must “exhaust” these “traditional tools,” finding ambiguity “only 

when that legal toolkit is empty and the interpretive question still has no single right answer.” Id. at 2415. A court 

therefore “cannot wave the ambiguity flag just because it 

found the regulation impenetrable on first read.” Id. Rather, “hard interpretive conundrums, even relating to complex rules, can often be solved.” Id. Indeed, “[i]f a 

reviewing court employs all of the traditional tools of construction, the court will almost always reach a conclusion 

about the best interpretation of the regulation at issue.”

Id. at 2448 (Kavanaugh, J., concurring in the judgment). 

Then there is “no reason or basis to put a thumb on the 

scale,” whether in deference to an agency or in a veteran’s 

favor. See id.

CONCLUSION

The Supreme Court has said that we are not at liberty 

to merely assume that “any result consistent with . . . the 

statute’s overarching goal must be the law” as some versions of a liberal-construction principle assume. Henson, 

137 S. Ct. at 1725. We must “presume more modestly instead that the legislature says what it means and means 

what it says.” Id. (cleaned up). Undoubtedly the “entire 

[veterans-benefits] scheme is imbued with special beneficence from a grateful sovereign.” Bailey v. West, 160 F.3d 

1360, 1370 (Fed. Cir. 1998) (Michel, J., concurring); see also

Martin v. O’Rourke, 891 F.3d 1338, 1352 (Fed. Cir. 2018)

(Moore, J., concurring) (“The men and women in these 

cases protected this country and the freedoms we hold 

dear. . . .”). Our first order of business, however, and often 

our last, is to apply the properly understood words Congress chose for that scheme. It’s hard to see how fidelity to 

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22 KISOR v. MCDONOUGH

those words “rends the overarching fabric of protection woven by Congress.” Panel Dissent at 3. The words are the 

fabric. Consistent with the principles articulated above,

we should consider the pro-veteran canon only if, after exhausting all applicable descriptive tools in search of the 

provision’s best meaning, a range of plausible interpretations remains, none of them fairly described as the best. I 

concur in the denial of rehearing en banc.

Case: 16-1929 Document: 94 Page: 25 Filed: 04/30/2021
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.

______________________

HUGHES, Circuit Judge, with whom WALLACH, Circuit 

Judge, joins, concurring in the denial of rehearing en banc.

I concur in the denial of en banc rehearing. I also agree 

with much of what Chief Judge Prost has written and specifically join Part I.B–C and Part II of her opinion concurring in the denial of en banc rehearing. I write separately 

to note my further views and, particularly, my agreement 

with our court’s current precedent regarding the role of 

Chevron and Auer in interpreting veterans’ benefits statutes.

In the years following Chevron, Gardner, and Auer, this 

court has on numerous occasions decided appeals from denials of benefits in which the VA’s interpretation of a 

Case: 16-1929 Document: 94 Page: 26 Filed: 04/30/2021
2 KISOR v. MCDONOUGH

statutory or regulatory provision has been challenged by a 

veteran citing the pro-veteran canon. From these decisions, 

we have established a clear framework for interpreting 

statutory and regulatory provisions in the veterans’ benefits context where the VA argues that its interpretation is 

owed deference. That precedent is correct and does not 

warrant rehearing in any aspect.

The first step, as in all cases where Chevron deference 

is asserted, is to determine whether Congress has directly 

spoken to the precise question at issue. This court has done 

so by “first carefully investigat[ing] the matter to determine whether Congress’s purpose and intent on the question at issue is judicially ascertainable . . . by employing 

the traditional tools of statutory construction.” Boyer v. 

West, 210 F.3d 1351, 1355 (2000) (quoting Delverde, SrL v. 

United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000)). These

tools require “examin[ing] the statute’s text, structure, and 

legislative history and apply[ing] the relevant canons of interpretation.” Id. If we determine that the statute “plainly 

speaks to the issue,” that is the end of the analysis. Id.

at 1352. This court has consistently held that the pro-veteran canon does not apply at this juncture. Id. at 1355 (“A 

veteran ‘cannot rely upon the generous spirit that suffuses 

the law generally to override the clear meaning of a particular provision.’”) (quoting Smith v. Brown, 35 F.3d 1516, 

1526 (Fed. Cir. 1994)). Instead, we have repeatedly stated 

that we must first find a statutory provision ambiguous before there can be “interpretative doubt” to be resolved in 

the veteran’s favor. Nielson v. Shinseki, 607 F.3d 802, 

808 n.4 (Fed. Cir. 2010) (collecting cases). But even then, 

we have never looked first to the pro-veteran canon to resolve questions of ambiguity. 

Instead, once we have determined that the statute is 

silent on the issue or is genuinely ambiguous, we then determine whether the VA has promulgated a reasonable interpretation that is owed deference, typically (though not 

exclusively) in the form of a duly published regulation. We 

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KISOR v. MCDONOUGH 3

then apply the same methodology as explained above, employing all the “standard tools of interpretation,” Kisor v. 

Wilkie, 139 S.Ct. 2400, 2415 (2019), including “the text, 

structure, history, and purpose of a regulation,” id. at 2415,

in determining whether that regulation has a plain meaning or whether it is genuinely ambiguous. See also O’Bryan 

v. McDonald, 771 F.3d 1376, 1379 (Fed. Cir. 2014). If the 

regulation is plain and a reasonable interpretation of the 

ambiguous statute, then the VA is entitled to Chevron deference. Sears v. Principi, 349 F.3d 1326, 1330 (Fed. Cir. 

2003); Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 

1997).

If we cannot discern the plain meaning of the regulation, we proceed to determine whether the VA’s interpretation of its regulation is owed deference under Auer. As the 

Supreme Court explained in its decision remanding this 

case, an agency’s interpretation is owed deference under 

Auer only if it is reasonable, implicates the agency’s substantive expertise, and reflects the agency’s “fair and considered judgment” rather than merely a “convenient 

litigating position or post hoc rationalization.” Kisor, 

139 S.Ct. at 2417. If the VA’s interpretation satisfies each

of these prongs, then it is owed deference even over an alternative interpretation that is arguably more generous to 

veterans.1 

1 It is not clear—from either our precedent or the Supreme Court’s limited discussions of the pro-veteran 

canon—whether interpretative doubt is to be resolved in 

favor of the specific veteran before the court in a given appeal or in favor of veterans in general. To the extent that 

the pro-veteran canon contemplates the interests of the latter, the agency is in the better position vis-à-vis this court 

to determine how to interpret its regulations to favor veterans seeking or receiving benefits as a group.

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4 KISOR v. MCDONOUGH

We have previously, and correctly in my view, held that 

if the conditions for either Chevron or Auer deference are 

met, then the VA is entitled to deference, without resort to 

the pro-veteran canon. See, e.g., Smith v. Shinseki, 

647 F.3d 1380, 1385 (Fed. Cir. 2011); Smith v. Nicholson, 

451 F.3d 1344, 1349–51 (Fed. Cir. 2006); Sears, 349 F.3d 

at 1331–32. The Supreme Court’s decision in Kisor does not 

require alteration of this precedent, but simply clarifies the 

conditions for application of Auer.

If the VA’s interpretation fails to satisfy any of the requirements for deference, then the interpretative doubt in 

the statute or regulation has not been resolved by the 

agency and the pro-veteran canon requires that we resolve 

the ambiguity in favor of the veteran. See Hudgens v. 

McDonald, 823 F.3d 630, 639 (Fed. Cir. 2016). To hold that 

the pro-veteran canon applies at any earlier step in the

Chevron or Auer analysis is to hold that the VA, alone 

among the executive agencies, is not entitled to deference 

in interpreting its regulations and the statutes Congress 

has charged it with administering.2 This position would be 

anomalous to say the least and has been flatly rejected by 

this court. Sears, 349 F.3d at 1331–32; Nat’l Org. of Veterans Advocates, Inc., v. Sec’y of Veterans Affairs, 809 F.3d 

1359, 1363 (Fed. Cir. 2016).

2 The late Justice Scalia, in an address to the 12th 

CAVC Judicial Conference in 2013, suggested that Chevron 

and the pro-veteran canon are incompatible and opined 

that this court had correctly rejected the view that Chevron 

does not apply to the VA. Chadwick J. Harper, Give Veterans the Benefit of the Doubt: Chevron, Auer, and the Veteran’s Canon, 42 HARV. J.L. & PUB. POL’Y 950 n.128 (citing 

Ct. of Appeals for Veterans Claims Bar Assoc., Justice 

Scalia Headlines the Twelfth CAVC Judicial Conference, 

VETERANS L.J. 1, 1 (Summer 2013)).

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KISOR v. MCDONOUGH 5

Of course, most of these issues need not be resolved 

here. The panel majority concluded that the regulation at 

issue was clear and therefore there was no need to reach 

any questions of deference or the pro-veteran canon. I do 

not believe that regulation-specific determination warrants en banc rehearing and concur in the denial.

Case: 16-1929 Document: 94 Page: 30 Filed: 04/30/2021
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.

______________________

DYK, Circuit Judge, concurring in the denial of rehearing 

en banc.

The role of the veteran’s canon in statutory and regulatory interpretation is an important issue. If that issue 

were presented in this case, I would generally agree with 

Chief Judge Prost’s analysis. But, in my view, that canon 

simply is not relevant to the disposition of this case. Resolution of the interpretative issue here does not depend on 

the application of the veteran’s canon or other canons of 

construction, but on a plain reading of the language of the 

regulation. 

The regulation states that “if VA receives or associates 

with the claims file relevant official service department 

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2 KISOR v. MCDONOUGH

records that existed and had not been associated with the 

claims file when VA first decided the claim, VA will reconsider the claim.” 38 C.F.R. § 3.156(c)(1). The question is 

what constitutes “relevant” records. 

I

Here, there was an original rating decision in 1983 

denying benefits for post-traumatic stress disorder on the 

basis that the veteran was not diagnosed with PTSD. See

J.A. 22–23. There was a later decision in 2007, concluding 

that the veteran did have PTSD and granting benefits 

based in part on service department records received by the 

VA after the original 1983 decision because these records

verified an in-service stressor (an additional requirement 

for a PTSD award). See Majority Op. 6–7; J.A. 30–34; see 

also AZ v. Shinseki, 731 F.3d 1303, 1310 (Fed. Cir. 2013)

(listing elements for service connection for a PTSD claim).

An earlier effective date under 38 C.F.R. § 3.156(c) 

was denied on the grounds that the newly received service 

department records were not relevant. The Board and the 

Veterans Court concluded that “relevant” records are 

those relevant to the earlier decision’s basis for denying 

benefits, and here, the records were not relevant because 

they did not pertain to the basis of the 1983 denial of benefits, which was the lack of a PTSD diagnosis rather than 

the lack of a stressor. See J.A. 3–4, 90–91. 

The panel agrees that the term “relevant” for the purposes of 38 C.F.R. § 3.156(c)(1) should be interpreted consistently with 38 U.S.C. § 5103A, the statutory basis for the 

VA’s duty to assist. See Majority Op. 13; Dissenting Op. 8, 

10. Section 5103A provides that “[t]he [VA] shall make reasonable efforts to assist a claimant in obtaining evidence 

necessary to substantiate the claimant’s claim for a benefit 

under a law administered by the [VA].” 38 U.S.C. 

§ 5103A(a)(1) (emphasis added). As the panel majority appears to admit, “[r]elevant records for the purpose of 

§ 5103A are those records that relate to the injury for 

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KISOR v. MCDONOUGH 3

which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s 

claim.” Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 

2010) (emphasis added); see Majority Op. 13. In other 

words, relevant records are those that help in “substantiat[ing] the claimant’s claim for a benefit,” 38 U.S.C. 

§ 5103A(a)(1), not just those that “undermin[e]” some prior 

decision that denied that benefit, see Majority Op. 10. 

Short of an explicit statutory definition of “relevant,” it can 

hardly be clearer what “relevant” means.

Similarly, the language of 38 C.F.R. § 3.156(c) makes 

clear that relevant records are those relevant to the decision awarding compensation—not the prior decision. The 

regulation states that the earlier decision is set aside and 

an earlier effective date is granted if “[a]n award” is “made 

based all or in part” on “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 language of the regulation does not restrict the 

availability of an earlier effective date only to records that 

speak to the basis for the prior decision. If the agency intended such a restriction, the regulation could easily state 

that “[a]n award made based all or in part on records relevant to the ground of the prior decision” qualifies for an 

earlier effective date. Instead, the rule makes relevancy 

turn on whether the award was “made based all or in part” 

on the records. 38 C.F.R. § 3.156(c)(3). Thus, plain language leads to the rather obvious interpretation of the regulation—that it refers to records relevant to the service 

connection claim.

II

There is language in the panel opinion that appears to 

reject the correct interpretation of “relevant,” see, e.g., Majority Op. 12–13, but I read the panel opinion as taking a 

more nuanced view of what is relevant. The panel holds 

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4 KISOR v. MCDONOUGH

that service records are only not relevant if they relate to 

“a matter that was not in dispute” (i.e., conceded) in the 

earlier VA decision. Majority Op. 15.1 Here, the panel concluded that the issue to which the records relate (i.e., 

whether there was an in-service stressor) was not in dispute; hence, the records are not relevant. The dissent and 

majority appear to differ as to whether the stressor was in 

dispute, see id.; Dissenting Op. 16, and it may be that the 

majority is incorrect, but that is hardly a ground for en 

banc review. Nor does the majority’s view that records 

must relate to a disputed issue (based on the plain language of 38 C.F.R. § 3.156(c) that the award must be “based

all or in part on” the newly discovered records, see Majority

Op. 12–13), constitute a matter warranting en banc review. 

Service department records relevant to a claim for benefits 

will continue to provide grounds for reconsideration (and 

an earlier effective date) if they relate to a disputed claim 

element. The role of the veteran’s canon, not being a pertinent issue here, must await another day and another 

case.

1 The majority’s opinion states:

We therefore conclude that the Board did not err in 

holding that the records cited by Mr. Kisor were not 

“relevant” 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 Mr. 

Kisor has not shown that they bore, directly or indirectly, on any matter relating to entitlement to 

service connection for PTSD, other than a matter 

that was not in dispute: the presence of an in-service stressor. 

Majority Op. 15.

Case: 16-1929 Document: 94 Page: 34 Filed: 04/30/2021
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.

______________________

O’MALLEY, Circuit Judge, with whom NEWMAN, MOORE, 

and REYNA, Circuit Judges, join, dissenting from the denial 

of the petition for rehearing en banc.

This case returned to us after a trip to the Supreme 

Court. I am surprised that the panel majority does not believe the Supreme Court’s opinion compels judgment in Mr. 

Kisor’s favor. I am also surprised by the analytical hoops 

through which the panel majority has jumped to reinforce 

its decision to rule against the veteran. And that the majority went to such great lengths to do so despite the remedial context in which Mr. Kisor’s claim arose. 

Case: 16-1929 Document: 94 Page: 35 Filed: 04/30/2021
2 KISOR v. MCDONOUGH

The procedural history of this case is important to understanding how we have arrived at this point and why we 

need to retreat from it.

The veteran’s case turns on the meaning of the word 

relevant in 38 C.F.R. § 3.156(c)(1). If the term is given its

common and well-understood meaning, the veteran likely 

is entitled to an additional twenty-six years of benefits. If 

the term is given the contorted meaning now dictated by 

the majority, he decidedly is not.

The panel majority initially held that the word ‘‘relevant’’ in § 3.156(c)(1) is ambiguous. See Kisor v. Shulkin, 

869 F.3d 1360, 1367 (Fed. Cir. 2017) (“Kisor I”). In fact, it 

concluded it was insolubly so. The panel said that “[i]n our 

view, the regulation is vague as to the scope of the word,

and canons of construction do not reveal its meaning.” Id.

at 1367 (emphasis added). More specifically, it explained 

“§ 3.156(c)(1) does not specify whether ‘relevant’ records 

are those casting doubt on the agency’s prior rating decision, those relating to the veteran’s claim more broadly, or 

some other standard.” Id. It concluded that “[t]his uncertainty in application suggests that the regulation is ambiguous.” Id. The panel then emphasized that the parties’ 

“varying, alternative definitions” of the term “underscore[d] § 3.156(c)(1)’s ambiguity” because neither party’s 

position was unreasonable. Id. at 1367–68 (“Both parties 

insist that the plain regulatory language supports their 

case, and neither party’s position strikes us as unreasonable.”). 

Reasoning that the Board’s interpretation of the regulation was not “plainly erroneous or inconsistent” with the 

VA’s regulatory framework, the panel concluded that the 

only way to resolve the parties’ dispute was to rely on the 

principle of deference outlined in Auer v. Robbins, 519 U.S. 

452 (1997). Id. at 1369. It thus concluded that the judgemade policy of giving deference to an agency’s interpretation of its own regulations meant the insoluble interpretive 

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KISOR V. MCDONOUGH 3

tie with which it was faced went to the VA. The veteran 

lost.

Notably, before finding an ambiguity in the regulatory 

text and resorting to Auer, the panel did not consider the 

pro-veteran canon—the “rule that interpretive doubt is to 

be resolved in the veteran’s favor,” Brown v. Gardner, 513 

U.S. 115, 117–118 (1994); the “canon that the provisions 

for benefits to members of the armed services are to be construed in the beneficiaries’ favor,” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 441 (2011) (quoting King 

v. St. Vincent’s Hosp., 502 U.S. 215, 220–221, n.9 (1991)). 

Mr. Kisor sought rehearing en banc before our court, which 

we denied, over the objection of three of our judges. Kisor 

v. Shulkin, 880 F.3d 1378 (Fed. Cir. 2018). Mr. Kisor then 

sought certiorari, asking the Supreme Court to overrule 

Auer, or at least clarify that resort to Auer is inappropriate 

where the pro-veteran canon of construction could resolve 

the ambiguity in the veteran’s favor.

The Supreme Court granted cert on the first question. 

See Kisor v. Wilkie, 139 S. Ct. 657 (2018) (mem.). While the 

Supreme Court refused to do away with Auer, it dramatically circumscribed the circumstances in which a court may 

resort to it. Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) 

(“Kisor II”). Importantly, the Court explained that, before 

a regulation may be deemed “genuinely ambiguous” 

enough for Auer deference to come into play, “all the ‘traditional tools’ of construction” must be employed in assessing 

the regulation. Id. at 2415 (emphasis added). It explained 

that “only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge 

conclude that it is ‘more [one] of policy than of law.’” Id.

(quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 

696 (1991)). 

The case was then remanded. It would seem that the 

resolution on remand would have been easy. The panel 

originally found the regulation insolubly ambiguous 

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4 KISOR v. MCDONOUGH

without having considered the pro-veteran canon of construction. Applying that canon in this court’s “legal toolkit”

to a circumstance in which there were two reasonable constructions of the regulation, and without the option of Auer,

the result should have been that the veteran’s proposed 

construction prevailed. The veteran should have won.

Surprisingly, the majority instead concluded that the 

regulation is not ambiguous at all. Kisor v. Wilkie, 969 

F.3d 1333, 1338 (Fed. Cir. 2020) (“Kisor III”). According to 

the majority at that point, “relevant” “ha[d] only one reasonable meaning”—the one proffered by the VA. Id. at 

1338–1339 (“[T]he record must speak to a matter in issue, 

in other words, a matter in dispute.”). The majority never 

mentioned the “uncertainty in application” with which it 

had been concerned in Kisor I. It simply concluded that it 

no longer thought Mr. Kisor’s proposed definition struck it 

as reasonable because it said the service records did not 

speak “directly or indirectly” to his non-diagnosis of PTSD. 

Id. at 1340. The panel majority conceded that the new records contained substantial additional information regarding Mr. Kisor’s combat experiences during Operation 

Moon. Id. at 1341. Indeed, it conceded that the records 

contained “credible supporting evidence that the claimed 

stressor occurred.” Id. (citation omitted). But it still somehow found the records irrelevant. Id. The majority then 

concluded that, because it no longer found the regulation 

ambiguous, it did not need to consider the pro-veteran 

canon of construction. Id. at 1342. According to the majority, the pro-veteran canon “only applies in the situation 

where the statute or regulation at issue is ambiguous.”1

1 The Concurrence to denial of en banc by Chief 

Judge Prost (“Prost Concurrence”) questions whether the 

pro-veteran canon should apply during regulatory interpretation. Prost Concurrence at 3 n.2. But nothing about 

Case: 16-1929 Document: 94 Page: 38 Filed: 04/30/2021
KISOR V. MCDONOUGH 5

Id. (quoting Paralyzed Veterans of Am. v. Sec’y of Veterans 

Affs., 345 F.3d 1334, 1340 (Fed. Cir. 2003)). The veteran 

lost again.

Mr. Kisor again petitioned our court to rehear this case 

en banc. See Pet. for Reh’g En Banc, Kisor v. McDonough, 

No. 16-1929 (Fed. Cir. Sept. 28, 2020), ECF No. 76. In doing so, he had the support of several amici who, alongside 

him, contended that the pro-veteran canon of construction 

was an important interpretive canon that was to be employed at step one of the analysis set forth in Chevron, 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 

U.S. 837 (1984)—that is, to be applied along the way to determining whether a true ambiguity exists within the 

meaning of Kisor II. In response, the panel majority pulled 

Kisor III back. It has now issued a modified opinion with 

a third set of rationales for its ruling against the veteran. 

See Majority Modified Op. (“Kisor IV”). 

In its modified opinion, the panel majority now asserts 

that the pro-veteran canon of construction is not to be considered unless there is “interpretive doubt” in the panel’s 

mind after “use of ordinary textual analysis tools,” which it 

says do not include the pro-veteran canon. Id. at 16. And, 

the majority states that, using such tools, it finds that 

the regulatory context undermines the pro-veteran canon’s 

core justification—the special solicitude for those persons 

who “have been obliged to drop their own affairs to take up 

the burdens of the nation.” Boone v. Lightner, 319 U.S. 561, 

575 (1943). And “[i]t is axiomatic that an administrative 

agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. 

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). We 

have never differentiated between the interpretive exercise 

employed at the statutory level and that employed at the 

regulatory level. Neither has the Supreme Court. I see no 

reason why we should do so now. 

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6 KISOR v. MCDONOUGH

“relevant” records means records that are “relevant to the 

issue that was dispositive against the veteran in the VA 

adjudication of the claim sought to be reconsidered and, in 

that way, bear on the outcome of the case.” Id. at 9. The 

panel majority concludes once more that Mr. Kisor’s service 

records do not satisfy that definition of relevance. The veteran loses again.

Judge Reyna’s dissent from Kisor IV explains in detail 

why, on this record—where the examiner originally found 

the absence of PTSD in part due to skepticism about what

Mr. Kisor claimed about his in-service stressors—evidence 

of in combat and other substantial in-service stressors 

must certainly be relevant to his PTSD diagnosis. See Kisor IV Dissent Modified Op. at 15–20. PTSD is a differential diagnosis after all, that turns, in large measure, on the 

nature and existence of identified stressors. The majority’s 

effort to render in-service records of those stressors irrelevant because the denial of Mr. Kisor’s claim for benefits 

was premised on the absence of a diagnosis of PTSD and 

not on the absence of an in-service connection to his alleged 

disability is mental gymnastics. Where skepticism that 

stressors existed resulted in a non-diagnosis of PTSD, detailed records cataloging such stressors must certainly be 

“relevant” to that non-diagnosis, under any construction of 

that term. I defer to Judge Reyna’s thoughtful discussion 

of that factual point in his panel dissent.

I write separately to address (1) the panel majority’s 

dismissive treatment of the pro-veteran canon of construction and (2) emphasize that the panel’s tortured definition 

of “relevant” in § 3.156(c)(1) is out of step with all common 

understandings of that term and is unsupported by any 

meaningful text-based interpretive analysis. I believe the 

veteran should win this time.

I.

The pro-veteran canon of construction is not meant to 

be an afterthought. It is a tool in the interpretive toolkit 

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KISOR V. MCDONOUGH 7

that aids in gleaning congressional intent where the plain 

text of the statute or regulation does not clearly answer the 

question at hand.2 The pro-veteran canon has occupied a 

place in Supreme Court jurisprudence for almost eighty 

years. See, e.g., Boone v. Lightner, 319 U.S. 561, 575 (1943) 

(“The Soldiers’ and Sailors’ Civil Relief Act is always to be 

liberally construed to protect those who have been obliged 

to drop their own affairs to take up the burdens of the nation.”); see also Fishgold v. Sullivan Drydock & Repair 

Corp., 328 U.S. 275, 285 (1946) (“Our problem is to construe the separate provisions of the [Selective Service] Act 

as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits.”). 

It is against this common law backdrop that Congress 

passed the Veterans Judicial Review Act (“VJRA”). Veterans Judicial Review Act, Pub. L. No. 100–687, § 301, 102 

Stat. 4105, 4113–22 (1988) (codified as renumbered at 38 

U.S.C. §§ 7251–92); see King v. St. Vincent’s Hosp., 502 U.S. 

215, 221 n.9 (1991) (stating expressly that the Supreme 

Court presumes that Congress legislates with an understanding of the pro-veteran “interpretive principle[]”) (citing McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 

(1991) (“It is presumable that Congress legislates with 

knowledge of our basic rules of statutory construction. . . .”)); see also Lofton v. West, 198 F.3d 846, 850 (Fed. 

Cir. 1999) (“Congress legislates against a common law 

background . . . .”); Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (“[W]here a common-law 

principle is well established . . . the courts may take it as 

given that Congress has legislated with an expectation that 

2 “We’re all textualists now.” Harvard Law School, 

The Antonin Scalia Lecture Series: A Dialogue with Justice 

Elena Kagan on the Reading of Statutes, YOUTUBE (Nov. 

25, 2015) https://www.youtube.com/watch?v=dpEtszFT0Tg.

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8 KISOR v. MCDONOUGH

the principle will apply except ‘when a statutory purpose to 

the contrary is evident.’”) (citing Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)). 

Congress created the Veterans Administration (the 

agency that preceded the VA) in 1930, see Act of July 3, 

1930, Pub. L. No. 71-536, ch. 863, § 1, 46 Stat. 1016, and 

initially prohibited judicial review of the agency’s decisions 

concerning veterans’ benefits, see Act of Mar. 20, 1933, ch. 

3, § 5, 48 Stat. 9 (codified as amended at 38 U.S.C. § 211(a)

(1988)) (repealed 1988). The VA decisions concerning veterans’ benefits existed in a state of “splendid isolation”

from judicial review. Brown, 513 U.S. at 122 (citing H.R. 

Rep. No. 100–963, at 10 (1988), reprinted in 1988

U.S.C.C.A.N. 5782, 5791). Congress changed that in the 

VJRA, however, expanding the scope of judicial review concerning veterans’ benefits in two key aspects. Veterans Judicial Review Act, § 301. First, for veterans challenging 

their benefit awards, the VJRA established three levels of 

appeal: (1) the Court of Veterans Appeals (an Article I 

court the VJRA created), which has “exclusive jurisdiction 

to review decisions of the Board of Veterans’ Appeals,” 38 

U.S.C. § 7252(a); (2) our court, which has “exclusive jurisdiction to review and decide any challenge to the validity of 

any statute or regulation or any interpretation thereof” 

(such as the regulation at issue in this case, 38 

C.F.R. § 3.156(c)(1)), 38 U.S.C. § 7292(c); and (3) the Supreme Court, 38 U.S.C. § 7292(c). Second, for veterans dissatisfied with VA regulations and rules concerning 

veterans’ benefits, the VJRA allows for direct challenges to 

our court. See 38 U.S.C. § 502. Congress created this twostep opportunity for review “for the purpose of ensuring 

that veterans were treated fairly by the government and to 

see that all veterans entitled to benefits received 

them . . . .” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. 

Cir. 2006).

Congress also codified the VA Secretary’s duty to assist. Veterans’ Judicial Review Act, Pub. L. No. 100–687

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KISOR V. MCDONOUGH 9

§ 103, 102 Stat. 4106 (1988) (codified at 38 U.S.C. § 3007(a) 

(1988)) (“The Administrator shall assist such a claimant in 

developing the facts pertinent to the claim.”). Prior to the 

VJRA’s passage, Congress imposed no such statutory duty, 

and the Secretary’s obligation to assist veterans make out 

their benefit claims only existed to the extent granted by 

regulation. See, e.g., 38 C.F.R. §§ 3.102, 3.103 (1988). The 

codification of the Secretary’s “duty to assist” removed the 

VA’s ability to revise its regulations to strip veterans of this 

right or to receive Auer deference for any narrow interpretation of that right. These beneficent changes to provide 

greater remedial treatment to veterans in acknowledgement of their service to this country were just the beginning.

The VJRA is replete with provisions designed to make 

it easier for veterans to obtain benefits and to challenge 

denial of such benefits. The development of this veteranfriendly scheme and its remedial nature was the very raison d’être for passage of the VJRA. As we noted in Hodge 

v. West, “even in creating judicial review in the veterans 

context, Congress intended to preserve the historic, proclaimant system.” 155 F.3d 1356, 1363 (Fed. Cir. 1998). 

There, we cited the VJRA’s legislative history discussing 

Congress’s desire for the veterans’ benefits system to remain “pro-claimant”:

Each year, the Veterans’ Administration (VA) processes approximately 5 million claims. In most 

cases, claimants submit their own applications 

without assistance. If a claimant desires advice or 

other help, VA provides specially-trained personnel 

to answer inquiries and assist in the submission of 

the claim. VA’s medical facilities often serve as an 

important referral source, and the major veterans 

service organizations also furnish claims assistance by trained specialists at no charge.

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10 KISOR v. MCDONOUGH

Congress has designed and fully intends to maintain a beneficial non-adversarial system of veterans 

benefits. This is particularly true of service-connected disability compensation where the element 

of cause and effect has been totally by-passed in favor of a simple temporal relationship between the 

incurrence of the disability and the period of active 

duty.

I[m]plicit in such a beneficial system has been an 

evolution of a completely ex-parte system of adjudication in which Congress expects VA to fully and 

sympathetically develop the veteran's claim to its 

optimum before deciding it on the merits. Even 

then, VA is expected to resolve all issues by giving 

the claimant the benefit of any reasonable doubt. In 

such a beneficial structure there is no room for such 

adversarial concepts as cross examination, best evidence rule, hearsay evidence exclusion, or strict adherence to burden of proof.

H.R. Rep. No. 100–963, at 13 (1988), reprinted in 1988

U.S.C.C.A.N. 5782, 5794–95 (emphasis added). 

We need not guess the congressional intent behind the 

VJRA; Congress told us by legislating against the backdrop 

of the pro-veteran canon of construction, crafting a detailed 

remedial statutory scheme, and expressly affirming its beneficent purpose in the Act’s legislative history. It wanted 

all aspects of the Act to be liberally construed in favor of 

the veterans. 

Congress asked the VA to effectuate this intent by 

promulgating regulations designed to do so. The text of 

38 U.S.C. § 501 provides the VA Secretary with the “authority to prescribe all . . . regulations with respect to the 

nature and extent of proof and evidence and the method of 

taking and furnishing them in order to establish the right 

to benefits under such laws. . . .” 38 U.S.C. § 501(a)(1). Under this rulemaking authority, the VA Secretary 

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KISOR V. MCDONOUGH 11

promulgated 38 C.F.R. § 3.156, which generally allows a 

veteran to reopen a previously denied claim when “new and 

material evidence” surfaces. See 38 C.F.R. § 3.156(a). Section (c) of this regulation, at issue here, states an exception 

to this general rule by requiring the VA to reconsider a veteran’s previously denied claim when “relevant official service department records that existed and had not been 

associated with the claims file when VA first decided the 

claim” come to light, regardless of whether they are “new 

and material.” 38 C.F.R. § 3.156(c)(1) (noting that this section applies “notwithstanding paragraph (a)”). Thus, we 

are not only dealing with a remedial statute, we are dealing 

with a regulation designed to help right administrative 

wrongs. Our court has recognized that “courts are to construe remedial statutes liberally to effectuate their purposes.” Smith v. Brown, 35 F.3d 1516, 1525–26 (Fed. Cir. 

1994) (citing King v. St. Vincent’s Hosp., 502 U.S. 215, 221 

n.9 (1991) and Coffy v. Republic Steel Corp., 447 U.S. 191, 

196 (1980)), superseded on other grounds by 38 U.S.C. 

§ 7111. That includes remedial regulations.3 

The Supreme Court has commanded as much in multiple contexts. See, e.g., Socony-Vacuum Oil Co. v. Smith, 

3 The Prost Concurrence argues that the very fact 

that Congress has worked hard over the years to protect 

veterans is reason not to consider the pro-veteran canon of 

construction when considering a less than clear term in a 

statute or regulation. Prost Concurrence at 14. That cannot be right. Congress cannot anticipate every linguistic 

debate over the terms of a statute, and certainly cannot anticipate debates regarding the meaning of not-yet drafted 

regulations. It is because Congress drafts veterans legislation against the backdrop of the pro-veteran canon that 

Congress does not need to be clairvoyant in order to see 

that its intent to benefit veterans can be effectuated when 

parties have legitimate debates regarding terms employed. 

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12 KISOR v. MCDONOUGH

305 U.S. 424, 431 (1939) (“[R]emedial legislation for the 

benefit and protection of seamen has been liberally construed to attain that end.”); McDonald v. Thompson, 305 

U.S. 263, 266 (1938) (“[T]he [Motor Carrier] Act is remedial 

and to be construed liberally. . . .”); see also United States 

v. Merriam, 263 U.S. 179, 188 (1923) (“If the words are 

doubtful, the doubt must be resolved against the government and in favor of the taxpayer.”) (citing Gould v. Gould, 

245 U.S. 151, 153 (1917)); see also Bowers v. New York & 

Albany Lighterage Co., 273 U.S. 346, 350 (1927) (“The provision is a part of a taxing statute; and such laws are to be 

interpreted liberally in favor of the taxpayers.”); see also

United Dominion Indus., Inc. v. United States, 532 U.S. 

822, 839 (2001) (Thomas, J., concurring) (“At a bare minimum, in cases such as this one, in which the complex statutory and regulatory scheme lends itself to any number of 

interpretations, we should be inclined to rely on the traditional canon that construes revenue-raising laws against 

their drafter.”); see also Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 163, 166 (2012) (interpreting 

regulations implementing the Fair Labor Standards Act 

(“FLSA”) against the backdrop of the congressional intent 

behind FLSA—i.e., to protect low wage employees). 

Veterans deserve no less protection than low wage employees or taxpayers. See, e.g., United States v. Oregon, 366 

U.S. 643, 647 (1961) (“The solicitude of Congress for veterans is of long standing.”); Henderson, 562 U.S. at 440 (noting that Congress’s longstanding solicitude for veterans “is 

plainly reflected in the VJRA, as well as in subsequent laws 

that ‘place a thumb on the scale in the veteran’s favor in 

the course of administrative and judicial review of VA decisions.’”) (quoting United States v. Oregon, 366 U.S. at 

647); Shinseki v. Sanders, 556 U.S. 396, 412 (2009) (“[W]e 

recognize that Congress has expressed special solicitude 

for the veterans’ cause. . . . A veteran, after all, has performed an especially important service for the Nation, often at the risk of his or her own life. And Congress has 

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KISOR V. MCDONOUGH 13

made clear that the VA is not an ordinary agency. Rather, 

the VA has a statutory duty to help the veteran develop his 

or her benefits claim.”) (quoting Veterans Claims Assistance Act of 2000, 38 U.S.C. § 5103A). Despite all of this, 

and the apparent recognition that deferring consideration 

of the pro-veteran canon until after an ambiguity is found 

would be inconsistent with the Supreme Court’s directive 

in Kisor II to consider all canons of construction before finding an ambiguity, the panel majority charts a new course, 

with a familiar end. 

II.

The majority has again modified its reasoning concerning the application of the pro-veteran “interpretive principle[].” King, 502 U.S. at 221 n.9; see Kisor IV Majority 

Modified Op. As noted, the Kisor IV majority now reasons 

that the pro-veteran canon does not apply unless there is 

“interpretive doubt” after the “use of ordinary textual analysis tools,” which do not include the pro-veteran canon of 

construction. Id. at 16. I believe the majority’s conclusion 

in Kisor IV is just as problematic as its challenged conclusion in Kisor III, if not more so.

As a threshold matter, I believe the majority’s shift 

from relying on “ambiguity” in Kisor III to “interpretive 

doubt” in Kisor IV to avoid applying the pro-veteran canon 

is a distinction without a difference. There is no discernible 

daylight between these terms. See, e.g., Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Veterans Affs., 260 F.3d 1365, 

1378 (Fed. Cir. 2001) (“[W]hen a statute is ambiguous, interpretive doubt is to be resolved in the veteran’s favor.” 

(internal quotation omitted)); compare Doubt, v., OED

ONLINE, https://www.oed.com/view/Entry/57078 (last visited Apr. 14, 2021) (defining “doubt” as “[t]o be in doubt or 

uncertainty; to be wavering or undecided in opinion or belief”) with Ambiguity, n., OED ONLINE, 

https://www.oed.com/view/Entry/6144 (last visited Apr. 14, 

2021) (defining “ambiguity” as “originally and chiefly with 

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14 KISOR v. MCDONOUGH

reference to language: the fact or quality of having different 

possible meanings; capacity for being interpreted in more 

than one way; (also) lack of specificity or exactness”). The 

entire point of statutory construction is to interpret text 

and give effect to congressional intent. 

The majority cites nothing in support of its contention 

that “ordinary textual analysis tools” include only those 

narrowly subscribed by the majority. It cites only Brown 

v. Gardner for its decision to remove the pro-veteran 

canon—and apparently numerous other canons—from the 

interpretive toolkit it employs. But Brown does not hold 

that the pro-veteran canon is only an after the fact inquiry, 

or, as the Prost Concurrence asserts, must be relegated, 

like the rule of lenity, to “the end of the analysis.”4 Prost 

Concurrence at 12. Indeed, quite the contrary. The language in Brown from which the Kisor IV majority’s “interpretive doubt” language is plucked only refers to what the 

government “at most could claim” and appears just before 

4 Despite the Supreme Court’s opinion in this very 

case implying the opposite, the Concurrence by Judge 

Hughes (“Hughes Concurrence”) asserts that Chevron and 

Auer deference must still trump the pro-veteran canon. 

The Prost Concurrence holds open the same possibility. 

That is flatly inconsistent not only with Kisor II, but with 

the Supreme Court’s directive that Chevron and Auer do 

not even enter the picture until it is clear that the canons 

do not supply the answer. Epic Sys. Corp. v. Lewis, 138 S. 

Ct. 1612, 1630 (2018) (quoting NLRB v. Alt. Ent., Inc., 858 

F.3d 393, 417 (6th Cir. 2017), abrogated by Epic Sys. Corp., 

138 S. Ct. 1612). Quite simply, the “canons trump deference.” Kenneth A. Bamberger, Normative Canons in the 

Review of Administrative Policymaking, 118 Yale L.J. 64, 

77 (2008). Given the agency context in which the canon 

arises, relegating its consideration until after Chevron and 

Auer deference would render it a nullity.

Case: 16-1929 Document: 94 Page: 48 Filed: 04/30/2021
KISOR V. MCDONOUGH 15

the Court concludes that “the Government cannot plausibly make even this claim here.” Brown, 513 U.S., 117–118 

(emphasis added). In full, it reads,

The most, then, that the government could claim 

on the basis of this term is the existence of an ambiguity to be resolved in favor of a fault requirement (assuming that such a resolution would be 

possible after applying the rule that interpretive 

doubt is to be resolved in the veteran’s favor . . . .).

Id. (emphasis added). Nowhere does the Court hold what 

the panel claims it holds. It does not say that the parts of 

a “usual textual analysis”—other than the plain language 

of the words used—do anything other than help resolve “interpretive doubt.” And, it does not say that the pro-veteran 

canon is anything other than an interpretive canon. All 

Brown did was emphasize that the pro-veteran canon of 

construction is an additional tool in the “usual” tool kit 

when the statute or regulation being interpreted is embedded in a remedial statute whose congressional purpose is 

to benefit veterans.5 

5 The Prost Concurrence misreads Brown. It understands Brown to create a new necessary condition for applying the pro-veteran canon: interpretive doubt. That is, 

the pro-veteran “canon applies only when there is ‘interpretive doubt.’” Prost Concurrence at 6 (emphasis added)

(quoting Brown, 513 U.S. at 118). But Brown does not narrow the Supreme Court’s liberal interpretation rule. The 

Supreme Court made clear “interpretative doubt is to be 

resolved in the veteran’s favor.” Brown, 513 U.S. at 117–

118. Put simply, if there is interpretive doubt, then the 

veteran gets the benefit of that doubt. That is a sufficient 

condition for applying the pro-veteran canon. By mixing 

necessary and sufficient conditions, the Prost Concurrence 

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16 KISOR v. MCDONOUGH

Importantly, moreover, Brown did not overrule Boone 

and its progeny and create a new, more stingy, “Brown formulation” of the pro-veteran canon. Prost Concurrence at 

12. Indeed, in Brown, the Court cited to King, see Brown, 

513 U.S. at 118 (citing King, 502 U.S. at 220–221, n.9), 

which in turn cited to Fishgold, see King, 502 U.S. at 220–

221, n.9 (quoting Fishgold, 328 U.S. at 285), which, in turn, 

relied upon Boone, see Fishgold, 328 U.S. at 285 (quoting 

Boone, 319 U.S. at 575). And, in Henderson, which postdated Brown, the Supreme Court again cited to King. See 

Henderson, 562 U.S. at 441 (quoting King, 502 U.S. at 220–

221, n.9). If Brown changed the law, one would think the 

Supreme Court would acknowledge that fact rather than 

continue to rely on the line of cases relying on Boone. 

The panel majority’s latest approach is inconsistent 

with multiple Supreme Court cases which discuss the proveteran canon and treat it as one of the many canons of 

construction to be collectively employed when interpreting 

veterans benefit provisions. See, e.g., Henderson, 562 U.S. 

428; King, 502 U.S. 215. It is particularly important to include the pro-veteran canon in the interpretive mix when, 

not only is the entire statutory scheme at issue a beneficent 

one, but the particular provision at issue is intended to 

remedy administrative wrongs against veterans, as 

commits a classic fallacy. See, e.g., Wilson v. Horton’s Towing, 906 F.3d 773, 782 (9th Cir. 2018) (“Plaintiff’s argument 

commits the logical fallacy of mistaking a sufficient factor 

for a necessary one.”); Arar v. Ashcroft, 585 F.3d 559, 601 

(2d Cir. 2009) (“This appears to reflect a classic logical fallacy, ‘denial of the antecedent,’ which mistakes a necessary 

condition for a sufficient one.”); cf. N. Am. Philips Corp. v. 

Am. Vending Sales, Inc., 35 F.3d 1576, 1580 (Fed. Cir. 

1994) (“To suppose that a state must have a pecuniary interest in a matter . . . is to mistake a necessary for a sufficient condition for the assertion of personal jurisdiction.”).

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KISOR V. MCDONOUGH 17

§ 3.156(c)(1) does by relieving veterans of the finality of an 

adverse decision when records in the VA’s possession relating to that decision are located and could upend the denial 

of benefits. 

Once having started down the road of its interpretive 

exercise, the majority in Kisor IV was bound to include the 

pro-veteran canon of construction in its analysis and give 

effect to it along with other applicable canons of construction. See, e.g., Kisor II at 2415 (saying all canons get construed at step one). The question here is not so much 

whether the word “relevant” (as used in 

38 C.F.R. § 3.156(c)) could possibly have a restrictive 

meaning (as the Kisor IV majority appears to believe). Rather, when reviewing an agency’s interpretation of a statute or regulation (as is the case here), the Supreme Court 

has made clear that we are to apply all tools of statutory 

construction to glean congressional intent. Where differing 

plausible, reasonable interpretations of the terms of a regulation are possible, Congress has spoken: it wants veterans’ benefits to be administered in a “pro-claimant” 

manner. Congress’s explicit pro-veteran desire in the 

VJRA, as well as the remedial nature of 

38 C.F.R. § 3.156(c), lead me to conclude that the pro-veteran canon should be used alongside traditional tools of 

statutory construction in this case.6 Kisor IV’s failure to 

6 This does not mean that the veteran will always 

win when the canon is considered. It may well be that 

other more appropriate interpretive tools compel a different resolution of the question presented. See Lockhart v. 

United States, 136 S. Ct. 958, 963 (2016) (applying the rule 

of the last antecedent as a statutory canon of construction 

to avoid finding a criminal statutory term ambiguous, but 

noting that “[o]f course, as with any canon of statutory interpretation, the rule of the last antecedent ‘is not an 

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18 KISOR v. MCDONOUGH

recognize as much flies in the face of clearly expressed congressional intent.

To be sure, there are certain rules courts may apply 

when all efforts to figure out the meaning of a statute or 

regulation leave courts to “guess as to what Congress intended.” Abramski v. United States, 573 U.S. 169, 188 n.10 

(2014) (discussing rule of lenity) (quoting Maracich v. 

Spears, 133 S. Ct. 2191, 2209 (2013)). These are judgemade tie breakers implementing judicial policy choices, 

however. Auer is one such tie breaker, as is the canon of 

constitutional avoidance. These do not represent rules implementing congressional intent, however, they are rules 

courts fall back on when congressional intent cannot be ferreted out. The Prost Concurrence is wrong to equate the 

two.7 Here, as mentioned before, we know Congress’s 

absolute and can assuredly be overcome by other indicia of 

meaning’”) (citations omitted). In this case, there is no 

such interpretive tool compelling the result the panel majority reaches.

7 The Prost Concurrence is also wrong when it discusses the difference between “descriptive” and “normative” canons, characterizes the latter as less important, and 

then places the pro-veteran canon in the normative bucket, 

citing Arangure v. Whitaker, 911 F.3d 333, 346 (6th Cir. 

2018). Putting aside the fact that Arangure never mentions the pro-veteran canon, it also never explains whose 

“norms” it was discussing—Congress’s policy choices or the 

courts’ policy choices. And, Arangure expressly concludes 

that the Supreme Court has never created a hierarchy 

ranking the importance of canons of construction, has applied even what some classify as classic policy-based canons at step one of the Chevron analysis, has adopted a 

“canons first” approach to Chevron, and that “most canons” 

are “traditional tools of statutory construction” that apply 

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KISOR V. MCDONOUGH 19

intent from multiple indicators—including the text of the 

VJRA itself—and that intent provides the backdrop 

against which the interpretive inquiry in veterans’ benefit 

cases is to occur. See, e.g., Fishgold, 328 U.S. at 285 (“Our 

problem is to construe the separate provisions of the [Selective Service] Act as parts of an organic whole and give 

each as liberal a construction for the benefit of the veteran 

as a harmonious interplay of the separate provisions permits.”); see also King, 502 U.S. at 221 n.9 (“Even if the express examples [in other portions of the Act] unsettled the 

significance of subsection (d)’s drafting, however, we would 

ultimately read the provision in King’s favor under the 

canon that provisions for benefits to members of the Armed 

Services are to be construed in the beneficiaries’ favor.”) 

(citing Fishgold, 328 U.S. at 285).

This is why the majority’s cf. cite to Connecticut National Bank v. Germain, 503 U.S. 249, 253–54 (1992) is particularly unhelpful to its cause. See Kisor IV Majority 

Modified Op. at 16. That case stands for the proposition 

that, where a statute is clear on its face, the court is to assume that Congress intended what it clearly said. In other 

words, courts must assume that Congress expressed its intention and that no other “tools” are needed to assess congressional intent. True. Here, however, the majority does 

not pretend to end its analysis with the language of 

§ 3.156(c). It purports to use some, but not all, canons of 

construction to imbue a single word in the regulation with 

a thirty-nine word definition.8 That case is also unhelpful 

at step one. As the Supreme Court did in King, the proveteran canon is to be considered on the way to determining whether a genuine ambiguity within the meaning of 

Chevron exists. Characterizing the canon as “normative” 

does not change that fact.

8 As noted later, the panel majority does not even 

stay true to the canons on which it purports to rely.

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20 KISOR v. MCDONOUGH

to the panel majority’s cause because it was not decided in 

the context of a remedial scheme designed to benefit the 

class of claimants of which the appellant was a part.

A return to the Supreme Court’s decision in Christopher is instructive. Christopher involved the FLSA, whose 

legislative history indicated that Congress passed it with 

the goal, inter alia, of “protect[ing] all covered workers 

from substandard wages and oppressive working hours.” 

Christopher, 567 U.S. at 147 (citation omitted). Petitioners 

argued that their employers violated FLSA by failing to 

compensate them for overtime. The Department of Labor 

submitted an amicus brief to the Court arguing that the 

Department interpreted its own regulations to exclude Petitioners from FLSA’s overtime protections and asked the 

Court to defer to that conclusion under Auer. Relevant 

here, the Justices reasoned that to give deference to the 

Department would do damage to the remedial intent behind FLSA. It considered all tools of statutory interpretation with that remedial backdrop in mind. Thus, it did not 

relegate the remedial purpose of the scheme to an afterthought.9

9 The Prost Concurrence claims Christopher held 

that the remedial purpose canon was “inapposite because 

the Court was interpreting a general definition that applies 

throughout the FLSA.” Prost Concurrence at 11 (internal 

quotations omitted). But the Prost Concurrence conflates 

two interpretive canons. In a footnote, the Court discusses 

a rule of narrow construction: “exemptions to the FLSA 

must be ‘narrowly construed against the employers seeking 

to assert them. . . .’” 567 U.S. at 164 n.21 (quoting Arnold 

v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). Relegation of that narrow construction rule does not undermine 

the Court’s lengthy discussion of and reliance on the statute’s remedial purpose. Id. at 166–67. Most critically, 

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KISOR V. MCDONOUGH 21

I do not agree with the Prost Concurrence that the proveteran canon is a canon of last resort in the interpretive 

process, to be relegated to the end of the analysis. Nor do 

I believe Congress legislated with that mindset. After a 

tortured walk through the history of the pro-veterans 

canon, the Prost Concurrence concludes that whatever its 

form (a liberal construction principle or a narrower tiegoes-to-the-runner principle), it comes only at the end, if at 

all. The Prost Concurrence is clear that the pro-veteran 

canon applies only after other canons “yield[] competing 

plausible interpretations, none of which is fairly described 

as the best.” Prost Concurrence at 2. What the Prost Concurrence never tells us is—by what measure do we decide 

if one plausible interpretation is “the best.” Canons of construction “are an unruly team,” often “pulling in opposite 

directions.” Sullivan v. Freeman, 944 F.2d 334, 337 (7th 

Cir. 1991). Such is not unusual. But when the text yields 

competing plausible interpretations, all of the canons 

ought to be consulted and weighed in the analysis. 

Given the importance of the issue—the scope and applicability of a canon of construction—and the enormous 

impact of today’s determination that the pro-veteran canon 

is all but inapplicable to future cases, I dissent from the 

court’s refusal to take the issue en banc.

III.

Putting aside the pro-veteran canon and the role it 

should play in the inquiry before us, the actual interpretive 

exercise in which the panel now engages is flawed on multiple other levels. As the panel recognized in Kisor I, the 

plain language of 38 U.S.C. § 501 provides no clear indication that Congress intended for a “relevant” record as described in 38 C.F.R. § 3.156(c)(1) to “address a dispositive 

Christopher applied the remedial construction canon at 

Chevron step one.

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22 KISOR v. MCDONOUGH

issue and therefore . . . affect the outcome of the proceeding” as the VA Secretary and the Kisor IV majority now 

contend. Kisor IV Majority Modified Op. at 9. Nor does the 

legislative history behind 38 U.S.C. § 501(a) (or its statutory precursor, 38 U.S.C. § 210(c)), provide such an indication. See Pub. L. No. 85–857, § 210(c) 72 Stat. 1105, 1114 

(1958); see also Pub. L. No. 102–83, § 501(a) 105 Stat. 378, 

386 (1991). The majority also fails to apply the canon of 

imputed common law meaning, which states that “[w]here 

Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless 

the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” Neder 

v. U.S., 527 U.S. 1, 21 (1999) (quoting Nationwide Mut. Ins. 

Co. v. Darden, 503 U.S. 318, 322 (1992)). As Judge Reyna 

points out in his panel dissent, the majority’s strained definition of relevant in § 3.156(c)(1) is inconsistent with the 

way we have defined relevance in multiple other veteranrelated contexts. As he explains, it is inconsistent with how 

we have interpreted relevance in the context of

38 U.S.C. § 5103(A). See, e.g., Jones v. Wilkie, 918 F.3d 

922, 926 (Fed. Cir. 2019) (holding records need not “prove” 

claim to be relevant); McGee v. Peake, 511 F.3d 1352, 1357 

(Fed. Cir. 2008) (holding records need not be dispositive of 

claim to be relevant); Golz v. Shinseki, 590 F.3d 1317, 1321 

(Fed. Cir. 2010) (holding records need only relate to a claim 

and have a reasonable possibility of substantiating it). 

And, it is inconsistent with what we have said qualifies as 

“material” evidence, a directly comparable concept. See Kisor IV Dissent Modified Op. at 11–13. I commend the 

reader to those thoughtful discussions.

Beyond these inconsistencies, the definition the Kisor 

IV majority now crafts is also inconsistent with both common and legal usages of the term “relevant.” Rather than 

needing to be “relevant to an issue that was dispositive” as 

the Kisor IV majority asserts, see Kisor IV Majority Modified Op. at 9, the plain meaning of “relevant” simply 

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KISOR V. MCDONOUGH 23

indicates that something is “[b]earing on or connected with 

the matter in hand; closely relating to the subject or point 

at issue; pertinent to a specified thing,” Relevant, adj., 

OED ONLINE, https://www.oed.com/view/Entry/161893?redirectedFrom=relevant#eid (last visited Apr. 14, 2021). 

The Federal Rules of Evidence similarly provide an expansive definition of legal relevance. See Fed. R. Evid. 401 (defining evidence as relevant if “it has any tendency to make 

a fact more or less probable than it would be without the 

evidence; and the fact is of consequence in determining the 

action”). And, other circuits have recognized as much. See, 

e.g., United States v. Guerrero-Cortez, 110 F.3d 647, 652 

(8th Cir. 1997) (noting that “[t]he threshold of relevance [] 

is quite minimal”); United States v. Hamzeh, 986 F.3d 

1048, 1052 (7th Cir. 2021) (“Whether evidence is relevant 

is a low threshold.”); Bielunas v. F/V Misty Dawn, Inc., 621 

F.3d 72, 76 (1st Cir. 2010) (reasoning that “[a] relevancybased argument is usually a tough sell” given how broadly 

the Federal Rules of Evidence define relevance). 

In all of these ways, the Kisor IV majority ignores normal textual, contextual, and linguistic cues that point to an 

appropriate interpretive conclusion: Mr. Kisor is right that 

his detailed combat records are relevant to his service-related claim for benefits. The Kisor IV majority’s definition 

of “relevant” is a strained, Federal Circuit-specific definition that is not only out of step with common and legal usages of the term, but ignores the remedial context in which 

it appears.

It is an interpretation, moreover, that none of the concurring opinions even pretend to defend. The Prost and 

Hughes Concurrences are silent on the issue.10 And the

Concurrence by Judge Dyk (“Dyk Concurrence”) takes 

10 In this way, the Prost Concurrence is simply an interesting discussion of principles of construction untethered from the facts of this case.

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24 KISOR v. MCDONOUGH

direct issue with the majority’s interpretation, seeming to 

agree with the dissent’s broader interpretation:

As the panel majority appears to admit, “[r]elevant 

records for the purpose of § 5103A are those records 

that relate to the injury for which the claimant is 

seeking benefits and have a reasonable possibility 

of helping to substantiate the veteran’s claim.” Golz 

v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) 

(emphasis added)

Dyk Concurrence at 2–3 (citing Kisor IV Majority Modified 

Op. at 13) (emphasis in original). While the Dyk Concurrence says the panel got it wrong, it also says it is not an 

important enough error to fix via the en banc process. Id.

at 4. But, not fixing the error leaves intact a precedential 

interpretation of an important and oft-resorted to remedial 

regulation. It leaves intact a precedential decision effectively nullifying the pro-veteran canon of construction. 

And, it means that not only does the veteran lose here, he 

loses for reasons that the Dyk Concurrence concedes are 

wrong. We should not let any of that happen.

IV.

I must dissent from the denial of en banc once more in 

this matter. This is not a case of the panel majority repeatedly trying to get it right and finally doing so. It is not 

wisdom coming belatedly, but coming nonetheless. It is a 

circumstance where the panel majority ignores the remedial context in which it is operating and employs a 

strained, incorrect interpretive analysis to justify its ruling 

against this veteran. Because we have refused to hear this 

case en banc and make clear that the pro-veteran canon 

trumps Chevron and Auer, I hope the Supreme Court will 

be willing to grant certiorari once more, and that the veteran will finally win.

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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.

______________________

REYNA, Circuit Judge, with whom NEWMAN, MOORE, and 

O’MALLEY, Circuit Judges, join, dissenting from the denial 

of rehearing en banc.

I dissent from the court’s denial of appellant’s petition 

for en banc review. As basis, I rely on my dissent to the 

underlying majority opinion, which I adopt and incorporate

in this dissent. I make the following comments to cast further light on the importance of the pro-veteran canon of interpretation. 

The majority opinion has created a new rule of law and 

uses it to reach a decision that will adversely impact thousands of veterans’ claims for service-connected disability 

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2 KISOR v. MCDONOUGH

benefits. The majority holds that the pro-veteran canon

only applies where “interpretive doubt” remains after all 

other tools of statutory construction fail to resolve ambiguities. This means that the pro-veteran canon comes into 

play at the bottom of the ninth inning, after three outs have 

been made, and as the players head to their respective dugouts. But by then, it’s game over.

The veterans disability statutes are remedial, and disability benefits provisions are benevolent in nature. Dissent Modified Op. at 3. Congress plainly intended that 

when an ambiguity arises in the interpretation of a provision pertaining to the award of disability benefits, resolution should tilt in favor of the veteran.1 There is no 

distinction between ambiguity and interpretive doubt.

In sum, this case precisely illustrates the error inherent in this court’s new “interpretive doubt” rule. First, the 

majority determined that there exists ambiguity in the

meaning of the “relevant records” provision. Next, it considered arguments favorable to the VA’s interpretation of 

“relevant records.” Then, it applied some canons of statutory construction to reach a decision that was not favorable 

to veterans. Last, it determined that since it arrived at a 

construction, it no longer had “interpretive doubt,” so the 

pro-veteran canon did not apply. Dissent Modified Op. at 

21 (citing Majority Modified Op. at 16). Here, the majority 

utilized every single canon in its armory to find the provision unambiguous and avoid resorting to the pro-veteran 

1 See Henderson v. Shinseki, 562 U.S. 428, 439

(2011) (“The solicitude of Congress for veterans is of long 

standing. And that solicitude is plainly reflected in the 

VJRA, as well as in subsequent laws that place a thumb on 

the scale in the veteran's favor in the course of administrative and judicial review of VA decisions.”) (internal quotation marks and citations omitted).

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KISOR V. MCDONOUGH 3

canon. As a result, the pro-veteran canon was left out of 

the traditional interpretive toolkit altogether.

For these reasons, and those stated in my dissent to the 

majority opinion, I dissent to the denial of appellant’s petition for en banc review. 

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