September 03, 2020

A Troubling Standard Set Forth in Kisor v. Wilkie

On August 12, The U.S. Court of Appeals for the Federal Circuit released its decision in Kisor v. Wilkie. Kisor addressed the meaning of the term “relevant” in the context of 38 C.F.R. § 3.156(c)(1), which provides that the Department of Veterans Affairs (“VA”) will reconsider a claim after a final decision if it receives “relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” The regulation further provides that an award based all or in part on such “relevant” records will have an effective date all the way back to the date the entitlement arose or the date VA received the previously decided claim, whichever is later.  The Court concluded that in order to be “relevant,” a record must speak to a matter in issue, in other words, a matter in dispute.” The decision in Kisor to equate “relevancy” with “materiality” will potentially have a game-changing impact on the Veterans Appeals Modernization Act of 2017 (AMA). The AMA replaced the "new and material evidence" standard for reopening a closed disability claim with the “new and relevant evidence” standard. It was generally thought that the “new and relevant” standard was lower than the old “new and material” test. Under Kisor, veterans will have to provide evidence that directly addresses a matter in dispute, i.e. material evidence, in order to have a previously closed claim reopened by VA.