Ortiz v. McDonough

Case: 20-1911 Document: 34 Page: 1 Filed: 07/28/2021

United States Court of Appeals
for the Federal Circuit
______________________

GERALDO P. ORTIZ,
Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2020-1911
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-70, Judge Michael P. Allen.
______________________

Decided: July 28, 2021
______________________

KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.

ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.
______________________

Before NEWMAN, TARANTO, and CHEN, Circuit Judges.
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2 ORTIZ v. MCDONOUGH

TARANTO, Circuit Judge.
The Department of Veterans Affairs (VA) awarded vet-
eran Geraldo Ortiz benefits for a service-connected disabil-
ity based on posttraumatic stress disorder (PTSD), acting
pursuant to a regulatory change that lightened his previ-
ous evidentiary burden. The dispute before us concerns the
starting date for the benefits awarded, i.e., the effective
date of the award. We conclude that the regulatory change
that enabled Mr. Ortiz to obtain the benefits was a “liber-
alizing” one, entitling Mr. Ortiz to the earlier effective date,
and hence the larger award, that he seeks.
Mr. Ortiz had first claimed service-connected disability
benefits based on PTSD, under 38 U.S.C. § 1110, in 1997.
But VA denied the claim because Mr. Ortiz did not provide
corroborating evidence, as required by the PTSD regula-
tion, 38 C.F.R. § 3.304(f), that the events identified as lead-
ing to his PTSD occurred in his military service. That
decision became final. Years later, in 2010, the Secretary
of Veterans Affairs amended § 3.304(f) by adding what is
now subsection (f)(3) to state an exception to the corrobo-
rating-evidence requirement in circumstances like those of
Mr. Ortiz. On May 22, 2012, more than a year after the
regulatory change took effect, Mr. Ortiz moved to reopen
his claim, invoking the newly lightened proof requirement.
Within months, VA reopened his claim and granted the
claim, rating him 100 percent disabled and making the
benefits effective as of May 22, 2012, the date VA received
the request to reopen.
Mr. Ortiz contended that the effective date should have
been one year earlier (May 22, 2011). For that contention,
he relied on 38 C.F.R. § 3.114(a), which implements 38
U.S.C. § 5110(g) and provides that when compensation “is
awarded or increased pursuant to a liberalizing law, or a
liberalizing VA issue approved by the Secretary or by the
Secretary’s direction” and the “claim [for compensation] is
reviewed at the request of the claimant more than 1 year
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ORTIZ v. MCDONOUGH 3

after the effective date of the law or VA issue,” the effective
date is “1 year prior to the date of receipt of such request.”
38 C.F.R. § 3.114(a)(3). Mr. Ortiz argued that § 3.304(f)(3)
was a “liberalizing” law or VA issue, entitling him to the
extra year of benefits. The Board of Veterans’ Appeals and
then the Court of Appeals for Veterans Claims (Veterans
Court) rejected his request for an earlier effective date.
While accepting that Mr. Ortiz’s claim was granted “pursu-
ant to” § 3.304(f)(3), they concluded that § 3.304(f)(3) was
not a “liberalizing” measure.
We reverse. We conclude that the addition of
§ 3.304(f)(3) in 2010 was “liberalizing” under § 3.114(a). It
is sufficient to come within § 3.114(a)’s “liberalizing” cate-
gory that § 3.304(f)(3) reduced a veteran’s affirmative bur-
den of production to establish an element of entitlement to
compensation. In these circumstances, the correct effective
date for Mr. Ortiz’s benefits is May 22, 2011, rather than
May 22, 2012. 1
I
A
The precedents that the parties principally debate are
Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994), and Routen
v. West, 142 F.3d 1434 (Fed. Cir. 1998). In those decisions,
this court did not directly interpret and apply the effective-
date “liberalizing” regulation at issue here, 38 C.F.R.
§ 3.114(a), to answer an effective-date question, as no such
question was presented. Rather, the court relied on 38
U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a) to draw an infer-
ence about a circumstance in which a new original claim is
not barred by the otherwise-governing statutory finality

1 Unless noted otherwise, all citations are to provi-
sions as they existed before the Veterans Appeals Improve-
ment and Modernization Act of 2017, Pub. L. No. 115–55,
131 Stat. 1105, and the regulations implementing that Act.
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4 ORTIZ v. MCDONOUGH

protections that attach to rejection of an earlier claim. It
is useful, therefore, to begin with a summary of the statu-
tory and regulatory provisions that provide a general rule
of finality for claim-rejecting VA decisions but allow for ex-
ceptions, including the exception recognized in Spencer and
Routen.
Statutes and regulations governing veterans benefits
expressly state general rules of finality for VA decisions.
That is so for a decision by a VA regional office (or agency
of original jurisdiction) unless timely appealed to the
Board. See 38 U.S.C. § 7105(c) (“If no notice of disagree-
ment is filed in accordance with this chapter within the
prescribed period, the action or determination shall become
final and the claim will not thereafter be reopened or al-
lowed, except as may otherwise be provided by regulations
not inconsistent with this title.”); 38 C.F.R. §§ 20.1104,
3.104(a), 3.2600. And it is also so for a Board decision un-
less timely appealed to the Veterans Court. See 38 U.S.C.
§ 7104(b) (“Except as provided in section 5108 of this title,
when a claim is disallowed by the Board, the claim may not
thereafter be reopened and allowed and a claim based upon
the same factual basis may not be considered.”); 38 C.F.R.
§ 20.1100.
As the above-quoted statutes make clear, however, ex-
ceptions are authorized. One exception, not invoked in the
present case, is for “clear and unmistakable error” in the
original decision. 38 U.S.C. §§ 5109A(a), 7111; see also 38
C.F.R. § 20.1400. A decision reversing or revising the ear-
lier decision on that basis “has the same effect as if the de-
cision had been made on the date of the prior decision,” 38
U.S.C. §§ 5109A, 7111, so the effective date of an award of
benefits previously “denied due to clear and unmistakable
error” is as early as “the veteran’s filing of the original
claim,” Sears v. Principi, 349 F.3d 1326, 1331 (Fed. Cir.
2003); see also 38 C.F.R. § 3.400(k). A second exception,
which was invoked in the present case, is for “reopening”
based on “new and material evidence.” 38 U.S.C. § 5108;
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ORTIZ v. MCDONOUGH 5

38 C.F.R. § 3.156(a). 2 In general, the earliest effective date
for an award on a reopened claim is the date of the request
for reopening, not the date of the original claim. See Sears,
349 F.3d at 1331; 38 C.F.R. § 3.400(q)–(r). 3
This court concluded in Spencer that, in Routen’s
words, there is also a “third” path around an otherwise-fi-
nal claim rejection—namely, a new original claim—if cer-
tain statutory or agency-adopted changes have been made
since the earlier rejection. Routen, 142 F.3d at 1438, 1442.
The court in Spencer quoted with approval the Veterans
Court’s reasoning:
When a provision of law or regulation creates a new
basis of entitlement to benefits, as through liberal-
ization of the requirements for entitlement to a
benefit, an applicant’s claim of entitlement under
such law or regulation is a claim separate and dis-
tinct from a claim previously and finally denied

2 Section 5108 now is titled “Supplemental claims,”
uses the term “readjudicate” rather than “reopen,” and re-
quires “new and relevant” instead of “new and material” ev-
idence. 38 U.S.C. § 5108(a) (“In General.—If new and
relevant evidence is presented or secured with respect to a
supplemental claim, the Secretary shall readjudicate the
claim taking into consideration all of the evidence of rec-
ord.”); see also 38 C.F.R. § 3.156(a) (implementing § 5108).
3 A regulation provides for different effective-date
treatment in defined circumstances when a claim is reo-
pened and reconsidered based on “relevant official service
department records that existed and had not been associ-
ated with the claims file when VA first decided the claim.”
38 C.F.R. § 3.156(c)(1). In that situation, an award may
have an effective date as early as “the date VA received the
previously decided claim.” Id. § 3.156(c)(3); see also Blub-
augh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014);
Loyd v. Shulkin, 682 F. App’x 906, 909 (Fed. Cir. 2017).
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6 ORTIZ v. MCDONOUGH

prior to the liberalizing law or regulation. The ap-
plicant’s later claim, asserting rights which did not
exist at the time of the prior claim, is necessarily a
different claim.
Spencer, 17 F.3d at 372 (quoting Spencer v. Brown, 4 Vet.
App. 283, 288–89 (1993) (Spencer CAVC); alteration and
internal quotation marks omitted). This court agreed with
the Veterans Court that the finality protection of § 7104(b)
“‘does not preclude de novo adjudication of a claim, on es-
sentially the same facts as a previously and finally denied
claim, where an intervening and substantive change in law
or regulation created a new basis for entitlement to a ben-
efit.’” Id. (quoting Spencer CAVC, 4 Vet. App. at 289).
In ruling that the statute allows a new original claim
based on certain changes of law, notwithstanding the oth-
erwise-prescribed finality of an earlier claim’s rejection,
this court and the Veterans Court in Spencer, as well as
this court in Routen, relied on what they found to be a nec-
essary implication of a statutory effective-date provision,
38 U.S.C. § 5110(g), implemented by 38 C.F.R. § 3.114(a).
Routen, 142 F.3d at 1441 (relying on statute and regula-
tion); Spencer, 17 F.3d at 371 (relying on statute); Spencer
CAVC, 4 Vet. App. at 287–89 (relying on statute and regu-
lation). The decisions in those cases do not directly apply
those provisions, which merely prescribe an effective date
for certain awards of compensation; there was no effective-
date issue in those cases because there were no awards in
those cases at all. Rather, the courts in those cases dis-
cerned in the effective-date statute (and regulation) an im-
plied presupposition that a new original claim must
sometimes be available, modifying the otherwise-applica-
ble statutory (and regulatory) guarantees of finality of an
earlier decision. The court in Routen itself stressed that
very difference—between direct application of the effective-
date provisions (which was not at issue) and the scope of
an implied statutory modification to allow a new original
claim (which was). See 142 F.3d at 1441.
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ORTIZ v. MCDONOUGH 7

B
Unlike Spencer and Routen, the present case involves
an effective-date question requiring direct application of
the regulation adopted to implement the statute.
Section 5110(g), one of the subsections of the statutory
provision titled “Effective dates of awards,” dates back to
1962. Addressing a change-of-law situation, it provides
that, “[s]ubject to the provisions of section 5101” (concern-
ing “claims and forms”),
where compensation . . . is awarded or increased
pursuant to any Act or administrative issue, the ef-
fective date of such award or increase shall be fixed
in accordance with the facts found but shall not be
earlier than the effective date of the Act or admin-
istrative issue. In no event shall such award or in-
crease be retroactive for more than one year from
the date of application therefor or the date of ad-
ministrative determination of entitlement, which-
ever is earlier.
38 U.S.C. § 5110(g). The language is not limited to recon-
sideration of a claim, but reaches an original claim. And it
applies not just where “compensation . . . is awarded”
(where no compensation had previously been awarded) but
also where “compensation . . . is . . . increased” (where, for
example, a rating is increased).
A regulation, also dating back to 1962, implements that
statutory subsection. Under 38 C.F.R. § 3.114, titled
“Change of law or Department of Veterans Affairs issue,”
subsection (a) provides:
(a) Effective date of award. Where . . . compensa-
tion . . . is awarded or increased pursuant to a lib-
eralizing law, or a liberalizing VA issue approved
by the Secretary or by the Secretary’s direction, the
effective date of such award or increase shall be
fixed in accordance with the facts found, but shall
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8 ORTIZ v. MCDONOUGH

not be earlier than the effective date of the act or
administrative issue. Where . . . compensation . . .
is awarded or increased pursuant to a liberalizing
law or VA issue which became effective on or after
the date of its enactment or issuance, in order for a
claimant to be eligible for a retroactive payment
under the provisions of this paragraph the evidence
must show that the claimant met all eligibility cri-
teria for the liberalized benefit on the effective date
of the liberalizing law or VA issue and that such
eligibility existed continuously from that date to
the date of claim or administrative determination
of entitlement. The provisions of this paragraph
are applicable to original and reopened claims as
well as claims for increase.
(1) If a claim is reviewed on the initiative of
VA within 1 year from the effective date of
the law or VA issue, or at the request of a
claimant received within 1 year from that
date, benefits may be authorized from the
effective date of the law or VA issue.
(2) If a claim is reviewed on the initiative of
VA more than 1 year after the effective date
of the law or VA issue, benefits may be au-
thorized for a period of 1 year prior to the
date of administrative determination of en-
titlement.
(3) If a claim is reviewed at the request of
the claimant more than 1 year after the ef-
fective date of the law or VA issue, benefits
may be authorized for a period of 1 year
prior to the date of receipt of such request.
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ORTIZ v. MCDONOUGH 9

38 C.F.R. § 3.114(a). The regulation expressly applies to
“original and reopened claims as well as claims for in-
crease.” Id. 4
There is dispute about what the consequences are for
the effective date of an award when, on a claim that has
been reopened, the award is made “pursuant to” a “liberal-
izing” change. In that situation, the award’s effective date
may not be earlier than the effective date of the underlying
change, but it may be as early as one year before the re-
quest based on the change was made. See McCay v. Brown,
106 F.3d 1577, 1581 (Fed. Cir. 1997). The issue in this case
is whether § 3.114(a) applies to a particular regulatory
change.
C
Mr. Ortiz served during the Vietnam era, a “period of
war,” 38 C.F.R. § 3.2(f), within the meaning of 38 U.S.C.
§ 1110, which provides for compensation for service-con-
nected disability—specifically, “[f]or disability resulting
from personal injury suffered or disease contracted in line
of duty, or for aggravation of a preexisting injury suffered
or disease contracted in line of duty, in the active military,
naval, or air service, during a period of war”—subject to
exceptions that do not apply here. It is undisputed before
us that, having earlier denied Mr. Ortiz’s claim for disabil-
ity benefits based on PTSD, VA reopened Mr. Ortiz’s claim
for such benefits and granted the claim in 2012 and that
VA did so pursuant to the 2010 addition of what is now
subsection (f)(3) to 38 C.F.R. § 3.304. There is no dispute
about the propriety of the reopening or the grant. The only
question presented concerns the proper effective date un-
der 38 C.F.R. § 3.114(a), and the only issue in dispute about

4 Amended to implement the statutory changes from
the Modernization Act, the regulation now reads “original
and supplemental claims as well as claims for increase.”
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10 ORTIZ v. MCDONOUGH

the applicability of § 3.114(a) is whether the 2010 adoption
of what is now § 3.304(f)(3) was a “liberalizing” change un-
der § 3.114(a). The proper resolution depends on the regu-
lations governing PTSD-based claims for service-connected
disability benefits under 38 U.S.C. § 1110.
To secure benefits under § 1110 (or under § 1131,
which governs peacetime service), a veteran generally
must “satisfy a three-element test: (1) the existence of a
present disability; (2) in-service incurrence or aggravation
of a disease or injury; and (3) a causal relationship between
the present disability and the disease or injury incurred or
aggravated during service—the so-called ‘nexus’ require-
ment.” Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir.
2013). Congress prescribed in 38 U.S.C. § 1154(a) that the
Secretary must provide, in regulations governing service
connection, for consideration of various facts and types of
evidence. For “any veteran who engaged in combat with
the enemy in active service,” Congress added, in § 1154(b),
that “the Secretary shall accept as sufficient proof of ser-
vice-connection . . . satisfactory lay or other evidence of ser-
vice incurrence or aggravation of such injury or disease, if
consistent with the circumstances, conditions, or hardships
of such service . . . . Service-connection of such injury or
disease may be rebutted by clear and convincing evidence
to the contrary.”
Exercising his rulemaking authority under 38 U.S.C.
§ 501(a), the Secretary in 1993 promulgated 38 C.F.R.
§ 3.304(f) to implement 38 U.S.C. § 1154 for claims based
on PTSD. Direct Service Connection (Post-traumatic
Stress Disorder), 58 Fed. Reg. 29,109 (May 19, 1993); see
also Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veter-
ans Affairs, 669 F.3d 1340, 1343 (Fed. Cir. 2012) (NOVA)
(“The Secretary has the authority to issue regulations
which establish the requirements for veterans to qualify for
service-connected PTSD injuries.”). At the time of Mr.
Ortiz’s first filing for PTSD-based benefits in 1997,
§ 3.304(f) generally provided that a grant of benefits based
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ORTIZ v. MCDONOUGH 11

on “post-traumatic stress disorder requires medical evi-
dence establishing a clear diagnosis of the condition, credi-
ble supporting evidence that the claimed inservice stressor
actually occurred, and a link, established by medical evi-
dence, between current symptomatology and the claimed
inservice stressor.” 38 C.F.R. § 3.304(f) (1997) (emphasis
added). 5
Over time, VA promulgated exceptions to the general
requirements. After Mr. Ortiz’s original claim was finally
decided, but a couple of years before Mr. Ortiz moved to
reopen his claim, the Secretary further implemented 38
U.S.C. § 1154 and promulgated an additional exception—
what is now 38 C.F.R. § 3.304(f)(3)—to the general require-
ments for a claim of entitlement based on PTSD. See
Stressor Determinations for Posttraumatic Stress Disor-
der, 74 Fed. Reg. 42,617 (Aug. 24, 2009) (Proposed Rule);
75 Fed. Reg. 39,843 (July 13, 2010) (Final Rule). The effec-
tive date of the new subsection (f)(3) was July 12, 2010. Fi-
nal Rule, 75 Fed. Reg. at 39,843. Subsection (f)(3) provides
in relevant part:

5 In 1999, VA amended the regulation by reordering
the three requirements and clarifying the “type of medical
evidence required to establish service connection,” but VA
maintained the corroboration requirement. Direct Service
Connection (Post-Traumatic Stress Disorder), 64 Fed. Reg.
32,807, 32,807 (June 18, 1999). The amended § 3.304(f)
stated: “Service connection for post-traumatic stress disor-
der requires medical evidence diagnosing the condition in
accordance with [38 C.F.R.] § 4.125(a) of this chapter; a
link, established by medical evidence, between current
symptoms and an in-service stressor; and credible support-
ing evidence that the claimed in-service stressor occurred.”
38 C.F.R. § 3.304(f) (1999) (emphasis added); see also
NOVA, 669 F.3d at 1343; AZ v. Shinseki, 731 F.3d 1303,
1310 (Fed. Cir. 2013).
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12 ORTIZ v. MCDONOUGH

If a stressor claimed by a veteran is related to the
veteran’s fear of hostile military or terrorist activ-
ity and a VA psychiatrist or psychologist, or a psy-
chiatrist or psychologist with whom VA has
contracted, confirms that the claimed stressor is
adequate to support a diagnosis of posttraumatic
stress disorder and that the veteran’s symptoms
are related to the claimed stressor, in the absence
of clear and convincing evidence to the contrary,
and provided the claimed stressor is consistent
with the places, types, and circumstances of the
veteran’s service, the veteran’s lay testimony alone
may establish the occurrence of the claimed in-ser-
vice stressor. . . .
38 C.F.R. § 3.304(f)(3) (emphasis added). 6
As we have explained, § 3.304(f)(3) “grants veterans a
special exception to th[e] normal evidentiary burden by
permitting them to rely on their lay testimony alone with-
out corroborating evidence to prove that their claimed in-
service PTSD stressor occurred.” Hall v. Shinseki, 717
F.3d 1369, 1371 (Fed. Cir. 2013); see also NOVA, 669 F.3d
at 1343–44 (“VA proposed a rule on August 24, 2009, cre-
ating an additional situation where a veteran could estab-
lish PTSD service-connection without supporting evidence
regarding the claimed in-service stressor.”). This exception
to the normal corroborating-evidence requirement applies
“if three [pre]conditions are satisfied: (1) a VA psychiatrist
or psychologist ‘confirms that the claimed stressor is ade-
quate to support a diagnosis of post-traumatic stress disor-
der and that the veteran’s symptoms are related to the

6 Before the 2010 amendment, 38 C.F.R. § 3.304(f)
had four exceptions enumerated as paragraphs (1)–(4).
The 2010 amendment redesignated what were paragraphs
(3) and (4) as paragraphs (4) and (5) and added “new para-
graph (f)(3).” Final Rule, 75 Fed. Reg. at 39,852.
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ORTIZ v. MCDONOUGH 13

claimed stressor’; (2) the VA psychiatrist or psychologist’s
findings are not contradicted by ‘clear and convincing evi-
dence’; and (3) ‘the claimed stressor is consistent with the
places, types, and circumstances of the veteran’s service.’”
Sanchez-Navarro v. McDonald, 774 F.3d 1380, 1384 (Fed.
Cir. 2014) (quoting 38 C.F.R. § 3.304(f)(3)).
The change made a decisive difference for Mr. Ortiz.
VA denied his 1997 claim, despite a VA medical examiner’s
opinion stating a PTSD diagnosis tied to Vietnam combat,
because Mr. Ortiz failed to present corroborating evidence
of the in-service stressor. J.A. 17 (stating that “the claimed
in-service stressor(s) cannot be confirmed”). That decision
became final in 1999, but when VA received Mr. Ortiz’s mo-
tion to reopen the claim on May 22, 2012, VA quickly reo-
pened the claim and granted it, with a 100 percent
disability rating. J.A. 30–36 (September 26, 2012 deci-
sion). There is no dispute before us about whether “new
and material evidence” was present, justifying the reopen-
ing, or about Mr. Ortiz’s entitlement to service-connected
disability benefits based on PTSD. And VA itself stated
that it granted the claim “because [it] conceded that [Mr.
Ortiz] experienced fear due to hostile military or terrorist
activity while serving in Vietnam and because the VA ex-
aminer related [his] diagnosis of PTSD to that fear,” which
was now enough because new § 3.304(f)(3) “relaxed the ev-
identiary standard for establishing the required in-service
stressor” for claims based on PTSD. J.A. 40; see also J.A.
40 (New § 3.304(f)(3) “eliminated the requirement for cor-
roborating evidence.”); J.A. 42 (“Easing Standard”).
D
The only dispute before us is whether § 3.304(f)(3) was
a “liberalizing” change under § 3.114(a). The regional of-
fice concluded that it was not. J.A. 40, 103. The Board
reached the same conclusion, after “acknowledg[ing] that
the Veteran’s service connection claim for PTSD was ulti-
mately granted pursuant to an amended PTSD regulation.”
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14 ORTIZ v. MCDONOUGH

J.A. 113; see also J.A. 110–14. The Board relied on the Vet-
erans Court’s holding in Foreman v. Shulkin, 29 Vet. App.
146 (2018), that § 3.304(f)(3) was not “liberalizing” under
§ 3.114(a). See J.A. 114. The Veterans Court then af-
firmed: It accepted the Board’s determination that Mr.
Ortiz’s “claim was granted based on [the 2010] change in
VA’s regulations addressing establishing an in-service
stressor,” but it concluded that it was bound by its Foreman
precedent. Ortiz v. Wilkie, No. 19-0070, 2020 WL 1173715,
at *1–2 (Vet. App. Mar. 12, 2020).
Mr. Ortiz timely appealed. We have jurisdiction under
38 U.S.C. § 7292 to review the Veterans Court’s ruling be-
cause whether § 3.304(f)(3) made a “liberalizing” change
within the meaning of § 3.114(a) presents a question of law.
See Spencer, 17 F.3d at 372.
II
We conclude that the addition of § 3.304(f)(3) made a
“liberalizing” change under § 3.114(a). We decide the issue
without applying the deference doctrine of Auer v. Robbins,
519 U.S. 452 (1997), as clarified in Kisor v. Wilkie, 139 S.
Ct. 2400 (2019). Although we doubt that the doctrine
would apply to the question presented, we need not decide
the doctrine’s applicability, or whether our answer to the
legal question is a matter of unambiguous meaning (mak-
ing the doctrine immaterial), because the Secretary does
not invoke the doctrine. Cf. HollyFrontier Cheyenne Refin-
ing, LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2180
(2021) (declining to apply statutory-interpretation doctrine
of Chevron U.S.A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984), where not invoked by the gov-
ernment); County of Maui v. Hawaii Wildlife Fund, 140 S.
Ct. 1462, 1474 (2020) (similar); see Massachusetts Mut. Life
Ins. Co. v. United States, 782 F.3d 1354, 1369–70 (Fed. Cir.
2015) (Auer deference forfeitable).
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ORTIZ v. MCDONOUGH 15

A
We generally must “interpret the words consistent with
their ordinary meaning at the time” of adoption. Wisconsin
Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018)
(cleaned up). The Secretary agrees that, in general, “to ‘lib-
eralize’ means to make policies or laws less strict.” Secre-
tary Response Br. at 17 (citing Black’s Law Dictionary
(11th ed. 2019)). This general meaning was common at the
time of § 3.114(a)’s promulgation and the 2010 amendment
to § 3.304, and it remains common now. See, e.g., Webster’s
Third New International Dictionary 1303 (1961) (“to make
less strict or rigorous”); The American College Dictionary
702 (1962) (“to make or become more liberal,” i.e., “not
strict or rigorous”); The American Heritage Dictionary 727
(2d College ed. 1982) (similar); Oxford English Dictionary
(2d ed. 1989) (“to free from narrowness” and “[t]o remove
restrictions on”); The American Heritage Dictionary of the
English Language 1036–37 (3d ed. 1992) (“To make liberal
or more liberal,” i.e., “[n]ot strict”); Black’s Law Dictionary
1057 (10th ed. 2009) (“To make a system, laws, policies, or
moral attitudes less strict, censorious, and rhadaman-
thine.”); Oxford English Dictionary (3d ed. 2010) (“to free
from narrowness or strictness; to relax”); see also, e.g., S.
Rep. No. 87-2042, at 1 (1962) (using “liberalizing” in this
sense); H. Rep. No. 87-2123, at 1 (1962) (same); Final Rule,
75 Fed. Reg. at 39,843 and 39,845 (same).
The 2010 change was a “liberalizing” one under the
term’s ordinary meaning. Before the 2010 addition of
§ 3.304(f)(3), the legal standard governing a claim of PTSD-
based disability in Mr. Ortiz’s circumstances required cor-
roborating evidence, beyond the veteran’s own testimony,
to confirm the in-service occurrence of the asserted
stressor. The 2010 change eliminated that requirement of
the affirmative case for veterans like Mr. Ortiz. The re-
quirements for affirmatively showing entitlement, in short,
became less strict. See Sanchez-Navarro, 774 F.3d at 1384
(Section “3.304(f)(3) applies a more relaxed standard” than
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16 ORTIZ v. MCDONOUGH

preexisting subsection (f).); Hall, 717 F.3d at 1371 (Section
3.304(f)(3) “grants veterans a special exception to th[e] nor-
mal evidentiary burden” stated in the preexisting subsec-
tion (f).); NOVA, 669 F.3d at 1344 (referring to § 3.304(f)(3)
as a “lower evidentiary standard”).
The Secretary agrees: “We do not dispute that section
3.304(f)(3) made the evidentiary burden for establishing
service connection for PTSD based upon fear of hostile ter-
rorist or military activity less strict.” Secretary Response
Br. at 17 n.7 (citing above passages). For good reason: Be-
fore the change, Mr. Ortiz’s claim was rejected, whereas af-
ter the change, it was granted undisputedly because of the
elimination of a concrete component of what he was previ-
ously required to show in his affirmative case for entitle-
ment to an award.
In fact, the 2010 change is a prototypical example of a
“liberalizing” change resulting in an “award.” Cf. McBoyle
v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.) (rely-
ing on the idea of a “picture” “evoke[d] in the common
mind”). The term “liberalizing” when used with “law” and
“VA issue” in the context of a “claim” most naturally covers
a relaxation of a claimant’s affirmative burden. That is ex-
actly what the 2010 change does. A veteran generally has
the affirmative burden of production to establish the ele-
ments of a claim of entitlement (though VA has a duty to
assist). See 38 U.S.C. § 5107(a) (“Except as otherwise pro-
vided by law, a claimant has the responsibility to present
and support a claim for benefits under laws administered
by the Secretary.”); id. § 5103A (duty to assist); 38 C.F.R.
§ 3.159 (implementing § 5103A). The 2010 amendment
changed concrete components of what VA must consider
“sufficient proof,” 38 U.S.C. § 1154(b), to establish an ele-
ment of entitlement, so it relaxed the veteran’s affirmative
responsibility in presenting and supporting a claim for ben-
efits.
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ORTIZ v. MCDONOUGH 17

This meaning fits the context of 38 U.S.C. § 5110(g)
and 38 C.F.R. § 3.114(a). Those provisions provide up to
one extra year of benefits when an award has been made
or increased pursuant to a qualifying “[c]hange of law or
[VA] issue” (§ 3.114(a) title)—allowing veterans a brief ex-
tra period to become aware and to take advantage of a
change that newly entitles them to an award or an increase
of compensation. The ordinary meaning of “liberalizing” is
not in any way out of place in that context. When Congress
enacted the provision now codified as § 5110(g), the con-
gressional committees, using the language of “liberalizing,”
explained: “Claimants who have no knowledge of the bene-
fits or are not identified by [VA] . . . may be penalized by
not filing promptly.” S. Rep. No. 87-2041, at 6; H. Rep. No.
87-2123 at 6 (same). Applying the term’s ordinary meaning
mitigates the delay penalty.
B
The Secretary nevertheless argues that we should not
apply the ordinary meaning of “liberalizing” here, resting
that argument entirely on Spencer and Routen. For two
independent reasons, however, we reject the argument.
First, neither Spencer nor Routen actually decided the is-
sue of what changes suffice to trigger application of the reg-
ulation (or, for that matter, of the statute) to give a veteran
the earlier effective date. They decided a different issue:
what the implications of the statute (and regulation) are
for the availability of a new original claim that, outside the
statutory reconsideration paths, avoids the otherwise-ap-
plicable statutory bar based on a previous final rejection of
a veteran’s earlier claim. Second, the change in the present
case materially differs from the particular changes that the
court in Spencer and Routen held insufficient to allow a
new original claim. We conclude not only that the two prec-
edents provide no persuasive basis for rejecting the ordi-
nary-meaning application of “liberalizing” to cover
§ 3.304(f)(3) but also that, even if the formulations used by
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18 ORTIZ v. MCDONOUGH

Spencer and Routen are borrowed to define “liberalizing,”
§ 3.304(f)(3) qualifies.
1
Unlike this case, neither Spencer nor Routen involved
an effective-date issue, so in neither case did this court di-
rectly apply 38 C.F.R. § 3.114(a) or decide what “liberaliz-
ing” means in identifying a change of law or VA issue that
qualifies for the earlier effective date of an award. Indeed,
unlike this case—where the claim was reopened and there
is no dispute about the propriety of that reopening (or grant
of the claim)—neither Spencer nor Routen involved a claim
that was reopened under 38 U.S.C. § 5108. The portions of
both decisions on which the Secretary relies involve only
whether a new original claim was available because of the
asserted change of law or regulation.
In Spencer, the veteran had filed a claim for benefits
based on his diagnosis of multiple sclerosis. 17 F.3d at 370.
The regional office denied his claim because he failed to
provide sufficient evidence that “the disability was in-
curred in or aggravated by his service in the military.” Id.
The regional office’s decision became final. Years later, the
veteran sought both to reopen his finally decided claim be-
cause of new and material evidence and to have his claim
considered as a new original claim because there was an
“intervening change in law,” namely the passage of the Vet-
erans’ Judicial Review Act of 1988 (VJRA). Id. at 371–73.
The Board, and then the Veterans Court, determined that
the veteran’s claim warranted neither reopening nor fresh
consideration. Id. at 370–71.
We agreed. As to the denial of reopening for want of
new and material evidence, we concluded that we lacked
jurisdiction to address it, for reasons not pertinent to the
issue now before us in this case. See id. at 373–74. The
veteran’s right to proceed therefore depended on whether
he had available a new original claim. We adopted the Vet-
erans Court’s conclusion, as quoted above, that § 5110(g),
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ORTIZ v. MCDONOUGH 19

though not directly authorizing a new avenue for reconsid-
eration of a final decision, implicitly presupposes that
sometimes a change of law or regulation can support the
availability of a new original claim; but we recognized that
such availability requires a modification of the express
statutory protection of finality, notably that of § 7104, and
the limited express statutory provisions for reconsidera-
tion. Id. at 371–72; Spencer CAVC, 4 Vet. App. at 287–89.
It was in harmonizing express statutory commands (final-
ity, with two limited paths around finality) with an impli-
cation from another statutory provision directed at another
issue (effective dates) that we decided that a new original
claim requires “a new basis of entitlement to a claimed ben-
efit as the result of an intervening change in law or regula-
tion.” Spencer, 17 F.3d at 373. And we held that the
generic VJRA changes on which the veteran relied did not
meet that standard because they “were unmistakably pro-
cedural in nature” and thus did not “substantively affect[]
the nature” of the finally decided claim. Id. at 372–73.
Routen involved a materially identical posture. In that
case, the veteran’s claim had been denied in a final decision
before the relevant regulatory change. 142 F.3d at 1436–
37. After the regulatory change (concerning the govern-
ment’s rebuttal burden on in-service aggravation of a
preexisting injury), the veteran sought to reopen his claim
based on new and material evidence and to have his claim
considered de novo as a new original claim. Id. The re-
gional office declined to reopen the veteran’s claim for new
and material evidence and did not consider the claim a new
original claim. Id. The Board and the Veterans Court
again agreed with the regional office. Id.
So did we. As to the denial of reopening, we determined
that a “presumption” is not itself new and material evi-
dence. Id. at 1439–41. As to the new-original-claim issue,
we concluded that the relevant regulatory amendment was
insufficient to support allowing the claim as a new original
one. Id. at 1441–42. We recognized that the issue was one
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20 ORTIZ v. MCDONOUGH

of seeking to harmonize the express statutory finality prin-
ciple of § 7104 with an implied presupposition found in
§ 5110(g) (and its implementing regulation), where neither
of the two express statutory authorizations for reconsider-
ation (clear and unmistakable error, and reopening) was
applicable. Routen, 142 F.3d at 1442 (emphasizing that
“the logic of the intervening change rule, if it is to escape
the bar of § 7104(b), must be that the intervening change
in law creates a new cause of action”). And we held that
changing the government’s rebuttal burden (newly to re-
quire clear and unmistakable evidence) was a “procedural”
one, and made no “substantive change” in what the veteran
had to show to be entitled to an award, and thus did not
support recognition of a new original claim. Id.
Spencer and Routen therefore involved only the ques-
tion of how far express statutory provisions—the statutory
finality bar, subject to only limited express statutory routes
for reconsideration—had to be deemed implicitly modified
by § 5110(g) and its implementing regulation, which ad-
dress only the effective date of an award for which the stat-
ute elsewhere provides express authority. That is not the
question here. In this case, there is no question of modify-
ing an express statutory means for reconsideration: It is
undisputed before us that one of the express means (reo-
pening based on new and material evidence) was properly
used. The only question here is the proper application of
the effective-date prescription (§ 5110(g) as implemented
by § 3.114(a)) in a matter that undisputedly fell within an
express statutory avenue of reconsideration. That question
did not arise in Spencer and Routen, and unlike the ques-
tion answered in those cases, the question here does not
present any facial conflict with other express legal con-
straints whose modification must be minimized. Routen it-
self recognized that the questions are distinct. 142 F.3d at
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ORTIZ v. MCDONOUGH 21

1441 (The regulation Ҥ 3.114 addresses a different issue.
It sets the effective date of awards[.]”). 7
“When a prior decision does not ‘squarely address[] [an]
issue,’ a court remains ‘free to address the issue on the mer-
its’ in a subsequent case.” Arthrex, Inc. v. Smith & Nephew,
Inc., 880 F.3d 1345, 1349 (Fed. Cir. 2018) (alterations by
Arthrex; quoting Brecht v. Abrahamson, 507 U.S. 619, 631
(1993)). Spencer and Routen do not control the resolution
of the issue here. And the Secretary has given no sound
reason that the questions in those cases and the question
in this case must have the same answer. Relying only on
Spencer and Routen, which we conclude do not control, the
Secretary has furnished no reason that interpretation of
the regulation at issue, § 3.114, should depart from its or-
dinary meaning—which makes sense in context and under

7 The distinction is reinforced by the fact that the
statute (§ 5110(g)) and the regulation (§ 3.114(a)) include
changes that result in an “increase” of an already granted
award, yet the court in Routen spoke of a “new cause of ac-
tion,” 142 F.3d at 1436, 1441–42. Although the court in
Routen did not give a specific meaning to that phrase dif-
ferent from the “substantive,” “new basis of entitlement”
language that it (and the court in Spencer) used, that lan-
guage would be odd as a label for a change (covered by
§ 5110(g) and § 3.114(a)) that simply increases amounts of
compensation, as by providing for a higher rating than the
one the same facts previously supported. Cf. Vet. Aff. Op.
Gen. Couns. Prec. 9-92 (opining that “[w]here an increased
rating is occasioned only by revision of criteria for rating
psychoneurotic disorders which became effective February
3, 1988, the increased rating is to be considered based on a
liberalizing VA issue per 38 U.S.C. § 5110(g) and 38 C.F.R.
§ 3.114,” even though the elements to grant the claim re-
mained unchanged).
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22 ORTIZ v. MCDONOUGH

which, as noted, the Secretary agrees § 3.304(f)(3) was a
liberalizing change.
2
We conclude that Spencer and Routen are not control-
ling here for another reason: The 2010 addition of
§ 3.304(f)(3) materially differs from the changes that Spen-
cer and Routen deemed insufficient to support a new origi-
nal claim. Even if, in place of the ordinary meaning, the
formulations used by Spencer and Routen are borrowed to
define “liberalizing,” the 2010 addition of § 3.304(f)(3) qual-
ifies.
a
Just before the 2010 addition, a showing of service con-
nection for a PTSD claimant in Mr. Ortiz’s position re-
quired: “medical evidence diagnosing the condition in
accordance with [38 C.F.R.] § 4.125(a) of this chapter; a
link, established by medical evidence, between current
symptoms and an in-service stressor; and credible support-
ing evidence that the claimed in-service stressor occurred.”
38 C.F.R. § 3.304(f); see also supra n.5. After the 2010 ad-
dition, the “credible supporting evidence” requirement—a
requirement of corroboration—no longer applies for those
in Mr. Ortiz’s position. Specifically, “the veteran’s lay tes-
timony” suffices if certain preconditions are met (and the
government does not provide clear and convincing contrary
evidence). 38 C.F.R. § 3.304(f)(3). 8 The 2010 change thus

8 The provision added in 2010 requires satisfaction
of certain preconditions, such as confirmation from speci-
fied psychiatrist or psychologist that “the claimed stressor
is adequate to support a diagnosis of [PTSD]” and con-
sistency of the stressor with the veteran’s service. 38
C.F.R. § 3.304(f)(3). The Secretary, which agrees that the
2010 provision is less strict than the predecessor version,
has not shown that these preconditions make the
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ORTIZ v. MCDONOUGH 23

eliminated a crucial, concrete component of what was re-
quired for the veteran’s affirmative case to establish enti-
tlement.
This change is fairly described as a “new basis of enti-
tlement.” Spencer, 17 F.3d at 372, 373. It is also fairly
described as more than “procedural.” Id.; see also Carmell
v. Texas, 529 U.S. 513, 544–45 (2000) (concluding that an
elimination of a corroboration requirement went to the
“sufficiency of the evidence . . . for meeting the burden of
proof” and thus was not a “mode[] of procedure”). In fact,
the court in Routen suggested that something materially
similar, if not identical, would meet its own standard. See
142 F.3d at 1441–42 (“Thus, if the old law required proof of
facts A, B, and C, and the new law requires proof of facts
A, B, and D, a veteran who lost the A, B, C case under the
old law because he could not establish C would seem free
to claim under the new law, assuming he can establish A,
B, and D.”).
The Secretary suggests that there is a difference be-
tween a fact as an element and evidence of such a fact. See
Secretary Response Br. at 13–14. But Spencer and Routen
do not elaborate such a distinction. Moreover, it remains
true that the 2010 addition of § 3.304(f)(3) eliminated a
crucial component of a veteran’s affirmative case, whether
the component is called evidence, fact, or an element, and
that eliminating a corroboration requirement is more sub-
stantive than procedural and, in a real-world sense, creates
a new basis of entitlement. Section 3.304(f) itself, quoted
above, in prescribing the elements of the veteran’s case,
pays little attention to the distinction between evidence
and the fact evidenced, including a mix of the two catego-
ries in its three requirements—“evidence diagnosing

elimination of the corroboration requirement, so that the
veteran’s lay testimony suffices, id., anything other than
liberalizing.
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24 ORTIZ v. MCDONOUGH

[PTSD],” “a link, established by medical evidence,” and
“supporting evidence.” And VA’s general counsel, in at
least one precedential opinion, has treated relaxation of ev-
identiary requirements for a claimant as substantive for
purposes of the “liberalizing” standard. See Vet. Aff. Op.
Gen. Couns. Prec. 26-97 (“Because this change liberalized
the evidentiary basis on which entitlement to a benefit
could be established, it may be considered a substantive
change providing a new basis for establishing entitlement
to benefits and, consequently, a liberalizing VA issue for
purposes of 38 C.F.R. § 3.114(a).” (emphases added)); cf.
Vet. Aff. Op. Gen. Couns. Prec. 9-92 (opining that “[w]here
an increased rating is occasioned only by revision of criteria
for rating psychoneurotic disorders which became effective
February 3, 1988, the increased rating is to be considered
based on a liberalizing VA issue per 38 U.S.C. § 5110(g)
and 38 C.F.R. § 3.114,” even though the elements to grant
the claim remained unchanged).
In relevant respects, the 2010 change is akin to a crea-
tion of a presumption that, when certain preconditions are
met, a crucial element of a service-connection case is pre-
sumed proved. That matters because, notwithstanding
Spencer and Routen, the Secretary agrees that such a pre-
sumption is a liberalizing change. Secretary Response Br.
at 14 n.5; see also Effective Dates of Benefits for Disability
or Death Caused By Herbicide Exposure; Disposition of
Unpaid Benefits After Death of Beneficiary, 68 Fed. Reg.
50,966, 50,966 (Aug. 25, 2003) (noting that the “regulations
establishing presumptions that certain diseases are associ-
ated with herbicide exposure in service” were “liberaliz-
ing”); Oral Arg. at 15:56–16:48, 19:50–21:28. And we have
treated such a presumption as a liberalizing change. See
Hunter v. Shinseki, 538 F. App’x 904, 905 (Fed. Cir. 2013)
(concluding that a statute and certain implementing regu-
lations that “modified the presumption of herbicide expo-
sure for veterans who served in Vietnam . . . [were]
liberalizing provision[s]”); Williams v. Principi, 310 F.3d
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ORTIZ v. MCDONOUGH 25

1374, 1377–78, 1380–81 (Fed. Cir. 2002) (accepting that a
creation of a presumption is liberalizing).
Section 3.304(f)(3) is materially similar to a presump-
tion. A presumption itself is an “[e]videntiary rule,” which
effectively “supplies the required evidence” when specified
“preconditions are satisfied.” Snyder v. McDonough, 1
F.4th 996, 1004 (Fed. Cir. 2021); see also Routen, 142 F.3d
at 1440 (“When the predicate evidence is established that
triggers the presumption, the further evidentiary gap is
filled by the presumption.”). Section 3.304(f)(3) does the
same. Presumptions are generally rebuttable on proof that
meets a specified standard of convincingness. Routen, 142
F.3d at 1440. Section 3.304(f)(3) states that the govern-
ment can overcome the exception to the corroboration re-
quirement when there is “clear and convincing evidence to
the contrary.”
For those reasons, the 2010 addition of § 3.304(f)(3)
fairly comes within the key formulations articulated in
Spencer and Routen if those formulations are borrowed to
define “liberalizing.” It established a new basis of entitle-
ment by alleviating the substantive burden of presenting
specified concrete evidence previously required of the vet-
eran as part of the affirmative case. Although the court in
Routen also used the phrase “new cause of action,” 142 F.3d
at 1436, 1441–42, it did not specify content for that phrase
apart from the “new basis of entitlement” and “substan-
tive” formulations. In fact, the Secretary argues here that
those formulations state the standard of Spencer and
Routen, without separate reference to “new cause of ac-
tion.” See Secretary Response Br. at 16 (“As explained
above, a ‘liberalizing law or VA issue’ within the context of
38 C.F.R. § 3.114(a) and 38 U.S.C. § 5110(g) is one that ef-
fects a substantive change in law or regulation and creates
a new basis for entitlement to a benefit. Routen, 142 F.3d
at 1441–42; Spencer, 17 F.3d 368.”). We conclude that
§ 3.304(f)(3) lies on the qualifying side of the line drawn (in
answering a different question) in Spencer and Routen.
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26 ORTIZ v. MCDONOUGH

b
Spencer and Routen, on their facts, also did not involve
changes like those made by the 2010 addition of
§ 3.304(f)(3). The changes ruled on in those cases did not
eliminate concrete components of the veteran’s affirmative
case for entitlement to particular benefits.
In Spencer, we rejected the contention that a set of gen-
eral changes made by the VJRA created a new basis of en-
titlement, concluding that the “reforms implemented by
the VJRA were directed to improving the adjudicative pro-
cess.” 17 F.3d at 372. The opinion’s focus was on the new
availability of judicial review, but the court mentioned, as
well, the provision that “[w]hen there is an approximate
balance of positive and negative evidence regarding any is-
sue material to the determination of a matter, the Secre-
tary shall give the benefit of the doubt to the claimant,” 38
U.S.C. § 5107(b). See Spencer, 17 F.3d at 372. Neither
§ 5107(b) nor the other measures invoked by the veteran in
Spencer altered any particular component of the veteran’s
case. Even § 5107(b) is an across-the-board standard for
how persuaded VA must be of whatever particular submis-
sion the veteran makes. The Secretary here has made no
argument specifically focused on § 5107(b), let alone one
contending that it is relevantly similar to § 3.304(f)(3).
Routen likewise did not involve a concrete relaxation of
a component of a veteran’s affirmative case. Rather, it in-
volved a heightening of the government’s rebuttal burden
in a particular situation. A regulation provided that, when
a veteran claims disability based on aggravation during
service of a preexisting injury, see 38 U.S.C. § 1110 (war-
time service), § 1131 (peacetime service), all the veteran
needed to show was a pre-service injury that worsened dur-
ing service. The government could rebut the presumption
that it was the service that aggravated the injury by show-
ing that the worsening was the natural progression of the
preexisting injury. For wartime veterans, the government
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ORTIZ v. MCDONOUGH 27

had to make that showing by “clear and unmistakable evi-
dence,” but for peacetime veterans, the government could
make the showing by “available evidence of a nature gen-
erally acceptable as competent.” 142 F.3d at 1438 (internal
quotation marks omitted). The regulatory change at issue
in Routen was VA’s imposition on the government, for its
rebuttal case involving aggravation claims of peacetime
veterans, of the higher degree of persuasiveness (clear and
unmistakable evidence) already imposed on the govern-
ment for wartime veterans. Id.
It was that regulatory change Routen held not to qual-
ify. That change did not alter the veteran’s affirmative
case at all. It altered only the government’s rebuttal case—
and did so only at the general level of specifying how per-
suasive the government’s evidence must be, not by altering
particular components of proof. Those features critically
differ from the elimination of a proof element of a veteran’s
affirmative case that was effected by the 2010 addition of
§ 3.304(f)(3).
C
To the extent relevant, VA’s statements in adopting the
2010 the Final Rule underscore the conclusion that
§ 3.304(f)(3) is liberalizing. In the Final Rule, VA recog-
nized that the 2010 amendment effectively “eliminate[d]”
an evidentiary “requirement” when the specified precondi-
tions were met. See 75 Fed. Reg. at 39,843 (explaining that
“[t]his amendment eliminates the requirement for corrobo-
rating that the claimed in-service stressor occurred if” the
preconditions are met (emphasis added)); Proposed Rule,
74 Fed. Reg. at 42,617 (same). And VA characterized the
effect of § 3.304(f)(3) as “liberalizing.” See Final Rule, 75
Fed. Reg. at 39,843 (“The Department of Veterans Affairs
(VA) is amending its adjudication regulations governing
service connection for posttraumatic stress disorder
(PTSD) by liberalizing in some cases the evidentiary stand-
ard for establishing the required in-service stressor.”
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28 ORTIZ v. MCDONOUGH

(emphasis added)); id. at 39,845 (“Opposition to Liberaliz-
ing Evidentiary Standard”); id. (“VA received written com-
ments objecting to the liberalizing evidentiary standard for
PTSD claims based on fear of hostile military or terrorist
activity.”).
The Veterans Court in Foreman concluded that the
2010 addition of § 3.304(f)(3) was “procedural in nature and
therefore not liberalizing for effective date purposes” and
stated that its conclusion was “bolster[ed]” by VA’s state-
ments “that § 3.304(f)(3) was intended to decrease the bur-
den on veterans and VA in researching claimed stressors,
improve timeliness, and ensure consistent decision-mak-
ing.” 29 Vet. App. at 152. To be sure, the Final Rule says
that § 3.304(f)(3) would “facilitate the timely processing of
PTSD claims by simplifying the development and research
procedures that apply to these claims.” 75 Fed. Reg. at
39,843; see also id. at 39,845 (“Finally, we believe that this
rule will improve the timeliness of the adjudication of
claims of all veterans by eliminating the need to search for
corroborating evidence in certain cases.”); Proposed Rule,
74 Fed. Reg. at 42,618 (“Improved timeliness, consistent
decision-making, and equitable resolution of PTSD claims
are the intended results of the revised regulation.”). But
those statements do not suggest a procedural character of
the change actually made: A substantive change can be
made to achieve process benefits. For example, a presump-
tion of service connection would improve timeliness and
consistency of decisionmaking, yet this court and VA have
determined that a law or VA issue creating such a pre-
sumption is liberalizing.
Finally, VA in the Final Rule asserted that the 2010
addition of § 3.304(f)(3) “governs procedural matters rather
than creating a new basis for entitlement to service connec-
tion for PTSD because it merely relaxes under certain cir-
cumstances the evidentiary standard for establishing
occurrence of a stressor.” 75 Fed. Reg. at 39,851. On ap-
peal, VA does not ask for deference to that legal
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ORTIZ v. MCDONOUGH 29

characterization. The statement by itself does not alter our
analysis of what the Final Rule actually does, whether the
change meets the best understanding of “liberalizing” in
§ 3.114(a), or the proper understanding and implications of
Spencer and Routen.
III
For the foregoing reasons, we reverse the decision of
the Veterans Court.
The parties shall bear their own costs.
REVERSED