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Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
May 9, 2024 | Volume 31, Issue 11
This Report summarizes cases granted review on April 19 and 26, 2024 (Part I).
Case Granted Review
Bufkin v. McDonough, 23-713.
The issue presented is whether the U.S. Court of Appeals for Veterans Claims must “ensure that the benefit-of-the-doubt rule,” set forth in 38 U.S.C. §5107(b), “was properly applied during the claims process [to] satisfy 38 U.S.C. §7261(b)(1), which directs the [court] to ‘take due account’ of [the Secretary of Veterans Affairs’] application of that rule.” For over a century, our country has maintained a policy that in the context of veterans benefit claims adjudication, it is the veteran, rather than the Government, who “receives the benefit of the doubt on” close issues. That policy was codified in §5107(b). That section requires that the Secretary, when considering the information and evidence contained in the record, “shall” give the claimant the “benefit of the doubt” “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter . . . .” If a claimant receives an adverse decision before the VA regional office in her pursuit of benefits, she can appeal to the Board of Veterans Appeals and, if unsuccessful again, to the Court of Appeals for Veterans Claims (Veterans Court), which “has exclusive jurisdiction to review Board decisions.” Section 7261(a) sets forth the scope of Veterans Court review. That court decides questions of law; it “set[s] aside or reverse[s] ‘a finding of material fact adverse to the claimant … if the finding is clearly erroneous”; and it will set aside Board decisions deemed “arbitrary, capricious, or contrary to law.” In 2002, Congress enacted §7261(b), which instructs the Veterans Court that, in making its “‘determinations under subsection (a),’ the [court] must ‘take due account’ of the rule of prejudicial error and the Secretary’s application of the benefit-of-the-doubt rule.”
Petitioners Joshua Bufkin and Norman Thornton separately filed for disability benefits with the VA, claiming service-related PTSD. Each was unsuccessful in the lower proceedings (regional office, Board, and Veterans Court). In Bufkin’s case, the benefit-of-the-doubt rule was not applied because the Board concluded “that the preponderance of the evidence weighed against” Bufkin’s claim, rendering the rule inapplicable. Although the rule was applied in Thornton’s case, he nevertheless was aggrieved because he did not receive the particular disability rating that he sought. Petitioners appealed to the Federal Circuit to “challenge[ ] the Veterans Court’s interpretation of §7261(b)(1).” In Bufkin’s case, one panel of the court held “that ‘the Veterans Court applied the appropriate standard of review, clear error, and properly took account of the Board’s application of the benefit of the doubt rule.’” 75 F.4th 1368. Another panel of the court (in an unpublished opinion) relied on the Bufkin decision in rejecting Thornton’s interpretation of §7261(b)(1), and affirmed the Veterans Court decision. “Summarizing its combined holding reflecting both cases, [the panel in Thornton’s case] announced the following interpretation of §7261(b)(1): the statutory command that the Veterans Court take due account of the benefit of the doubt rule does not require the Veterans Court to conduct any review of the benefit of the doubt issue beyond the clear error review required by §7261[(a)], and if no issue that touches upon the benefit of the doubt rule is raised on appeal, the Veterans Court is not required to sua sponte review the underlying facts and address the benefit of the doubt issue.” (Internal quotation marks omitted.)
Petitioners argue that the Federal Circuit misinterpreted §7261(b)(1)’s plain text. Instead, petitioners argue, the statute’s text requires the Veterans Court to “ensure that the Secretary correctly applied the benefit-of-the-doubt rule” such that, “if the evidence on any material issues is in approximate balance, the issue [is] resolved in the claimant’s favor.” “Here, that means that the Veterans Court should have ‘reviewed the record’ in [petitioners’] cases, assessed whether there were any material issues for which the evidence was in ‘approximate balance,’ ensured that those issues were resolved in the veterans’ favor, and determined the proper disposition of each appeal in light of that inquiry.” According to petitioners, this review is entirely separate from the obligations imposed on the Veterans Court in subsection (a) of §7261 and must be addressed “even if the claimant does not raise any issue touching on it.” Petitioners further argue that the Federal Circuit’s misinterpretation of §7261(b)(1) “frustrates Congress’s clear intent,” as evidenced in the legislative history, to address the pre-2002 “‘perceived lack of searching appellate review of [Board] decisions’ and persistent ‘failure to consider the benefit of the doubt rule.’”
In response, the Secretary agrees that §7261’s text is plain; but he argues that petitioners’ argument contravenes it. The Secretary argues that the Federal Circuit correctly held that §7261(a) and (c) limit the scope of the Veterans Court’s review. Applying those subsections in the present case “means that the Veterans Court may determine whether the Board committed clear error in its application of the benefit-of-the-doubt rule. And if the court finds such error, it may, in appropriate circumstances, ‘reverse’ the Boad’s decision rather than remanding it.” Contrary to petitioners’ argument, “the Veterans Court is authorized to consider the benefit-of-the-doubt rule only when ‘making the determinations under subsection (a),’ 38 U.S.C. 7261(b), and those determinations may be made only ‘to the extent necessary to the Veterans Court’s decision ‘and when presented,’ 38 U.S.C. 7261(a).” Section 7261(b)(1) does not “impose[ ] a freestanding requirement that the Veterans Court address the Secretary’s application of the . . . rule even if the claimant does not raise any issue touching on it.” The Secretary adds that, even if the statute’s legislative history were relevant here, it does not support petitioners’ argument “that Congress intended to create a different or additional standard of review for the Veterans Court’s review of the Secretary’s benefit-of-the-doubt determination.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Melissa Patterson, Supreme Court Fellow
- Amanda Schwartz, Supreme Court Fellow
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