Issues
Must the U.S. Court of Appeals for Veterans Claims ensure that the benefit-of-the-doubt rule was properly applied during the claims process when reviewing veterans’ benefits claims?
This case asks the Supreme Court to determine the standard of review that the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) should apply to claims on appeal. Bufkin argues that the Veterans Court must review the Secretary of Veterans Affairs’ and the Board of Veteran Appeals’ application of “the benefit of the doubt” where any evidence material to the veteran’s disability-benefits claim is in approximate balance. Further, Bufkin contends that in conducting this separate review, the Veterans Court is reviewing a matter of law, which requires a more demanding standard of review than clear error. McDonough counters that the Veterans Court is instead engaging in a factual review, arguing it should not reassess the facts to determine whether the benefit-of-the-doubt rule applies unless clearly erroneous. McDonough asserts that the Veterans Court need only consider whether the Department of Veterans Affairs properly applied the rule when raised. The outcome of this case has future implications for veterans’ disability benefits claims and the scope of the Department of Veterans Affairs’ powers.
Questions as Framed for the Court by the Parties
Whether the U.S. Court of Appeals for Veterans Claims must ensure that the benefit-of-the-doubt rule 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 Department of Veterans Affairs’ application of that rule.
Facts
In 1988, Congress enacted the Veterans’ Judicial Review Act (“VJRA”) creating the United States Court of Appeals for Veterans Claims (“Veterans Court”), a specialized Article I tribunal meant to review decisions by the Board of Veterans Appeals (“Board”). Importantly, the VJRA formalized the benefit-of-the-doubt rule, codified in relevant part at 38 U.S.C. § 5107(b). This rule requires that when the evidence regarding any issue material to a veteran’s disability benefits claim is in approximate balance, the Secretary of Veterans Affairs and the (“Board”) must rule in favor of the veteran claimant. 38 U.S.C. § 5107(b). In other words, when there is a close call, the Veterans Court should give the benefit of the doubt to the veteran, not the United States Department of Veterans Affairs (“VA”). Through the Veterans Benefits Act of 2002 (“VBA”), Congress amended the responsibilities of the Veterans Court to “take due account of the Secretary’s application of 5107(b).” 38 U.S.C. § 7261(b)(1). This case hinges on the interpretation of this provision and whether it requires the Veterans Court to conduct a separate review of the benefit-of-the doubt issue beyond looking at the Board’s fact finding for clear error.
Petitioners, veterans Joshua Bufkin and Robert Thornton (collectively “Bufkin”), separately applied for and were each ultimately denied disability benefits by the United States Department of Veteran Affairs (“VA”). From 2005 to 2006, Joshua Bufkin served in the U.S. Air Force. Bufkin v. McDonough, at 2. In 2013, Bufkin filed a claim for service-connected disability benefits for post-traumatic stress disorder (“PTSD”). Id. Despite submitting supporting medical records from a VA psychiatrist, Bufkin’s regional VA office denied his claim, citing an insufficient link to an in-service stressor and conflicting testimony from other VA physicians. Id. Following reconsideration at the request of Bufkin, the regional VA office maintained its decision. Id. On appeal to the Board, Bufkin argued that the VA “failed to consider and correctly apply” the benefit-of-the-doubt rule. Id. The Board affirmed the regional VA office decision, finding that because the preponderance of the evidence was against the veteran, the benefit-of-the-doubt rule did not apply. Id.
In 2005, Robert Thornton, who served in the U.S. Army from 1988 to 1991 applied for service-connected disability benefits for PTSD. Thornton v. McDonough, at 1. Thornton was eventually given a 50% rating, which he appealed and lost. Id. Since the evidence was not evenly balanced, the Board did not apply the benefit-of-the-doubt rule. Id.
Both Bufkin and Thornton appealed their respective cases to the Veterans Court. In Bufkin’s case, the Veterans Court affirmed the Board’s decision finding that the Board’s application of the benefit-of-the-doubt rule was not clearly erroneous. Bufkin at 2. In Thornton’s case, the Veterans Court also applied clear error review, similarly finding no clear error in the Board’s application of the benefit-of-the-doubt rule. Thornton at 2. Both individuals appealed their respective decisions to the United States Court of Appeals for the Fourth Circuit.
On appeal, Bufkin argued that the Veterans Court erred when it failed to conduct a separate benefit-of-the-doubt review of the Board’s underlying factfinding and its application. Bufkin at 7. The Fourth Court affirmed the Veterans Court’s holding that the VBA is not required to “examine independently how the benefit of the doubt rule was applied during the claims process at the regional office.” Id. The Fourth Circuit similarly resolved Thornton’s case. Thornton, at 1371.
Accordingly, on December 29, 2023, Bufkin and Thornton petitioned the Supreme Court of the United States to hear their cases. On April 29, 2024, The Supreme Court granted certiorari to both cases and consolidated them into one case under the name Thornton v. McDonough, because Denis McDonough is the Secretary of Veterans Affairs (“McDonough”).
Analysis
THE VETERANS COURT’S STANDARD OF REVIEW FOR THE BOARD’S APPLICATION OF THE BENEFIT-OF-THE-DOUBT RULE
Bufkin argues that the VBA requires the Veterans Court to apply a more demanding standard of review than clear error when evaluating the Board’s application of the benefit-of-the-doubt rule. Brief for Petitioners, Joshua E. Bufkin and Norman F. Thornton (“Bufkin”) at 33. Bufkin contends that 38 U.S.C. § 7261(b)(1) requires the Veterans Court to “review the record” from the Board to see if any evidence material to the benefits issue is in “approximate balance” and to then confirm whether the veteran was given the benefit of the doubt. Id. Bufkin argues this review ensures that the Board applied the right standard of proof to the evidence, which would otherwise be a legal error according to United States v. Singer Mfg. Co., and can thus be corrected as a matter of law. Id. at 43. Therefore, Bufkin concludes that the clear error review standard that applies to the Board’s underlying fact-finding and remains distinct from the legal issue set out in subsection (b)(1). Id. at 44. Bufkin further asserts that since this review is a legal matter it does not violate 38 U.S.C. §7261(c)’s prohibition on de novo judicial review of the Board’s findings of fact. Id. at 48.
Bufkin argues that McDonough’s interpretation undermines a principle of statutory interpretation that requires giving meaning to every clause and word in a statute. Brief for Petitioners at 39. Bufkin claims that analyzing the benefit-of-the-doubt rule under the clear error standard merges the distinct obligations of § 7261’s subsection (a)(4) and (b)(1), despite their placement in separate sections with different phrasings. Id. at 39–40. Bufkin contends that this redundant interpretation contradicts Congress’s intent in amending the statute, which was specifically aimed at remedying the denial of benefits to deserving veterans. Id. 35. Thus, Bufkin argues that a less deferential standard of review for the benefit-of-the-doubt rule appropriately implements Congress’s intent by ensuring veterans receive the benefit of the doubt in their claims. Id. Bufkin questions why Congress would add subsection (b)(1) years later if it did not intend to change the Veterans Court’s responsibilities. Id. Additionally, Bufkin cites Rudisill v. McDonough, to support the proposition that ambiguous statutes should be interpreted in favor of veterans. Id. at 37. Therefore, Bufkin concludes that even if the statute is ambiguous, both congressional intent and the Supreme Court’s “pro-veteran approach” support a lower standard for reviewing the benefit-of-the-doubt rule. Id.
McDonough supports the Federal Circuit’s interpretation that the Veterans Court’s standard of review for application for the benefit-of-the-doubt rule is clear error. Brief for Respondents, Denis McDonough (“McDonough”) at 19. McDonough argues subsection (b)(1) is bound by subsection (a) due to the phrase “[i]n making the determinations under subsection (a),” and because subsection (a) permits the Veterans Court to reverse the Board’s fact-finding only if “clearly erroneous.” Id. McDonough disagrees that the Board’s determination that the evidence is not in approximate balance is a legal finding; instead, he contends that it is factual and therefore only reviewable for clear error under Subsection (a). Id. at 23. McDonough further asserts that weighing evidence involves factual determinations like credibility and relevance. Id. McDonough points to subsection (c)’s prohibition on de novo review, reasoning that Bufkin’s interpretation would amount to a trial de novo, violating subsection (c). Id. at 28.
McDonough disagrees with Bufkin’s claim that applying a clear error standard makes subsection (b)(1) redundant with subsection (a). Brief for Respondents at 29. McDonough argues that Congress added subsection (b)(1) to clarify that subsection (a) requires the Veterans Court to review the benefit-of-the-doubt rule when raised, making subsection (b)(1) a clarification and not superfluous. Id. McDonough stresses that courts should simply enforce the statute’s pre-existing plain language, and not alter its meaning merely because subsection (b)(1) was added as an amendment. Id. at 31. Further, McDonough challenges Bufkin’s reliance on legislative history, citing Azar v. Allina Health Services to argue that legislative history should not alter an unambiguous statute. Id. Specifically, McDonough notes Congress’s implementation of the phrase “[i]n making the determinations under subsection (a)” and draws attention to the lack of a different standard of review. Id. at 31–32. Further, McDonough asserts that even if the Supreme Court does consult legislative history, that history is itself ambiguous. Id. at 31–32. McDonough also contends that Bufkin’s reliance on the Supreme Court’s pro-veteran approach is misplaced, as the approach only applies to resolve ambiguity, not to override clear text. Id. at 37. Thus, McDonough concludes that his posited interpretation of subsection (b)(1) does not go against legislative intent and does not contradict the pro-veteran approach. Id. at 31, 37.
WHEN MUST THE VETERANS COURT REVIEW APPLICATION OF THE BENEFIT-OF-THE-DOUBT RULE
Bufkin argues that in making determinations under subsection (a), subsection (b)(1) requires the Veterans Court to review the record and consider whether the veteran received the benefit of the doubt on close calls. Brief for Petitioners at 27. Citing Kingdomware Techs., Inc. v. United States, where the Supreme Court interpreted “shall” to mean “must,” Bufkin asserts that the use of “shall” in Subsection (b)(1) imposes a mandatory requirement for the Veterans Court to review the application of the benefit-of-the-doubt rule in every appeal. Id. at 28, 29. Therefore, Bufkin asserts that this review is required regardless of whether the veteran raises the issue on appeal. Id. at 29. Bufkin further highlights that while subsection (a) limits the court’s review to issues “when presented” and “to the extent necessary,” subsection (b)(1) lacks such limiting language, further indicating that the Veterans Court cannot skip the benefit-of-the-doubt review. Id.
Bufkin emphasizes that identical words and phrases within a statute should be interpreted consistently. Brief for Petitioner at 31–32. Bufkin argues that his interpretation of the use of “shall” in subsection (b)(1) aligns with its use in subsection (b)(2), where it mandates the Veterans Court to apply the harmless-error review to every issue, even if the parties do not contest harmfulness. Id. Bufkin also asserts that the phrase “take due account” in subsection (b)(1) requires the Veterans Court to meaningfully consider the benefit-of-the-doubt rule in its analysis. Id. at 30. Citing Shinseki v. Sanders, Bufkin notes that the Supreme Court emphasized how taking due account could allow one factor to control the outcome, even when other factors suggest a different result. Id. at 31. Bufkin asserts that to maintain consistency between subsections (b)(1) and (b)(2), the Veterans Court must analyze the application of the rule, even if no error was found in subsection (a) analysis, as taking due account of the rule could change the outcome of the issue. Id. at 32. Thus, Bufkin concludes that the Veterans Court cannot bypass the review required by subsection (b)(1), it is a separately required review. Id.
McDonough reiterates that subsection (b)(1) is bound by subsection (a), and therefore, the Veterans Court should only review the application of the benefit-of-the-doubt rule “to the extent necessary to its decision and when presented.” Brief for Respondents at 37. McDonough contends that “to the extent necessary” signifies that the Veterans Court is only required to evaluate the specific legal or factual issues to the extent that the veteran raises, and no more. Id. at 39. While McDonough acknowledges that “shall” imposes a mandatory duty, McDonough asserts that the term must be interpreted in the context of “[i]n making the determinations under subsection (a).” Id. at 21. McDonough contends the “shall” in this context does not mean that the Veterans Court must review every time, but only when the issue is raised. Id. As an example, McDonough proffers that a veteran must assert that the Board erred in weighing evidence on a material issue, at which point the Veterans Court would review the decision for clear error. Id. at 39-40.
McDonough argues the language of “take due account of” in subsection (b)(1) reinforces the Veterans Court’s pre-existing duty under subsection (a), rather than introduces a new, undefined responsibility. Brief for Respondents at 30. While McDonough acknowledges that parallel language in a statute should usually have a consistent meaning, McDonough contends that the different histories of subsection (b)(1) and (b)(2) make the two subsections an exception to the rule. Id. at 36. McDonough points out that the language in subsection (b)(2) is taken from other laws, so subsection (b)(2) should operate in a manner consistent with the laws from which it originated; whereas, subsection (b)(1) is unique to the veterans’ benefits context and should operate only in a manner consistent with its plain language. Id. Therefore, McDonough concludes that the language of subsection (b)(1) does not create an independent duty for the Veterans Court to analyze the benefit-of-the-doubt rule, unless raised on appeal. Id.
Discussion
VETERANS’ BENEFITS
In support of Bufkin, the National Law School Veterans Clinic Consortium (“Veterans Legal Clinics”) argues that the benefit-of-the-doubt rule is a part of the “pro-veteran” legislative endeavor to reward veterans for their sacrifices and service to the United States. Brief of Amicus Curiae The National Law School Veterans Clinic Consortium (“Veterans Legal Clinics”), in Support of Petitioners at 3. Veterans Legal Clinics adds that the government’s historical application of this rule signifies Congress’s unique policy judgment in favor of veterans. Id. at 3–5. Moreover, Veterans Legal Clinics contends that Congress intentionally enacted both the VJA and VBA to protect both veterans and their families by providing more leeway for veterans’ claims. Id. Disabled American Veterans assert that failing to recognize the benefit-of-the-doubt rule against this legislative background leads to unequal results in veterans’ claims because similarly situated veterans receive differing treatment. Brief of Amicus Curiae Disabled American Veterans, in Support of Petitioners at 13–15. Furthermore, the National Veterans Legal Services Program and National Organization of Veterans’ Advocates (“NVLSP”) argues that clear-error review creates a backlog of veterans’ cases because lengthy remands are ordered subjecting veterans to further factual development—a phenomenon they term “develop to deny.” Brief of Amici Curiae National Veterans Legal Services Program and National Organization of Veterans’ Advocates (“NVLSP”), in Support of Petitioners at 10–12. In other words, the NVLSP argues that clear-error review contravenes the legislative intent behind its creation of both the Board and the Veterans Court to reduce such case delays. Id.
McDonough counters that veterans’ claims should only be given the benefit of the doubt in certain circumstances. Brief for Respondents, Denis McDonough at 33–34. McDonough concedes that the veterans’ benefits system is generally protective of veterans but contends that this protection does not extend to every inquiry in the appeals court. Id. at 33. According to McDonough, Congress’ intent was not for the benefit-of-the-doubt rule to broadly apply to claims on appeal. Id. McDonough states that the Court’s application of a pro-veteran viewpoint favoring veteran claimants should be applied on appeal only when the VA clearly erred in their ruling. Id. at 36–37. Instead, McDonough states that the Veterans’ Court should primarily rely on administrative law principles when reviewing claims on appeal. Id. at 30.
SEPARATION OF POWERS
In support of Bufkin, the Military-Veterans Advocacy argues that the Federal Circuit’s current application of the benefit-of-the-doubt rule gives undue power to an agency, the VA, by allowing it to rule on on legal matters a court should rule decide. Brief of Amicus Curiae Military-Veterans Advocacy, in Support of Petitioners at 16–19. The Military-Veterans Advocacy cautions that this application of the rule leaves questions of law in the hands of an agency, as the VA would solely decide whether the benefit-of-the-doubt rule applies, rather than the Veterans Court. Id. at 15–16. The National Veterans Legal Services Program further argues that the Veterans Court’s misuse of 38 U.S.C. § 7261(b)(1) causes an agency to engage in legal analyses that it should not participate in without review. Brief of NVLSP at 15–18.
McDonough argues that the benefit-of-the-doubt rule is appropriate for the VA to apply without court review because agencies can make final decisions about factual inquiries. Brief for Respondent at 23–24. McDonough contends that assessing credibility, competence, and reliability, should be left to agencies to decide, and does not require court intervention. Id. at 23. Furthermore, McDonough notes that the VA’s current capabilities are appropriate because agencies function similarly to courts in other civil litigation contexts when deciding factual inquiries or inquiries involving both fact and law. Id. at 24–25.
Conclusion
Acknowledgments
Additional Resources
● Jimmy Hoover, Justices Will Decide If Vets Are Getting the 'Benefit of the Doubt', The National Law Journal (Apr. 30, 2024).
● Sarah Barker, Supreme Court to Rule on Benefit of the Doubt Rule in Veterans’ Benefits Cases, Mason Veterans and Servicemembers Legal Clinic (May 13, 2024).