Veterans Court Review Process for Disability Benefits Clarified

Facts of the Case

The court opinion outlines two cases of veterans seeking review of the Board of Veterans’ Appeals benefit-of-the-doubt rule for service-connected disability benefits. In the first case, petitioner Joshua Bufkin, an Air Force veteran who served from late 2005 to early 2006, received a nonprejudicial hardship discharge after he reported that his wife threatened suicide if he remained in the military. Mr. Bufkin sought disability benefits seven years postdischarge for posttraumatic stress disorder (PTSD). He supported the claim through a letter submitted by a VA physician who diagnosed Mr. Bufkin with PTSD because of stress caused by his wife’s suicidality during his military service.

Mr. Bufkin’s claim for disability benefits based on PTSD was denied by the VA regional office, who cited insufficient evidence and ordered a second examination. The second physician determined that Mr. Bufkin did not meet criteria for PTSD and critiqued the first physician for not reviewing Mr. Bufkin’s military or medical records. The VA regional office reviewed the new information and reaffirmed its denial.

Mr. Bufkin challenged the ruling under the benefit-of-the-doubt rule, which directs the VA to err on the side of the veteran when there is an approximate balance of positive and negative evidence. A third VA examination was completed, which concurred with the results of the second physician. The VA regional office again denied disability benefits, which was challenged to the Board of Veterans’ Appeals. While in review, Mr. Bufkin submitted a letter from a fourth physician who opined that Mr. Bufkin had PTSD but qualified that other doctors might disagree with the diagnosis and that, at a minimum, Mr. Bufkin had a severe anxiety disorder. The board denied the appeal and explained that, after reviewing the evidence, there was not an approximate balance; therefore, Mr. Bufkin was not entitled to the benefit-of-the-doubt rule.

In the second case, Noman Thornton, an Army veteran who served from 1988 to 1991, sought increased disability benefits. After his discharge in 1991, he was granted disability benefits for an “undiagnosed illness.” Mr. Thornton later petitioned for additional benefits related to service-connected PTSD. Mr. Thornton received the disability benefits claim, initially at 10 percent then increased to 30 percent. In 2015, Mr. Thorton sought another increase in benefits. He was evaluated by a VA physician who noted that Mr. Thornton had a depressed mood, anxiety, memory loss, and sleep impairment. But the physician questioned whether PTSD was the cause of these symptoms. Despite this, Mr. Thornton was awarded a 50 percent PTSD disability rating. Mr. Thornton then sought an increase to 70 percent, but the regional office declined and maintained him at 50 percent. The request was sent to the Board of Veterans’ Appeals, who reviewed the evidence de novo and declined the disability increase.

Mr. Bufkin and Mr. Thornton separately challenged the board’s rulings to the court of appeals for veterans claims. The court of appeals affirmed the board’s rulings in both cases. The petitioners then appealed to the U.S. Court of Appeals for the Federal Circuit, arguing that the veterans court, under statutory command, was required to take due account of the VA’s application of the benefit-of-the-doubt rule by conducting a de novo record review and coming to its own conclusion as to whether the evidence was an approximate balance. The Federal Circuit rejected the argument and affirmed the veterans court ruling. The U.S. Supreme Court granted certiorari to assess what it means to take due account of the VA’s application of the benefit-of-the-doubt rule.

Ruling and Reasoning

The U.S. Supreme Court, in a decision authored by Justice Thomas, affirmed the judgment of the U.S. Court of Appeals. The supporting justices provided reasoning that, under 38 U.S.C. § 7261(b)(1)(2002), the standards for review of the benefit-of-the-doubt rule were straightforward. The veterans court takes due account of the VA’s conclusions by completing a de novo review of the evidence and assessing findings of fact for clear error.

The Court explored the appropriate standard for challenging the application of the benefit-of-the-doubt rule. As the rule contains both factual and legal components, it was determined that any aspect of the VA’s application may be challenged by a veteran on appeal. But in typical arguments, such as in the cases of Mr. Bufkin and Mr. Thornton, the question was in regard to how the VA conducts the approximate balance of evidence. This was determined to be a predominately factual question subject to clear error review.

In the first step of the approximate balance determination, the VA reviews each item of evidence and assigns a value to it. This step is only reviewed for clear error. The VA then looks at the evidence as a whole and decides whether there is an approximate balance between the positive and negative evidence. When there is an approximate balance, the VA gives the benefit of the doubt to the veteran. If there is not an approximate balance, the problem is resolved to the side with the stronger evidence. This step contains both legal and factual components. The factual component is related to placing a value on items of evidence. After assigning a value to each item, the VA must determine whether the evidence meets the legal standard for approximate balance. For the cases presented, Justice Thomas wrote that the process was “about as factual sounding” as possible and thus a clear error review was sufficient when considering an appeal.

The Court majority rejected the petitioners’ viewpoint that the approximate balance determination was primarily a legal question subject to de novo review under § 7261(a). The petitioners attempted to draw a comparison between the approximate balance determination and other legal questions that courts review de novo, such as probable cause. This comparison was rejected, as probable cause is a constitutional standard and requires substantial legal work. Thus, a de novo review regarding probable cause cases is essential in those cases, but not with the VA’s approximate balance test.

Dissent

Justice Jackson, joined by Justice Gorsuch, stated that clear error review of whether the VA properly applied the benefit-of-the-doubt rule was the incorrect standard. They asserted that the benefit-of-the-doubt rule was a mixed question of law and fact and, as a result, subject to de novo review on appeal. They expressed concern that the court of appeals for veterans claims was “rubberstamping” decisions made by the VA and was not doing anything more than deferring to the agency’s decisions notwithstanding clear error problems. Justice Jackson argued that taking due account required a nondeferential review of the appeal to minimize the risk that a veteran with a borderline claim will be improperly denied benefits.

The dissent supported their opinion with similar concerns by Congress, who in 1988, passed 38 U.S.C. § 5107(b)(1988), which gave the benefit of the doubt to veterans when there was an approximate balance of positive and negative evidence. Congress then gave judicial review to the veterans court under Section 7261(a). But veterans complained that the judicial review by veterans court was inappropriately deferential. Congress responded in 2002 by requiring veterans court to take due account of the VA’s application of the benefit-of-the-doubt rule.