Veterans’ Benefits at the Supreme Court: The Battle Over Benefit-of-the-Doubt

by Dennis Crouch

In April 2024, the Supreme Court granted certiorari in the consolidated cases of Bufkin v. McDonough and Thornton v. McDonough, two veterans’ benefits cases on appeal from the Court of Appeals for the Federal Circuit. The cases involve the “benefit-of-the-doubt” rule, a longstanding principle that is codified in veterans law that requires the VA to resolve close or unclear issues in a veteran’s favor when adjudicating benefits claims. [SCT Docket]

Both Bufkin and Thornton are veterans who were denied disability benefits by the VA. Bufkin sought service connection for PTSD based on conflicting medical opinions, while Thornton sought a higher disability rating for his already service-connected PTSD. In both cases, the VA found the evidence against the veterans’ claims to be more probative, and the Board of Veterans’ Appeals affirmed. In both cases, the VA essentially determined that the evidence against the veterans’ claims was stronger, more credible, and entitled to greater weight than the evidence in favor of the claims.

On appeal to the Court of Appeals for Veterans Claims (CAVC), Bufkin and Thornton argued that the VA had failed to properly apply the benefit-of-the-doubt rule under 38 U.S.C. § 5107(b). That statute provides: ” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” The CAVC’s scope of review is governed by 38 U.S.C. § 7261. Under § 7261(a), the CAVC reviews adverse VA findings of fact under the “clearly erroneous” standard. Section 7261(b) further provides that in making determinations under subsection (a), the CAVC “shall take due account of the Secretary’s application of section 5107(b),” the benefit-of-the-doubt rule.

The CAVC affirmed the Board’s decisions, finding no clear error in the VA’s weighing of the evidence and concluding the benefit-of-the-doubt rule did not apply because the evidence was not in “approximate balance.” On further appeal, the Federal Circuit also affirmed, writing in Thornton that § 7261(b)’s requirement to “take due account” of the VA’s application of § 5107(b) “does not require the Veterans Court to conduct any review of the benefit of the doubt issue beyond the clear error review” of factual issues already required by § 7261(a).

In their Supreme Court petition, Bufkin and Thornton argue this interpretation renders § 7261(b) superfluous and frustrates Congress’s intent for the CAVC to ensure veterans received the benefit of the doubt. They contend § 7261(b) requires the CAVC to independently review the entire record to determine if the benefit-of-the-doubt rule was properly applied to any material issue, regardless of whether the veteran specifically alleges factual error. The government disagrees, arguing the Federal Circuit properly harmonized § 7261(b) with the limited scope of review prescribed by § 7261(a) and (c).

In an amicus brief filed by University of Missouri Professor Brent Filbert, the National Law School Veterans Clinic Consortium argues the history and codification of the benefit-of-the-doubt rule support meaningful judicial oversight of its application. The brief contends that allowing the Federal Circuit’s narrow interpretation to stand would insulate VA errors from judicial correction and deprive veterans of the favorable standard of proof Congress intended. It notes the rule is invoked in thousands of Board decisions each year, underscoring the need for CAVC scrutiny. Finally, it argues that under well-established principles of statutory interpretation, the CAVC’s obligation to “take due account” of the benefit-of-the-doubt rule must be construed the same way as its prejudicial-error review under § 7261(b)(2), i.e., based on full record review in each case.

A ruling for the petitioners would empower the CAVC to serve as a more robust check on the VA’s application of this veteran-friendly standard of proof. But such a holding could also significantly increase the CAVC’s workload and inject the Court more deeply into reweighing evidence in benefits cases. Conversely, a ruling for the government would limit the CAVC’s review to situations where the veteran alleges specific factual errors by the Board. While preserving the limited nature of appellate review in such cases, this outcome risks insulating erroneous VA applications of the benefit-of-the-doubt rule from judicial scrutiny and correction.

Although the precise question presented has not been previously decided by the Supreme Court, there is a body of precedent that will help guide the decision. The Court has previously interpreted other provisions of § 7261 which set forth the standard of review the Veterans Court must apply. Most notably, in Shinseki v. Sanders, 556 U.S. 396 (2009), the Court construed § 7261(b)(2), the sister provision to § 7261(b)(1) at issue here. The Court held that the instruction in § 7261(b)(2) to “take due account of the rule of prejudicial error” requires the Veterans Court to apply the same kind of harmless error analysis that courts ordinarily apply in civil cases. The Court explained that this requires a case-specific application of judgment based on examination of the record.

Petitioners argue that the plain language of § 7261(b)(1), which requires the Veterans Court to “take due account of the Secretary’s application of section 5107(b),” mandates a similar record-based review to ensure the veteran received the benefit of the doubt on any close factual issues. The petitioners also point to the pro-veteran canon recognized in cases like Henderson v. Shinseki, 562 U.S. 428 (2011), under which interpretive doubt is to be resolved in the veteran’s favor. The government, in contrast, contends that the Federal Circuit properly interpreted § 7261(b)(1) as requiring nothing beyond the substantial evidence review of factual issues already required by § 7261(a). The Court’s ultimate resolution will likely turn on its view of the plain meaning of § 7261(b)(1), in light of the overall statutory structure and the pro-veteran principles that have traditionally guided interpretation in this area.

The Supreme Court’s decision in Bufkin and Thornton could have significant practical implications for veterans, the VA, and the CAVC. If the Court adopts the petitioners’ broader interpretation of § 7261(b)(1), it would likely result in more veterans receiving the benefit of the doubt on close issues and being awarded service connection or higher disability ratings – with the result of providing vital support to many veterans in need.  However, it would also increase the VA’s benefits expenditures, potentially straining its budget and resources.  The VA may also be concerned with having to deal with more oversight.  Moreover, requiring the CAVC to independently review the entire record in every case to determine if the benefit-of-the-doubt rule was correctly applied could also significantly expand the Court’s workload and potentially slow the adjudication of appeals, especially if this requires the CAVC to engage in a more searching analysis of the evidence.

Merits briefing will continue throughout the summer with Bufkin and Thorton’s brief due in early July and the Government response due August 20, 2024.