Veterans take another battle to the U.S. Supreme Court

Many of the nation’s veterans have fought battles with the federal agency responsible for awarding benefits for their service-connected injuries and illnesses. This week, the veterans fight again, but in the U.S. Supreme Court.

Over the years, their battles with the U.S. Department of Veterans Affairs often involved complaints about an unwieldy, lengthy, ultimately unfair, claims process that seemed to defeat the intention to create a non-adversarial, veteran-friendly system. Over time, Congress did respond to some veterans’ complaints and lawsuits.

One important change was Congress’ creation in 1988 of the U.S. Court of Appeals for Veterans Claims. That court is tasked with hearing veterans’ appeals from allegedly erroneous decisions on their claims by the department’s board of veterans appeals. The backstop to that court is the U.S. Court of Appeals for the Federal Circuit.

Joshua Bufkin, an Air Force veteran, and Norman Thornton, an Army veteran, separately sought disability benefits for service-connected, post-traumatic stress disorder. Their claims were denied by the board of veterans appeals and those decisions were subsequently affirmed by the Veterans Court.

In Bufkin v. McDonough at the Supreme Court, the two veterans argue that the Veterans Court and the Federal Circuit has been misapplying a federal rule that is central to review of veterans’ claims, “but its practical benefit to veterans is being eroded by the Federal Circuit’s narrow reading of the scope and standard of review available to veterans at the Court of Appeals for Veterans Claims,” according to an amicus brief by a group of lawyers who frequently represent veterans pro bono.

For more than 100 years, veterans have been entitled to the benefit of the doubt on any close issue material to their eligibility for service-related benefits. When Congress created the Veterans Court in 1988, it wrote the benefit-of-the-doubt rule into the 1988 act. The rule states: “w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary [of Veterans Affairs] shall give the benefit of the doubt to the claimant.” 

In 2002, Congress added something like an exclamation point to the law, stating that in deciding every appeal, the Veterans Court “shall review the record of proceedings and “shall take due account of the Secretary’s application of [the benefit-of-the-doubt statute].” This provision, according to legislative reports, was adopted to give “full force to the ‘benefit of the doubt’ provision’” by empowering the Veterans Court to conduct more “searching appellate review” of department decisions.

“The rule that the veteran, not the government, receives the benefit of the doubt in a close case is among the most fundamental and longstanding precepts in our veterans’ benefits system,” wrote Melanie Bostwick, who represents Bufkin and Thornton. “This standard of proof, unlike any other in civil or criminal litigation, reflects a core societal judgment that it is better to err on the side of providing benefits to those who sacrificed their own interests on behalf of the nation.”

Her clients have drawn supporting amicus briefs from Disabled American Veterans, Military-Veterans Advocacy, National Veterans Legal Services Program (NVLSP), and the Federal Circuit Bar Association, whose members practice before the Federal Circuit and represent or facilitate pro bono counsel for veterans.

Bufkin and Thornton argue that the Veterans Court is required to make an independent, non-deferential review of the evidence before the department to determine whether there were close issues on which the veteran should have received the benefit of the doubt. The Veterans Court, they contend, is not taking that hard, independent look.  It is only examining the underlying factual findings for deferential clear error — “something already required elsewhere in the veterans’ review statute.” The Federal Circuit has agreed with the Veterans Court that clear error review is all that is required.

The Biden Administration counters that the Secretary’s decision that the evidence on a material issue is not in “approximate balance,” is itself a factual finding and so is subject only to review for clear errors. If a claimant challenges the board’s weighing of the evidence on a material issue, and the Veterans Court concludes that the Secretary’s approximate-balance determination is not clearly erroneous, the government contends, the court has taken “due account” of the Secretary’s application of the benefit-of-the-doubt rule.

The National Veterans Legal Services Program argues that the text and structure of the law indicate, the “take due account” provision requires the Veterans Court to separately consider the Secretary’s application of the benefit-of-the-doubt rule, and that  would improve outcomes for veterans and reduce delays in the benefits application and review process.

“Case backlogs have increased as remands from the Veterans Court congest the [Board of Veterans Appeals] docket, and veterans are forced to wait even longer for resolution” wrote D. Shayon Ghosh for the NVLSP.  “In short, veterans organizations like NVLSP have explained to Congress that the Veterans Court’s toothless review of the benefit-of-the-doubt rule regularly resulted in misapplication of that rule and unnecessary remands that cost veterans valuable time.”

What is the proper standard of judicial review is a technical, even wonky, issue. And may not make for the most scintillating oral arguments. But, as the veterans’ challenge here shows, the answer can be critical to the outcome of questions with often huge significance in someone’s life. The justices will hear arguments on Oct. 16. You can tune in by going to https://www.supremecourt.gov and clicking on live audio.

 Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.