Petition for Writ of Certiorari — Joe A. Lynch, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

App. 1a

United States Court of Appeals

for the Federal Circuit

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JOE A. LYNCH,

Claimant-Appellant

v.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

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2020-2067

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Appeal from the United States Court of Appeals

for Veterans Claims in No. 19-3106, Senior Judge

Mary J. Schoelen.

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Decided: December 17, 2021

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(Filed Dec. 17, 2021)

MARK RYAN LIPPMAN, The Veterans Law Group,

Poway, CA, argued for claimant-appellant. Also represented by KENNETH M. CARPENTER, Law Offices of

Carpenter Chartered, Topeka, KS; ADAM R. LUCK,

Gloverluck, LLP, Dallas, TX.

EVAN WISSER, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for respondent-appellee. Also

represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN,

App. 2a

MARTIN F. HOCKEY, JR.; CHRISTOPHER O. ADELOYE, Y.

KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe LLP, Washington, DC, for amicus curiae MilitaryVeterans Advocacy Inc. Also represented by Melanie

Hallums, Wheeling, WV; JOHN B. WELLS, Law Office of

John B. Wells, Slidell, LA.

STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP

(US), San Diego, CA, for amici curiae Swords to Plowshares, Connecticut Veterans Legal Center. Also represented by EDWARD HANOVER, East Palo Alto, CA; JESSE

MEDLONG, San Francisco, CA.

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Before DYK, CLEVENGER, and PROST, Circuit Judges.

MOORE, Chief Judge, LOURIE, DYK, PROST, TARANTO,

CHEN, HUGHES, STOLL, and CUNNINGHAM, Circuit

Judges, have joined Part II.B of this opinion.

Opinion concurring in part and dissenting in part

from Part II.B filed by Circuit Judge REYNA, in

which Circuit Judges NEWMAN and O’MALLEY join.

PROST, Circuit Judge.

Joe A. Lynch appeals the final decision of the

United States Court of Appeals for Veterans Claims

(“Veterans Court”) affirming the Board of Veterans’

Appeals’ (“Board”) denial of his claim for a disability

rating greater than 30% for service-connected posttraumatic stress disorder (“PTSD”). Lynch v. Wilkie,

App. 3a

No. 19-3106, 2020 WL 1899169 (Vet. App. Apr. 17, 2020)

(“Decision”). In affirming the Board’s denial, the Veterans Court relied on Ortiz v. Principi, 274 F.3d 1361,

1364 (Fed. Cir. 2001), to determine that the “benefit of

the doubt rule” under 38 U.S.C. § 5107(b) did not apply

to Mr. Lynch’s claim. Mr. Lynch argues that Ortiz departs from the “approximate balance” of the evidence

standard, as set forth in 38 U.S.C. § 5107(b), to trigger

the benefit-of-the-doubt rule, and that Ortiz was therefore wrongly decided. Today’s opinion, considered and

decided in part by the court en banc, addresses Ortiz.

BACKGROUND

Mr. Lynch is a veteran who served on active duty

in the United States Marine Corps from July 1972 to

July 1976. In March 2015, Mr. Lynch presented for

counseling upon the recommendation of his veteran

peer group and was evaluated on two separate occasions by Dr. Gwendolyn Newsome, a private psychologist. Mr. Lynch described symptoms, including phobias

about confined spaces, panic attacks, memory problems, mood swings, frequent nightmares, antisocial behaviors, and depression. J.A. 25–26. He attributed these

symptoms to intrusive memories from his time in service and completed the military version of the PTSD

Checklist. J.A. 25–26. Dr. Newsome reported that Mr.

Lynch’s symptoms and the results of the PTSD Checklist supported a diagnosis of PTSD. J.A. 25–26.

In March 2016, Mr. Lynch filed a claim of entitlement to PTSD, accompanied by Dr. Newsome’s report,

App. 4a

with the Department of Veterans Affairs (“VA”). In August 2016, Mr. Lynch underwent a VA PTSD examination. The VA examiner confirmed the diagnosis of

PTSD but reported that Mr. Lynch’s PTSD did not result in symptoms that were severe enough to interfere

with occupational or social functioning or to require

continuous medication. J.A. 18, 39. The examiner reviewed Dr. Newsome’s report but noted that the level

of impairment observed by Dr. Newsome was not observed or reported during the VA examination. J.A. 39,

44. The relevant regional office (“RO”) of the VA subsequently granted Mr. Lynch’s PTSD claim with a 30%

disability rating.

In October 2016, Mr. Lynch filed a Notice of Disagreement with the RO disputing the 30% disability

rating. In support, Mr. Lynch submitted two additional

psychological evaluations conducted by a private psychiatrist, Dr. H. Jabbour. See J.A. 49, 58. In July 2017,

Mr. Lynch underwent a second VA PTSD examination.

The examiner documented Mr. Lynch’s symptomatology and addressed the conflicting medical opinions regarding the severity of Mr. Lynch’s symptoms, noting,

for example, that some of Dr. Jabbour’s conclusions

“were more extreme than what was supported by available evidence.” J.A. 60. In August 2017, the RO continued Mr. Lynch’s 30% disability rating.

Mr. Lynch appealed to the Board, arguing that the

RO assigned too low a rating for his PTSD because his

symptoms are worse than those contemplated by the

assigned 30% rating. The Board denied Mr. Lynch’s appeal, finding that based on the record—including the

App. 5a

evaluations conducted by Dr. Newsome, Dr. Jabbour,

and the two VA examiners—“[Mr. Lynch] does not have

social and occupational impairment manifested by reduced reliability and productivity” that would warrant

a disability rating greater than 30% for PTSD. See J.A.

20. The Board noted that “[Mr. Lynch’s] private examiners have described more severe impairment than

that identified by the VA examiners; however, those

findings are not supported by the subjective symptoms

provided by [Mr. Lynch].” J.A. 21. The Board concluded

that “the preponderance of the evidence is against the

claim and entitlement” for a disability rating greater

than 30% for PTSD. J.A. 21.

Mr. Lynch then appealed the Board’s decision to

the Veterans Court, arguing in relevant part that the

Board misapplied 38 U.S.C. § 5107(b) and wrongly

found that he was not entitled to the “benefit of the

doubt.” See Decision, 2020 WL 1899169, at *3. The benefit-of-the-doubt rule is codified at 38 U.S.C. § 5107,

which provides:

The Secretary shall consider all information

and lay and medical evidence of record in a

case before the Secretary with respect to benefits under laws administered by the Secretary. 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.

38 U.S.C. § 5107(b) (emphasis added). The implementing regulation in turn provides:

App. 6a

When, after careful consideration of all procurable and assembled data, a reasonable

doubt arises regarding service origin, the

degree of disability, or any other point, such

doubt will be resolved in favor of the claimant.

By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not

satisfactorily prove or disprove the claim.

38 C.F.R. § 3.102 (emphasis added).

The Veterans Court rejected Mr. Lynch’s assertion

that he was entitled to the benefit of the doubt and affirmed the Board’s decision, reasoning that “the doctrine of reasonable doubt . . . d[oes] not apply here

because the preponderance of the evidence is against

the claim.” Decision, 2020 WL 1899169, at *5 (internal

quotation marks omitted). In support of its reasoning,

the Veterans Court relied on Ortiz, which stated that

“the benefit of the doubt rule is inapplicable when the

preponderance of the evidence is found to be against

the claimant.” 274 F.3d at 1364. Mr. Lynch now appeals

the Veterans Court’s decision.

DISCUSSION

I

We have limited jurisdiction to review decisions

by the Veterans Court. Under 38 U.S.C. § 7292(d)(2),

except to the extent that an appeal presents a constitutional issue, we may not “review (A) a challenge to a

factual determination, or (B) a challenge to a law or

App. 7a

regulation as applied to the facts of a particular

case.” But we may “review and decide any challenge to

the validity of any statute or regulation or any interpretation thereof” and “interpret constitutional and

statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). And “we have

authority to decide whether the Veterans Court applied the correct legal standard.” Lamour v. Peake, 544

F.3d 1317, 1321 (Fed. Cir. 2008). We review the Veterans Court’s legal determinations de novo. Gazelle v.

Shulkin, 868 F.3d 1006, 1009 (Fed. Cir. 2017).

II

Mr. Lynch raises two issues on appeal. He argues

that Ortiz was wrongly decided because it sets forth an

“equipoise of the evidence” standard to trigger the

benefit-of-the-doubt rule and that this decreased his

chance of receiving a disability rating greater than

30% for PTSD. See Appellant’s Br. 12–13. According to

Mr. Lynch, Ortiz read the modifier “approximate” out

of the term “approximate balance” set forth in 38

U.S.C. § 5107(b) by requiring an equal or even balance

of the evidence to give the benefit of the doubt to the

claimant. See Appellant’s Br. 16–19. We have jurisdiction under 38 U.S.C. § 7292(a), (c).

Mr. Lynch’s argument is two-pronged. First, he

suggests that Ortiz expressly requires equipoise of the

evidence for a claimant to receive the benefit of the

doubt. Second, he contends that Ortiz’s statement that

“the benefit of the doubt rule is inapplicable when the

App. 8a

preponderance of the evidence is found to be against

the claimant,” 274 F.3d at 1364, is contrary to the statutory “approximate balance” standard.

A

Contrary to Mr. Lynch’s suggestion that Ortiz sets

forth an equipoise-of-the-evidence standard to trigger

the benefit-of-the-doubt rule, Ortiz explicitly gives

force to the modifier “approximate” as used in 38 U.S.C.

§ 5107(b). Ortiz found § 5107(b) to be “clear and unambiguous on its face” and recited dictionary definitions

of the words “approximate” and “balance” in concluding that under the statute “evidence is in approximate

balance when the evidence in favor of and opposing the

veteran’s claim is found to be almost exactly or nearly

equal.” 274 F.3d at 1364 (cleaned up). Thus, Ortiz necessarily requires that the benefit-of-the-doubt rule

may be triggered in situations other than equipoise of

the evidence—specifically, situations where the evidence is “nearly equal,”1 i.e., an “approximate balance”

of the positive and negative evidence as set forth in

§ 5107(b) and 38 C.F.R. § 3.102. Ortiz, 274 F.3d at

1364–65; see also Best Power Tech. Sales Corp. v. Austin, 984 F.2d 1172, 1177 (Fed. Cir. 1993) (“It is a basic

principle of statutory interpretation . . . that undefined

terms in a statute are deemed to have their ordinarily

1

Although Ortiz also uses the words “too close to call” and a

“tie goes to the runner” analogy in discussing the term “approximate balance,” the case makes clear that it goes further than

mere ties—“nearly equal” evidence triggers the benefit-of-thedoubt rule. 274 F.3d at 1364–65.

App. 9a

understood meaning. For that meaning, we look to the

dictionary.” (first citing United States v. James, 478

U.S. 597, 604 (1986); and then citing Bd. of Educ. v.

Mergens, 496 U.S. 226, 237 (1990))).

Mr. Lynch further suggests that, post-Ortiz, this

court has “interpreted the benefit-of-the-doubt rule as

setting forth an absolute equality-of-the-evidence or

equipoise-of-the-evidence standard.” Reply Br. 3 (citing

Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir.

2009)). Mr. Lynch is mistaken. Skoczen interpreted 38

U.S.C. § 5107(a), not 38 U.S.C. § 5107(b), and merely

referred to the § 5107(b) standard in passing dicta.

Skoczen, 564 F.3d at 1324. Accordingly, Skoczen does

nothing to disturb Ortiz.

Amicus curiae Military-Veterans Advocacy Inc.

(“MVA”) argues that in certain decisions citing Ortiz,

the Veterans Court has articulated an equipoise-ofthe-evidence threshold for giving the veteran the benefit of the doubt. See MVA Br. 8. In isolated cases, that

may be so. See, e.g., Chotta v. Peake, 22 Vet. App. 80, 86

(2008) (stating that “[if ] the evidence is not in equipoise . . . the benefit of the doubt rule would not apply”). The Veterans Court’s recitation in Chotta of the

standard is incorrect.2

So, let us be clear. Under § 5107(b) and Ortiz, a

claimant is to receive the benefit of the doubt when

2

This misstep in Chotta does not appear to have negatively

affected that veteran’s case. See 22 Vet. App. at 86 (vacating and

remanding on the basis that the Board failed to consider certain

lay evidence of record).

App. 10a

there is an “approximate balance” of positive and negative evidence, which Ortiz interpreted as “nearly

equal” evidence. This interpretation necessarily includes scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put

differently, if the positive and negative evidence is in

approximate balance (which includes but is not limited

to equipoise), the claimant receives the benefit of the

doubt.

B3

As to whether Ortiz correctly concluded that the

benefit-of-the-doubt rule does not apply when “the preponderance of the evidence is found to be against the

claimant,” 274 F.3d at 1364, Mr. Lynch argues that

Ortiz was wrongly decided because “the totality of the

. . . evidence can both preponderate in one direction

and be nearly or approximately in balance,” Reply Br.

3. Mr. Lynch contends that “these two standards cannot co-exist” and that therefore Ortiz eliminates any

meaning of the word “approximate” in § 5107(b). Reply

Br. 3. Ortiz rejected such reasoning, stating that “if the

Board is persuaded that the preponderant evidence

weighs either for or against the veteran’s claim, it necessarily has determined that the evidence is not

‘nearly equal’ . . . and the benefit of the doubt rule

therefore has no application.” 274 F.3d at 1365. On that

3

The earlier opinion in this case, reported at 999 F.3d 1391

(Fed. Cir. 2021), is withdrawn, and this opinion substituted therefor. Part II.B of this opinion has been considered and decided by

the court en banc. See Order in this case issued this date.

App. 11a

basis, the panel ruled on this issue that it was bound

by Ortiz.

Ortiz correctly established that the benefit-ofthe-doubt rule does not apply when a factfinder is

persuaded by the evidence to make a particular finding. See 274 F.3d at 1365–66. And Ortiz made clear

that, under its formulation, a finding by “the preponderance of the evidence” reflects that the Board “has

been persuaded” to find in one direction or the other.

274 F.3d at 1366. But Ortiz’s preponderance-of-the-evidence formulation—while correctly viewing the issue

as one of persuasion—nonetheless could confuse because other cases link “preponderance of the evidence”

to the concept of equipoise. E.g., Medina v. California,

505 U.S. 437, 449 (1992) (stating that preponderanceof-the-evidence burden matters “only in a narrow class

of cases where the evidence is in equipoise”); see also

Goldman Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141

S. Ct. 1951, 1963 (2021). Accordingly, to eliminate the

potential for confusion going forward, we depart from

Ortiz’s “preponderance of the evidence” language and

determine that the benefit-of-the-doubt rule simply applies if the competing evidence is in “approximate balance,” which Ortiz correctly interpreted as evidence

that is “nearly equal.”4

4

The dissent characterizes the majority opinion as reinstituting the preponderance of the evidence standard under a different linguistic formulation. Dissent at 1–2. That is not a correct

characterization of the majority opinion.

App. 12a

As a corollary, evidence is not in “approximate balance” or “nearly equal,” and therefore the benefit-ofthe-doubt rule does not apply, when the evidence persuasively favors one side or the other. To be clear, Ortiz

(and the instant case) were not wrongly decided.5 In

the instant case, for example, the Board made extensive findings that show it was persuaded that Mr.

Lynch was not entitled to a disability rating greater

than 30% for PTSD. See, e.g., J.A. 20–21. And the Veterans Court made plain that the evidence was quite

clearly against the veteran, not in approximate balance.6

CONCLUSION

We have considered Mr. Lynch’s remaining arguments but find them unpersuasive. For the foregoing

reasons, we affirm.

AFFIRMED

5

Indeed, we are not aware of any case that improperly applied Ortiz in an outcome-determinative manner.

6

Today’s change in our construction of § 5107(b) does not

provide grounds for claims of clear and unmistakable error

(“CUE”) for prior Board decisions. CUE “does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change

in the interpretation of the statute or regulation.” 38 C.F.R.

§ 20.1403(e); see also George v. McDonough, 991 F.3d 1227, 1234

(Fed. Cir. 2021) (“CUE must be analyzed based on the law as it

was understood at the time of the original decision and cannot

arise from a subsequent change in the law or interpretation

thereof.”).

App. 13a

COSTS

No costs.

REYNA, Circuit Judge, with whom NEWMAN and

O’MALLEY, Circuit Judges, join, concurring-in-part and

dissenting-in-part from Part II.B.

Today the court takes en banc action directed to

this court’s precedent articulated in Ortiz v. Principi,

274 F.3d 1361 (Fed. Cir. 2001). The purpose of the en

banc action is to “clarify” the court’s holding in Ortiz.

The result is that the court departs from its holding

in Ortiz and sets a new analytical standard for applying the benefit-of-the-doubt rule under 38 U.S.C.

§ 5107. I agree with the court’s decision to reject the

preponderance of evidence standard set in Ortiz. I cannot, however, agree with the court’s installment of a

“persuasion of evidence standard,’’ and the refusal to

overturn Ortiz in its entirety. For the reasons stated

below, I concur-in-part and dissent-in-part from the decision of the court.

The majority rejects the preponderance of the evidence rule established in Ortiz. Maj. Op. 9. I agree that

our holding in Ortiz required fixing. This is because

Ortiz carries the potential for withholding benefits

from veterans to which they are otherwise entitled. By

providing clarification, the court recognizes the remedial nature of veterans’ benefits law, as intended by

Congress—including through its statutory expression

of the veterans’ benefit-of-the-doubt rule. Today’s

App. 14a

opinion, therefore, is a step in the right direction, and

I am pleased to take that step with my colleagues.

I dissent, however, from the court’s refusal to recognize that Ortiz was wrongly decided. In Ortiz, the

court held that the benefit-of-the-doubt rule does not

apply in cases where the Board of Veterans’ Appeals

finds that a preponderance of the evidence is against

the veteran’s claim. Ortiz, 274 F.3d at 1365–66. The

court reached this holding after determining that the

statute required no interpretation and upon consulting

dictionaries to construe the meaning of “approximate”

and “balance.” Id. at 1364–65. Today’s en banc decision

acknowledges that the preponderance of the evidence

formulation carries potential confusion. As a result, “to

eliminate the potential for confusion going forward,”

the majority “depart[s] from Ortiz’s ‘preponderance of

the evidence’ language.” Maj. Op. 9. This means two

things. First, the “preponderance of the evidence”

standard is repealed and replaced with a “persuasive

evidence” standard. Id. at 781–82. Second, the analytical structure underpinning the preponderant evidence rule in Ortiz not only remains, but now girds the

persuasive evidence standard. Not only is the persuasive evidence standard, like the preponderance rule,

not contemplated by the statute, but its analytical

framework has as provenance the now-estranged

Ortiz’s preponderant evidence rule. This result is a far

cry from the language contemplated by Congress. Accordingly, I dissent from the court’s adoption of the persuasive evidence standard.

App. 15a

As the court maintains Ortiz’s analytical framework, we must be vigilant against the possibility that

“close cases” may evade review. Where the evidence is

close, but the Department of Veterans Affairs (VA) ultimately determines that the evidence “persuasively”

forecloses a veteran’s claim, the VA can make its determination without explaining that the case was in fact

a close call. Put differently, if the VA internally recognizes the evidence is close but finds in the end that the

evidence “persuasively” precludes the veteran’s claim,

the VA does not need to disclose that the evidence may

have been “close.” There is no requirement to do so, and

the majority opinion does nothing to change this. This

shields such determinations from meaningful appellate review under § 5107(b). This outcome disincentivizes the agency from fulfilling its duty to provide an

adequate administrative record in certain cases and

thus hinders appellate review. See In re Sang Su Lee,

277 F.3d 1338, 1342 (Fed. Cir. 2002) (“For judicial review to be meaningfully achieved . . . , the agency tribunal must present a full and reasoned explanation of

its decision. The agency tribunal must set forth its

findings and the grounds thereof, as supported by the

agency record, and explain its application of the law to

the found facts.”). In my view, the VA should be motivated, if not required, to include a statement and explanation in cases where it concludes the evidence is

not in approximate balance but thought the case a

close call. I would favor such a requirement to ensure

that the question of whether the evidence is in approximate balance under § 5107(b) is meaningfully subject

to appellate review in all cases.

App. 16a

In sum, I concur-in-part and dissent-in-part with

the majority decision. I agree with the decision to repeal the preponderance of evidence rule adopted in

Ortiz. But I disagree with the decision not to overturn

Ortiz in its entirety. I also disagree with the new rule

the majority has minted, the persuasion of evidence

rule, for use in applying the benefit-of-the-doubt provision set out in 38 U.S.C. § 5107.

The words of the statute are no mystery. They are

plain and have common meaning and require no further definition. The imperative nature of the statute is

also clear. In any issue material to the veteran’s claim,

the benefit of the doubt shall go to the veteran.

(b)

Benefit of the Doubt.—

The Secretary shall consider all information

and lay and medical evidence of record in a

case before the Secretary with respect to benefits under laws administered by the Secretary. 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.

38 U.S.C. § 5107(b).

App. 17a

NOTE: THIS ORDER IS NONPRECEDENTIAL.

United States Court of Appeals

for the Federal Circuit

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JOE A. LYNCH,

Claimant-Appellant

v.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

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2020-2067

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Appeal from the United States Court of Appeals

for Veterans Claims in No. 19-3106, Senior Judge Mary

J. Schoelen.

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ON PETITION FOR REHEARING EN BANC

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(Filed Dec. 17, 2021)

Before MOORE, Chief Judge, NEWMAN,

LOURIE, CLEVENGER*, DYK, PROST, O’MALLEY,

REYNA, TARANTO, CHEN, HUGHES, STOLL,

and CUNNINGHAM, Circuit Judges.

* Circuit Judge Clevenger participated only in the decision

on the petition for panel rehearing.

App. 18a

PER CURIAM.

ORDER

Joe A. Lynch filed a petition for rehearing en banc.

A response to the petition was invited by the court and

filed by the Secretary of Veterans Affairs. The court also

accepted an amicus brief filed by Military-Veterans Advocacy Inc. The petition was first referred as a petition

for panel rehearing to the panel that heard the appeal,

and thereafter the petition for rehearing en banc was

referred to the circuit judges who are in regular active

service. A poll was requested and taken, and the court

decided that the appeal warranted en banc consideration.

Upon consideration thereof,

IT IS ORDERED THAT:

(1)

The petition for panel rehearing is denied.

(2) The petition for rehearing en banc is granted

for the limited purpose of addressing Ortiz v. Principi,

274 F.3d 1361 (Fed. Cir. 2001).

(3) The panel’s judgment and original opinion

entered on June 3, 2021, are vacated and replaced with

the accompanying revised opinion, concurrence-inpart and dissent-in-part, and judgment.

FOR THE COURT

December 17, 2021

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

App. 19a

United States Court of Appeals

for the Federal Circuit

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JOE A. LYNCH,

Claimant-Appellant

v.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

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2020-2067

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Appeal from the United States Court of Appeals

for Veterans Claims in No. 19-3106, Senior Judge Mary

J. Schoelen.

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Decided: Jun. 3, 2021

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(Filed Jun. 3, 2021)

MARK RYAN LIPPMAN, The Veterans Law Group,

Poway, CA, argued for claimant-appellant. Also represented by KENNETH M. CARPENTER, Law Offices of

Carpenter Chartered, Topeka, KS; ADAM R. LUCK,

Gloverluck, LLP, Dallas, TX.

EVAN WISSER, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for respondent-appellee. Also

App. 20a

represented by ERIC P. BRUSKIN, JEFFREY B. CLARK,

ROBERT EDWARD KIRSCHMAN, JR; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of General Counsel, United

States Department of Veterans Affairs, Washington,

DC.

MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe LLP, Washington, DC, for amicus curiae MilitaryVeterans Advocacy Inc. Also represented by JOHN B.

WELLS, Law Office of John B. Wells, Slidell, LA.

STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP

(US), San Diego, CA, for amici curiae Swords to Plowshares, Connecticut Veterans Legal Center. Also represented by EDWARD HANOVER, East Palo Alto, CA; JESSE

MEDLONG, San Francisco, CA.

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Before DYK, CLEVENGER, and PROST*, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST.

Opinion concurring in part and

dissenting in part filed by Circuit Judge DYK.

PROST, Circuit Judge.

Joe A. Lynch appeals the final decision of the

United States Court of Appeals for Veterans Claims

(“Veterans Court”) affirming the Board of Veterans’

Appeals’ (“Board”) denial of his claim for a disability

rating greater than 30% for service-connected posttraumatic stress disorder (“PTSD”). Lynch v. Wilkie,

* Sharon Prost vacated the position of Chief Judge on May

21, 2021.

App. 21a

No. 19-3106, 2020 WL 1899169 (Vet. App. Apr. 17, 2020)

(“Decision”). In affirming the Board’s denial, the Veterans Court relied on Ortiz v. Principi, 274 F.3d 1361,

1364 (Fed. Cir. 2001), to determine that the “benefit of

the doubt rule” under 38 U.S.C. § 5107(b) did not apply

to Mr. Lynch’s claim. Mr. Lynch argues that Ortiz requires equipoise of positive and negative evidence (rather than an “approximate balance” of the evidence as

set forth in 38 U.S.C. § 5107(b)) to trigger the benefitof-the-doubt rule, and that Ortiz was therefore wrongly

decided. Because we disagree with Mr. Lynch’s reading

of Ortiz, and because this panel is bound by Ortiz, we

affirm.

BACKGROUND

Mr. Lynch is a veteran who served on active duty

in the United States Marine Corps from July 1972 to

July 1976. In March 2015, Mr. Lynch presented for

counseling upon the recommendation of his veteran

peer group and was evaluated on two separate occasions by Dr. Gwendolyn Newsome, a private psychologist. Mr. Lynch described symptoms, including phobias

about confined spaces, panic attacks, memory problems, mood swings, frequent nightmares, antisocial behaviors, and depression. J.A. 25–26. He attributed

these symptoms to intrusive memories from his time

in service and completed the military version of the

PTSD Checklist. J.A. 25–26. Dr. Newsome reported

that Mr. Lynch’s symptoms and the results of the

PTSD Checklist supported a diagnosis of PTSD. J.A.

25–26.

App. 22a

In March 2016, Mr. Lynch filed a claim of entitlement to PTSD, accompanied by Dr. Newsome’s report,

with the Department of Veterans Affairs (“VA”). In August 2016, Mr. Lynch underwent a VA PTSD examination. The VA examiner confirmed the diagnosis of

PTSD but reported that Mr. Lynch’s PTSD did not result in symptoms that were severe enough to interfere

with occupational or social functioning or to require

continuous medication. J.A. 18, 39. The examiner reviewed Dr. Newsome’s report but noted that the level

of impairment observed by Dr. Newsome was not observed or reported during the VA examination. J.A. 39,

44. The relevant regional office (“RO”) of the VA subsequently granted Mr. Lynch’s PTSD claim with a 30%

disability rating.

In October 2016, Mr. Lynch filed a Notice of Disagreement with the RO disputing the 30% disability

rating. In support, Mr. Lynch submitted two additional

psychological evaluations conducted by a private psychiatrist, Dr. H. Jabbour. See J.A. 49, 58. In July 2017,

Mr. Lynch underwent a second VA PTSD examination.

The examiner documented Mr. Lynch’s symptomatology and addressed the conflicting medical opinions regarding the severity of Mr. Lynch’s symptoms, noting,

for example, that some of Dr. Jabbour’s conclusions

“were more extreme than what was supported by available evidence.” J.A. 60. In August 2017, the RO continued Mr. Lynch’s 30% disability rating.

Mr. Lynch appealed to the Board, arguing that the

RO assigned too low a rating for his PTSD because his

symptoms are worse than those contemplated by the

App. 23a

assigned 30% rating. The Board denied Mr. Lynch’s appeal, finding that based on the record—including the

evaluations conducted by Dr. Newsome, Dr. Jabbour,

and the two VA examiners—“[Mr. Lynch] does not have

social and occupational impairment manifested by reduced reliability and productivity” that would warrant

a disability rating greater than 30% for PTSD. See J.A.

20. The Board noted that “[Mr. Lynch’s] private examiners have described more severe impairment than

that identified by the VA examiners; however, those

findings are not supported by the subjective symptoms

provided by [Mr. Lynch].” J.A. 21. The Board concluded

that “the preponderance of the evidence is against the

claim and entitlement” for a disability rating greater

than 30% for PTSD. J.A. 21.

Mr. Lynch then appealed the Board’s decision to

the Veterans Court, arguing in relevant part that the

Board misapplied 38 U.S.C. § 5107(b) and wrongly

found that he was not entitled to the “benefit of the

doubt.” See Decision, 2020 WL 1899169, at *3. The benefit-of-the-doubt rule is codified at 38 U.S.C. § 5107,

which provides:

The Secretary shall consider all information

and lay and medical evidence of record in a

case before the Secretary with respect to benefits under laws administered by the Secretary. 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.

App. 24a

38 U.S.C. § 5107(b) (emphasis added). The implementing regulation in turn provides:

When, after careful consideration of all procurable and assembled data, a reasonable

doubt arises regarding service origin, the degree of disability, or any other point, such

doubt will be resolved in favor of the claimant.

By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not

satisfactorily prove or disprove the claim.

38 C.F.R. § 3.102 (emphasis added).

The Veterans Court rejected Mr. Lynch’s assertion

that he was entitled to the benefit of the doubt and affirmed the Board’s decision, reasoning that “the doctrine of reasonable doubt . . . d[oes] not apply here

because the preponderance of the evidence is against

the claim.” Decision, 2020 WL 1899169, at *5 (internal

quotation marks omitted). In support of its reasoning,

the Veterans Court relied on Ortiz, which held that

“the benefit of the doubt rule is inapplicable when the

preponderance of the evidence is found to be against

the claimant.” 274 F.3d at 1364. Mr. Lynch now appeals

the Veterans Court’s decision.

DISCUSSION

I

We have limited jurisdiction to review decisions

by the Veterans Court. Under 38 U.S.C. § 7292(d)(2),

except to the extent that an appeal presents a

App. 25a

constitutional issue, we may not “review (A) a challenge to a factual determination, or (B) a challenge to

a law or regulation as applied to the facts of a particular case.” But we may “review and decide any challenge

to the validity of any statute or regulation or any interpretation thereof ” and “interpret constitutional and

statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). And “we have

authority to decide whether the Veterans Court applied the correct legal standard.” Lamour v. Peake, 544

F.3d 1317, 1321 (Fed. Cir. 2008). We review the Veterans Court’s legal determinations de novo. Gazelle v.

Shulkin, 868 F.3d 1006, 1009 (Fed. Cir. 2017).

II

Mr. Lynch raises a single issue on appeal. He argues that Ortiz was wrongly decided because it sets

forth an “equipoise of the evidence” standard to trigger

the benefit-of-the-doubt rule and that this decreased

his chance of receiving a disability rating greater than

30% for PTSD. See Appellant’s Br. 12–13. According to

Mr. Lynch, Ortiz read the modifier “approximate” out

of the term “approximate balance” set forth in 38

U.S.C. § 5107(b) by requiring an equal or even balance

of the evidence to give the benefit of the doubt to the

claimant. See Appellant’s Br. 16–19. We have jurisdiction under 38 U.S.C. § 7292(a), (c).

Mr. Lynch’s argument is two-pronged. First, he

suggests that Ortiz expressly requires equipoise of the

evidence for a claimant to receive the benefit of the

App. 26a

doubt. But Ortiz says no such thing. Second, he contends that Ortiz’s holding that “the benefit of the doubt

rule is inapplicable when the preponderance of the evidence is found to be against the claimant,” 274 F.3d at

1364, leaves no space for a claimant to receive the benefit of the doubt unless the positive and negative evidence is in perfect balance. But Ortiz considered and

rejected such reasoning, id. at 1365–66, and this panel

is bound by Ortiz. We further address each prong of Mr.

Lynch’s argument in turn.

A

Contrary to Mr. Lynch’s suggestion that Ortiz sets

forth an equipoise-of-the-evidence standard to trigger

the benefit-of-the-doubt rule, Ortiz explicitly gives

force to the modifier “approximate” as used in 38 U.S.C.

§ 5107(b). Ortiz found § 5107(b) to be “clear and unambiguous on its face” and recited dictionary definitions

of the words “approximate” and “balance” in concluding that under the statute “evidence is in approximate

balance when the evidence in favor of and opposing the

veteran’s claim is found to be almost exactly or nearly

equal.” 274 F.3d at 1364 (cleaned up). Thus, Ortiz necessarily requires that the benefit-of-the-doubt rule

may be triggered in situations other than equipoise of

the evidence—specifically, situations where the evidence is “nearly equal,”1 i.e., an “approximate balance”

1

Although Ortiz also uses the words “too close to call” and a

“tie goes to the runner” analogy in discussing the term “approximate balance,” the case makes clear that it goes further than

App. 27a

of the positive and negative evidence as set forth in

§ 5107(b) and 38 C.F.R. § 3.102. Ortiz, 274 F.3d at

1364–65; see also Best Power Tech. Sales Corp. v. Austin, 984 F.2d 1172, 1177 (Fed. Cir. 1993) (“It is a basic

principle of statutory interpretation . . . that undefined

terms in a statute are deemed to have their ordinarily

understood meaning. For that meaning, we look to the

dictionary.” (first citing United States v. James, 478

U.S. 597, 604 (1986); and then citing Bd. of Educ. v.

Mergens, 496 U.S. 226, 237 (1990))).

Mr. Lynch further suggests that, post-Ortiz, this

court has “interpreted the benefit-of-the-doubt rule as

setting forth an absolute equality-of-the-evidence or

equipoise-of-the-evidence standard.” Reply Br. 3 (citing

Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir.

2009)). Mr. Lynch is mistaken. Skoczen interpreted 38

U.S.C. § 5107(a), not 38 U.S.C. § 5107(b), and merely

referred to the § 5107(b) standard in passing dicta.

Skoczen, 564 F.3d at 1324. Accordingly, Skoczen does

nothing to disturb Ortiz.

Amicus curiae Military-Veterans Advocacy Inc.

(“MVA”) argues that in certain decisions citing Ortiz,

the Veterans Court has articulated an equipoise-ofthe-evidence threshold for giving the veteran the benefit of the doubt. See MVA Br. 8. In isolated cases, that

may be so. See, e.g., Chotta v. Peake, 22 Vet. App. 80, 86

(2008) (stating that “[if ] the evidence is not in equipoise . . . the benefit of the doubt rule would not

mere ties—“nearly equal” evidence triggers the benefit-of-thedoubt rule. 274 F.3d at 1364–65.

App. 28a

apply”). The Veterans Court’s recitation in Chotta of

the standard is incorrect.2

So, let us be clear. Under § 5107(b) and Ortiz, a

claimant is to receive the benefit of the doubt when

there is an “approximate balance” of positive and

negative evidence, which Ortiz interpreted as “nearly

equal” evidence. This interpretation necessarily includes scenarios where the evidence is not in equipoise

but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to

equipoise), the claimant receives the benefit of the

doubt.

B

As to whether Ortiz correctly held that the benefitof-the-doubt rule does not apply when “the preponderance of the evidence is found to be against the

claimant,” 274 F.3d at 1364, this panel is bound by

Ortiz.

Mr. Lynch argues that Ortiz was wrongly decided

because “the totality of the . . . evidence can both preponderate in one direction and be nearly or approximately in balance.” Reply Br. 3. He contends that “these

two standards cannot co-exist” and that therefore Ortiz

eliminates any meaning of the word “approximate” in

2

This misstep in Chotta does not appear to have negatively

affected that veteran’s case. See 22 Vet. App. at 86 (vacating and

remanding on the basis that the Board failed to consider certain

lay evidence of record).

App. 29a

§ 5107(b). Reply Br. 3. But Ortiz considered (and rejected) such reasoning, explaining that “if the Board is

persuaded that the preponderant evidence weighs either for or against the veteran’s claim, it necessarily

has determined that the evidence is not ‘nearly equal’

. . . and the benefit of the doubt rule therefore has no

application.” 274 F.3d at 1365; see also id. at 1365–66

(stating that a finding by “the preponderance of the evidence” reflects that the Board “has been persuaded” to

find in one direction or the other). This panel is bound

by Ortiz.

CONCLUSION

We have considered Mr. Lynch’s remaining arguments but find them unpersuasive. For the foregoing

reasons, we affirm.

AFFIRMED

COSTS

No costs.

DYK, Circuit Judge, concurring in part and dissenting

in part.

The majority holds that this court’s prior decision

in Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), did

not establish an equipoise-of-the-evidence standard for

applicability of the benefit-of-the-doubt rule. Maj. Op.

8. I agree. The majority also holds that under Ortiz, the

App. 30a

benefit-of-the-doubt rule does not apply when the preponderance of the evidence is found to be for or against

a claimant. Maj. Op. 8. Here I disagree. It seems to me

that Ortiz’s preponderance of the evidence standard is

inconsistent with the plain text of 38 U.S.C. § 5107(b).

I

As the majority notes, Ortiz contains some language suggesting that a veteran is entitled to the benefit of the doubt only when the evidence is “too close to

call.” Maj. Op. 7 n.1 (quoting Ortiz, 274 F.3d at 1365).

However, I agree with the majority that Ortiz is best

understood as holding that veterans are entitled to the

benefit of the doubt when the evidence for or against

their claims is approximately equal. See Ortiz, 274 F.3d

at 1364. The benefit-of-the-doubt rule, codified at 38

U.S.C. § 5107(b), provides that a claimant is entitled to

the benefit of the doubt when there is an “approximate

balance” of positive and negative evidence. To the extent there is dicta in Ortiz suggesting that the benefitof-the-doubt rule applies only in the context of an evidentiary tie, those statements are inconsistent with

the plain text of § 5107(b) and should be disregarded.

II

The majority also holds that the benefit-of-thedoubt rule does not apply when the preponderance of

the evidence is found to be against a veteran’s claim.

Maj. Op. 8. In this respect the majority agrees with

Ortiz’s holding that “if the Board is persuaded that the

App. 31a

preponderant evidence weighs either for or against the

veteran’s claim, it necessarily has determined that the

evidence is not ‘nearly equal’ or ‘too close to call,’ and

the benefit-of-the-doubt rule therefore has no application.” 274 F.3d at 1365. That standard is the one applied by the Veterans Court in this case.

If the preponderance of the evidence favors the

claimant, the claimant prevails, and there is no need

to reach the benefit-of-the-doubt rule. But the majority

holds that the benefit-of-the-doubt rule does not apply

when the VA has established that the veteran is not

entitled to recover by a preponderance of the evidence.

This formulation is first confusing because the statute

generally places the burden of proof on the veteran. 38

U.S.C. § 5107(a) (“Except as otherwise provided by law,

a claimant has the responsibility to present and support a claim for benefits under laws administered by

the Secretary.”).

More significantly, the preponderance formulation

is not consistent with the statute and disadvantages

the veteran. This court has previously explained that

“preponderant evidence” simply “means the greater

weight of evidence.” Hale v. Dep’t of Transp., FAA, 772

F.2d 882, 885 (Fed. Cir. 1985); see also Althen v. Sec’y of

Health & Hum. Servs., 418 F.3d 1274, 1279 (Fed. Cir.

2005) (explaining in the context of the Vaccine Act that

“[t]his court has interpreted the ‘preponderance of the

evidence’ standard . . . as one of proof by simple preponderance, of ‘more probable than not’ causation”).

App. 32a

Our sister circuits have similarly explained that

preponderant evidence may be found when the evidence only slightly favors one party. See, e.g., Gjinaj v.

Ashcroft, 119 F. App’x 764, 773–74 (6th Cir. 2005) (“A

preponderance of the evidence requires only that the

government’s evidence ‘make the scales tip slightly’ in

its favor.”); Blossom v. CSX Transp., Inc., 13 F.3d 1477,

1479 (11th Cir. 1994) (determining that a jury instruction correctly explained that the preponderance of the

evidence standard is “like the scales of justice” and can

be satisfied as long as a party “tip[s] the scales just one

little bit in [their] favor”); Ostrowski v. Atl. Mut. Ins.

Cos., 968 F.2d 171, 187 (2d Cir. 1992) (“Instead, the

court should instruct the jury that it is to conclude that

a fact has been proven by a preponderance of the evidence if it ‘finds that the scales tip, however slightly, in

favor of the party with the burden of proof ’ as to that

fact.” (citation omitted)).

Because preponderant evidence may be found

when the evidence tips only slightly against a veteran’s claim, that standard is inconsistent with the

statute’s standard that the veteran wins when there is

an “approximate balance” of evidence for and against

a veteran’s claim. “Approximate” is not the same as

“slight.” By reframing the statute’s standard in terms

of preponderance of the evidence, Ortiz departed from

the clear language of the statute to the disadvantage

of the veteran. It is not difficult to imagine a range of

cases in which the evidence is in approximate balance

between the veteran and the government (and the

veteran should recover), but still slightly favors the

App. 33a

government (and under the majority’s test, the veteran

would not recover).

Ortiz’s holding effectively and impermissibly restricts the benefit-of-the-doubt rule to cases in which

there is close to an evidentiary tie, a proposition that

the majority agrees would be contrary to the “approximate balance” language of the statute. See Maj. Op. 8.

Indeed, the government appeared to agree at oral argument that when the evidence against a veteran’s

claim is equal to “equipoise plus a mere peppercorn,”

denying the benefit-of-the-doubt rule would be contrary to statute. Oral Argument at 23:00-23:16, http://

oralarguments.cafc.uscourts.gov/default.aspx?fl=20-2067_

04082021.mp3 (but disagreeing that preponderance of

the evidence is satisfied under that circumstance).

I respectfully dissent from the majority’s conclusion that the preponderance standard is consistent

with the statute.

App. 34a

Designated for electronic publication only

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

No. 19-3106

JOE A. LYNCH, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Senior Judge.1

MEMORANDUM DECISION

Note: Pursuant to U.S. Yet. App. R. 30(a),

this action may not be cited as precedent.

SCHOELEN, Senior Judge: The pro se appellant,

Joe A. Lynch, appeals an April 15, 2019, Board of Veterans’ Appeals (Board) decision that denied a disability rating greater than 30% for post-traumatic stress

disorder (PTSD). Record (R.) at 3-9. This appeal is

timely and the Court has jurisdiction to review the

Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and

7266(a). Single-judge disposition is appropriate. Frankel

v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the Board’s decision.

1

Judge Schoelen is a Senior Judge acting in recall status. In

re: Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 04-20

(Jan. 2, 2020).

App. 35a

I.

BACKGROUND

The appellant served on active duty in the U.S.

Marine Corps from June 1972 to July 1976. R. at 334.

On March 2, 2016, he filed a claim for PTSD, R. at

375-76, and in support submitted a private treatment

report from Dr. Newsome, who evaluated him on two

separate occasions in March 2015, R. at 365-66. The

appellant reported symptoms of sleep problems, anger,

phobias about confined spaces, panic attacks, mood

swings, frequent nightmares, feelings of sadness and

depression, memory problems, lack of friendships, social isolating, and antisocial behaviors outside the

home. R. at 365. Dr. Newsome reported that the appellant completed the PTSD checklist and that the results

supported a diagnosis of PTSD. R. at 366. She further

opined that the appellant’s “performance of his job

functions and social interactions are severely limited

due to his . . . PTSD symptomatology”; that “his lack of

social support is increasing because of his inability to

control physical and emotional reactions”; and that

“[h]is family relations, judgment, thinking, and mood

are increasingly limiting his current quality of life.” Id.

On August 5, 2016, the appellant underwent a VA

PTSD examination. R. at 164-74. The examiner diagnosed PTSD with symptoms of anxiety and chronic

sleep impairment but noted that the appellant “is not

reporting occupational or social functional impairment.” R. at 166, 171. The appellant reported a social

and family history, specifically that he found his 24year marriage to his current wife “generally fulfilling

App. 36a

and supportive”; that he currently felt an emotional

connection to his wife, children, and family; and that

he “remain[ed] socially connected to his church and

with friends at this time.” R. at 166. He “described his

current work performance as ‘excellent’[;] . . . that he

is in good standing with his current employer[;] and

[that his] relationships with co-workers and supervisors through the years were characterized as typically

positive and productive.” Id. The examiner opined that

the appellant’s symptoms were “not severe enough either to interfere with occupational and social functioning or to require continuous medication.” R. at 165.

Finally, the examiner reviewed Dr. Newsome’s treatment report and opined that

[t]he level of impairment observed by Dr.

Newsome was not observed or reported during today’s exam. For example, the claimant

described his current work performance as a

fraud investigator as “excellent.” Dr. Newsome characterized his job performance ability as “severely limited.”

R. at 166.

In August 2016, the RO granted service connection

for PTSD and assigned a 30% disability rating, effective March 2, 2016. R. at 124. In October 2016, the appellant filed a Notice of Disagreement, along with Dr.

Jabbour’s September and October 2016 private psychological evaluations as supporting evidence. R. at 70-87.

At the September 2016 initial evaluation, the appellant reported symptoms of recurring nightmares, insomnia, irritable mood, and difficulty concentrating. R.

App. 37a

at 76-77. Regarding his social adaptability, he reported

that his relationship with his two children from his

first marriage had been distant for some time, but that

his relationship with his daughter from his second

marriage was very close and loving; that he and immediate family members were not as close as they had

been; that his friendships had declined over time; and

that his self-isolation had affected marital intimacy.

Id. He also reported that at work he experienced problems with focus and concentration, noting that “I can’t

compete at work or in the environment that I’m in any

longer.” R. at 77. Dr. Jabbour diagnosed PTSD and prescribed medication to treat it. Id.

At the appellant’s second evaluation in October

2016, Dr. Jabbour documented PTSD symptoms of depressed mood, anxiety, suspiciousness, disturbances of

motivation and mood, difficulty in establishing and

maintaining effective work and social relationships,

difficulty in adapting to stressful circumstances including work or a work-like setting, inability to establish and maintain effective relationships, and suicidal

ideation. R. at 86. He diagnosed the appellant with

PTSD and noted that “[s]ome of his symptoms present

as quite notable, e.g. [,] [d]ifficulty sleeping and dreams

about his past traumas, [a]nhedonia, irritability and

inability to focus.” R. at 87.

In July 2017, the appellant underwent a second

VA PTSD examination. R. at 47-57. He reported difficulty showing emotions to his wife and family, social isolation, anxiety attacks, insomnia, irritability,

anger outbursts, nightmares, paranoia, and memory

App. 38a

difficulties. R. at 52-53. The examiner noted PTSD

symptoms of anxiety and suspiciousness, R. at 55, and

she also addressed the conflicting medical evidence regarding the severity of the appellant’s PTSD symptoms, noting that

[i]t appears that the Veteran did report more

social and occupational problems at his 2016

appointments with Dr. Jabbour, although Dr.

Jabbour’s conclusions on a DBQ [VA Disability Benefits Questionnaire] were more extreme than what was supported by available

evidence. For example, Dr. Jabbour . . . indicat[ed] that the Veteran has an “inability” to

have relationships with others, although he

had reported having friendships and family

relationships. Dr. Jabbour . . . indicat[ed] that

the Veteran has difficulty with social and

work relationships, although the Veteran reported no problems with work relationships

and reported having friendships. At the current . . . exam[ination], the Veteran reported

that his family is “close,” which contradicts

Dr. Jabbour’s documentation about distance

in family relationships. At the current . . .

exam[ination], the Veteran reported that he is

efficient in his work, which contradicts Dr.

Jabbour’s statement that he has problems

with reliability and productivity. Integrating

these findings, the Veteran’s social and occupational impairment appears to be currently

. . . worse than what was reported at the 2016

[VA] exam[ination] . . . but less severe than

Dr. Jabbour’s 2016 conclusions.

App. 39a

R. at 48. The examiner found the appellant’s occupational and social impairment represented by “occasional decrease in work efficiency and intermittent

periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” R. at

49.

The RO issued a Statement of the Case in August

2017 continuing the 30% rating, R. at 45, and the appellant filed a timely Substantive Appeal, R. at 31. In

the April 2019 decision here on appeal, the Board

found that the appellant’s occupational and social impairment was “manifested by occasional decrease in

work efficiency and intermittent inability to perform

occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and

conversation.” R. at 3.

II.

ANALYSIS

The appellant argues that, in denying a disability

rating greater than 30% for PTSD, the Board misapplied 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.303 and

wrongly found that he was not entitled to the benefit

of the doubt. Appellant’s Informal Brief (Br.) at 2. He

also argues, based upon the two private examinations

of record, that his PTSD symptoms were more serious

than the Board found. Id. at 4 (“Attachment #2”). Finally, he refers to a Board decision granting service

connection for PTSD to another claimant, alleging that

had the “luck of the draw” been different and another

App. 40a

veterans law judge assigned to his own case, his claim

would have been decided favorably. Id. at 4-5.

The Secretary responds that the Court should affirm the Board’s decision because the appellant’s contentions are nothing more than a disagreement with

the Board’s weighing of the evidence. Secretary’s Br. at

7. He also contends that “the Board also addressed

other PTSD symptoms, which may be indicative of a

higher rating, but indicated that there was no evidence

that such symptoms interfered with his ability to perform activities of daily living.” Id. at 7-8.

Under the current rating schedule for mental disorders, including PTSD, a 50% disability rating is warranted when there is

[o]ccupational and social impairment with reduced reliability and productivity due to such

symptoms as: flattened affect; circumstantial,

circumlocutory, or stereotyped speech; panic

attacks more than once a week; difficulty in

understanding complex commands; impairment of short and long term memory (e.g.,

retention of only highly learned material,

forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in

establishing and maintaining effective work

and social relationships.

38 C.F.R. § 4.13 0, Diagnostic Code (DC) 9411 (2019). A

70% disability rating is warranted when there is

[o]ccupational and social impairment, with

deficiencies in most areas, such as work,

App. 41a

school, family relations, judgment, thinking,

or mood, due to such symptoms as: suicidal

ideation; obsessional rituals which interfere

with routine activities; speech intermittently

illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to

function independently, appropriately and effectively; impaired impulse control (such as

unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in

adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

Id.

In Vazquez-Claudio v. Shinseki, the Federal Circuit held that assignment of disability ratings under

§ 4.130, DC 9411 requires a two-part analysis: (1) An

“initial assessment of the symptoms displayed [ . . . ]

and if they are the kind enumerated in the regulation,”

(2) “an assessment of whether those symptoms result

in occupational and social impairment.” 713 F.3d 112,

117-18 (Fed. Cir. 2013). In Mauerhan v. Principi, the

Court held that the symptoms listed in DC 9411 are

“not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of

symptoms, or their effects, that would justify a particular rating.” 16 Vet.App. 436, 442 (2002). The Board is

required to “consider all symptoms of a claimant’s condition that affect the level of occupational and social

impairment,” not just those listed in the regulation. Id.

at 443. Thus, when the Board determines a disability

App. 42a

rating, the veteran’s symptoms are the Board’s “primary consideration.” Vazquez-Claudio, 713 F.3d at 118.

However, “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or

others of similar severity, frequency, and duration.” Id.

at 117. “The regulation’s plain language highlights its

symptom driven nature” and “symptomatology should

be the fact finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 116-17.

The Board’s determination of the appropriate degree of disability is a finding of fact subject to the

“clearly erroneous” standard of review set forth in 38

U.S.C. § 7261(a)(4). See Smallwood v. Brown, 10 Vet.App.

93, 97 (1997); Johnston v. Brown, 10 Vet.App. 80, 84

(1997). “A factual finding ‘is “clearly erroneous” when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’ ”

Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948)).

Further, the Board is required to provide a written

statement of the reasons or bases for its findings and

conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise

basis for the Board’s decision, as well as to facilitate

review in this Court. See 38 U.S.C. § 7104(d)(1); Allday

v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this

App. 43a

requirement, the Board must analyze the credibility

and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide

its reasons for rejecting any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App.

498, 506 (1995), aff ’d per curiam, 78 F.3d 604 (Fed. Cir.

1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40

(1994). “The need for a statement of reasons or bases is

particularly acute when [Board] findings and conclusions pertain to the degree of disability resulting from

mental disorders such as PTSD.” Mitchem v. Brown, 9

Vet.App. 138, 140 (1996).

In this case, the Board determined that a disability rating higher than 30% was not warranted. R. at 78. The Board first addressed the conflicting evidence

regarding the severity of the appellant’s symptoms,

thoroughly summarizing the private and VA examinations of record and noting that the March 2015 and

September 2016 private evaluations painted a more

severe picture of the appellant’s PTSD symptomatology than did the August 2016 and July 2017 VA examinations. R. at 4-7. The Board further noted that the

July 2017 VA examiner commented on this conflicting

evidence and that the examiner expressly found that

“the conclusions drawn by the Veteran’s [September

2016] private provider, [Dr. Jabbour,] were more extreme than what was supported by the available evidence.” R. at 7; see R. at 48 (July 2017 VA examiner’s

comment that “Dr. Jabbour . . . indicat[ed] that the Veteran has an ‘inability’ to have relationships with others, although he had reported having friendships and

App. 44a

family relationships . . . [and] that the Veteran has difficulty with social and work relationships, although

the Veteran reported no problems with work relationships and reported having friendships”). The Board

then relied on this evidence to conclude that the more

serious findings in the private evaluation reports “are

not supported by the subjective symptoms provided by

the Veteran.” R. at 8.

Turning to the appellant’s contentions, he argues

that his PTSD symptoms were more serious than the

Board found based upon the two private examinations

of record. Appellant’s Informal Br. at 4 (“Attachment

#2”). However, the appellant’s general disagreement

with the Board’s weighing of the evidence is insufficient to demonstrate that the Board’s findings were

clearly erroneous or otherwise inadequately explained.

See 38 U.S.C. § 7261(a)(4); Hilkert v. West, 12 Vet.App.

145, 151 (1999) (en banc) (holding that the appellant

has the burden of demonstrating error), aff ’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v.

Brown, 10 Vet.App. 166, 169 (1997) (the appellant “always bears the burden of persuasion on appeals”);

Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 52, 5657. A review of the record and the Board’s decision

shows that the Board adequately explained its reliance

on the two VA examinations of record and its discounting of the severity of the symptoms found in the two

private evaluations.

The appellant also suggests that, per the “luck of

the draw,” had a different veterans law judge been assigned to his case, he or she would have resolved

App. 45a

reasonable doubt in the appellant’s favor by according

him the benefit of the doubt. The Board, however, explicitly stated that it had considered the doctrine of

reasonable doubt but found it did not apply here because “the preponderance of the evidence is against the

claim.” R. at 8. This explanation is understandable and

consistent with law. See Ortiz v. Principi, 274 F.3d

1361, 1364 (Fed. Cir. 2001) (“[T]he benefit of the doubt

rule is inapplicable when the preponderance of the evidence is found to be against the claimant.”); Gilbert, 1

Vet.App. at 54 (“A properly supported and reasoned

conclusion that a fair preponderance of the evidence is

against the claim necessarily precludes the possibility

of the evidence also being in ‘an approximate balance.’ ”); see also Allday, 7 Vet.App. at 527. His luck-ofthe-draw argument also fails because he has not identified any information or evidence that the Board failed

to consider that could have led to a different result. His

speculative and unsupported argument is therefore

unavailing. See Hilkert, 12 Vet.App. at 151; Berger, 10

Vet.App. at 169.

However, the Court concludes that the Board

erred in its treatment of the evidence showing that the

appellant had some symptoms indicative of a higher

rating, including suicidal ideation, hypervigilance,

and hyperarousal. R. at 8. The Board addressed these

symptoms but found that “there is no indication from

the record that they interfere with his ability to perform activities of daily living.” Id. In dismissing these

symptoms as such, the Board ignored this Court’s directive that, because the DC’s “plain language highlights

App. 46a

its symptom driven nature,” then “symptomatology

should be the fact finder’s primary focus when deciding entitlement to a given disability rating.” VazquezClaudio, 713 F.3d. at 116-17. Moreover, an inability to

care for himself is not required to obtain a higher rating of 50% or 70%, and even a rating of 100% requires

only “intermittent inability to perform activities of

daily living.” 38 C.F.R. § 4.130.

Yet having so concluded, the Court further finds

that the appellant has not met his burden to show

prejudice, even when liberally construing the pro se

appellant’s informal brief. See 38 U.S.C. § 7261(b)(2)

(requiring the Court to “take due account of the rule of

prejudicial error”); Shinseki v. Sanders, 556 U.S. 396,

409 (2009) (finding prejudice not demonstrated when

appellant did not explain, and Court could not discern,

how error could have made a difference in outcome);

De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992) (liberally construing pro se arguments).

Prejudice is not evident here because, when determining whether a higher disability rating for PTSD

was warranted, the Board, overall, considered all evidence of record concerning the appellant’s PTSD symptoms, including the March 2015 and September 2016

private evaluations and the August 2016 and July

2017 VA examinations. See Newhouse v. Nicholson, 497

F.3d 1298, 1301 (Fed. Cir. 2007) (holding that this

Court may make factual findings in reviewing for prejudicial error). Further, the appellant has not shown

how the Board’s proper treatment of the relevant

symptoms could have resulted in the assignment of a

App. 47a

higher rating. See id.; Hilkert, 12 Vet.App. at 151; Berger, 10 Vet.App. at 169; see also Cacciola v. Gibson, 27

Vet.App. 45, 57-58 (2014) (noting that when “an appellant states that he is appealing the Board’s decision on

an issue, but then makes . . . insufficient arguments,

challenging the Board’s determination[,] . . . the Court

generally affirms the Board’s decision as a result of the

appellant’s failure to plead with particularity the allegation of error and satisfy his burden of persuasion on

appeal to show Board error”). Thus, the appellant fails

to demonstrate prejudicial error in the Board’s denial

of a disability rating higher than 30% for PTSD.

III.

CONCLUSION

Upon consideration of the foregoing analysis, the

record of proceedings before the Court, and the parties’

pleadings, the April 15, 2019, Board decision is AFFIRMED.

DATED: April 17, 2020

App. 48a

[SEAL] BOARD OF VETERANS’ APPEALS

DEPARTMENT OF VETERANS AFFAIRS

IN THE APPEAL OF

JOE A. LYNCH

DATE:

xxx-xx-xxxx

Docket No. 17-44 610

April 15, 2019

ORDER

Entitlement to an initial rating in excess of 30 percent

for posttraumatic stress disorder (PTSD) is denied.

FINDING OF FACT

The occupational and social impairment resulting

from the Veteran’s PTSD has been manifested by occasional decrease in work efficiency and intermittent

inability to perform occupational tasks, although generally functioning satisfactorily with normal routine

behavior, self-care, and conversation.

CONCLUSION OF LAW

The criteria for an initial rating in excess of 30 percent

for PTSD have not been met. 38 U.S.C. § 1155 (2012);

38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018).

REASONS AND BASES FOR

FINDING AND CONCLUSION

The Veteran had active service in the United States

Marine Corps (USMC) from July 1972 to July 1976.

App. 49a

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating

decision issued by the VA Regional Office (RO) in

Montgomery, Alabama.

Initial Increased Rating – PTSD

The Veteran asserts that he should have a higher rating for his PTSD as his symptoms are worse than those

contemplated by the currently assigned rating.

In a private March 2015 private psychiatric evaluation

report, the Veteran was noted to report symptoms of

sleep impairment, intrusive memories, difficulty maintaining relationships, anger issues, difficulty with confined spaces, panic attacks, mood swings, and feeling

sad and depressed. The Veteran was noted to report

that he did not have any real friends, he isolated himself, and displayed antisocial behaviors outside the

home. He was noted to report problems with memory.

The private examiner diagnosed PTSD and noted that

the Veteran’s presentation indicated that the performance of his job functions and social interactions were

severely limited due to his in-service experiences. The

examiner noted that the Veteran’s lack of social support was increased as a result of his inability to control

physical and emotional reactions to stressors that remind him of his in-service trauma. The examiner noted

that the Veteran’s family relations, judgment, thinking, and mood were increasingly limiting his quality of

life.

App. 50a

At an August 2016 VA examination, the Veteran reported

that he experienced anxiety and chronic sleep impairment. The Veteran also reported re-experiencing traumatic events, avoidance behavior, negative alterations

in cognition, numbing behavior, and hyperarousal. The

Veteran reported that he had been married to his wife

for 24 years and characterized his relationship as generally fulfilling and supportive. The Veteran reported

that he was emotionally connection to his wife, his children, and his family. He reported that he was socially

connected to his church and with friends. The examiner noted that there was no significant social functional impairment. The Veteran reported that his

current work performance as a fraud investigator was

excellent. He reported that he was in good standing

with his current employer, and his relationships with

his co-workers and supervisors through the years were

characterized as typically positive and productive. The

examiner noted that there was no significant occupational functional impairment.

Upon mental status examination, the Veteran was

well-groomed, cooperative, and fully oriented. The Veteran maintained good eye contact throughout the interview and he appeared to be a reliable historian. The

Veteran’s mood was noted as euthymic and his affect

was stable. The examiner noted that there was no evidence of significant social discomfort or anxiety during

the interview. The Veteran’s speech was spontaneous,

articulate, and easily understood. There were no abnormal mannerisms observed. There was no evidence

that the Veteran exhibited hallucinations, delusions, or

App. 51a

psychoses. The Veteran denied suicidal ideation. The

Veteran’s attention and concentration were observed

as normal and memory recall of service, symptoms, and

related interview data appeared to be easily accessed

by the Veteran. The examiner confirmed the diagnosis

of PTSD, but reported that the Veteran’s PTSD did

not result in symptoms that were severe enough to

interfere with occupational or social functioning, or

to require continuous medication. The examiner acknowledged the March 2015 private mental health

evaluation report, but noted that the level of impairment identified in that report were not present or observed at the Veteran’s examination.

At a September 2016 private psychiatric evaluation,

the Veteran reported that he experienced chronic sleep

impairment, consisting of fragmented sleep and nightmares. He reported that he averaged 3-4 hours of sleep

per night and that his lack of sleep had affected him in

the workplace. He reported depressed moods, panic attacks, anxiety, suspiciousness, irritability, intrusive

thoughts, mild memory loss, flattened affect, disturbances of mood and motivation, difficulty adapting to

stressful circumstances, an inability in establishing

and maintaining effective relationships, and past suicidal ideation. The Veteran reported having a strained

relationship with his children from his first marriage.

He reported that he has a loving relationship with his

daughter from his current marriage. He reported that

he had difficulty showing affection to his current wife.

Further, he reported that he isolated himself and had

difficulty engaging in activities outside of the home

App. 52a

because he was easily startled and was hyperalert. In

addition, he was irritable, easily agitated, and had angry outburst. Regarding his employment, the Veteran

reported that he is behind on his work because he had

difficulty focusing and concentrating. In addition, he

reported that he did not have the patience to complete

his work. He indicated that he did not feel he could

work safely or effectively in his work environment and

was considering early retirement. In addition, the Veteran reported that he no longer attended church regularly and rarely socializes with friends and extended

family.

Upon mental status examination, the Veteran was

anxious with a blunted affect and psychomotor retardation. He was cooperative and appropriate without

being spontaneous. His speech and thought process

was normal. His speech was within normal limits. The

examiner noted that the Veteran is impaired in his

work. The Veteran denied suicidal and homicidal ideations. There were no delusions or hallucinations. While

he reported problems with his memory, he was alert

and oriented.

At a July 2017 VA examination, the Veteran reported

experiencing intrusive thoughts, physiological responses

to trauma, and avoidance. He reported persistent negative emotions and developing negative beliefs about

himself. He reported persistent irritability, difficulty

concentrating, exaggerated startle response, and hypervigilance. The Veteran reported having a good relationship with family, noting that he had a close family.

He reported having a few long-term friends with whom

App. 53a

he spoke with on the phone. He reported that he had

been married for over 20 years, but noted that his wife

got frustrated that he would not go out with her to

crowded places. The Veteran reported he had been

working 29 hours per week for the Industrial Commission. He reported that he was able to work mostly

alone, and he reported that he did not have any trouble

completing his work. He reported that he had been told

that he could be “too aggressive” interpersonally with

other people at work. He reported that he had to restrain himself and tried to be polite to people when he

was working. The examiner noted that based on the

subjective complaints, the Veteran had social and occupational impairment manifested by occasional decrease in work efficiency and intermittent inability to

perform occupational task, although generally functioning satisfactorily.

Upon mental status examination, the Veteran was polite and cooperative. He put forth a good effort and appeared to be a good informant. He was dressed casually

and appropriately and had good hygiene. His speech

was within normal limits regarding articulation, rate,

tone, volume, and production. His affect was appropriate to the content of the Veteran’s speech. He was alert,

attentive, and oriented to person, place, time, and situation. Attention and concentration during the evaluation appeared adequate based on the Veteran’s ability

to complete questionnaires, respond to interview questions, and spell a word forward and backward. His immediate recall abilities were intact, and his remote

and recent memory abilities were intact. His mood was

App. 54a

described as “a little tense, a little nervous” and reported that his most significant problem was anxiety

attacks that disturbed his sleep. The examiner confirmed the diagnosis of PTSD.

The examiner also provided comment regarding the

conflicting medical evidence of record. In that regard,

the examiner noted that appeared to have reported

more social and occupational problems at his private

evaluations than at his VA examinations. However, the

VA examiner also noted that the conclusions drawn by

the Veteran’s private provider were more extreme than

what was supported by the available evidence. In that

regard, the examiner cited to the fact that the private

provider noted that the Veteran had an inability to

maintain relationships with others, but that the Veteran himself had reported that he had relationships

with friends and family members. Further, the examiner noted that the Veteran had difficulty with work

and social relationships, but that the Veteran himself

reported that he had not problems with work relationships and that he had friends. Further, the Veteran’s

current reports of “close” relationships with family,

which contradicted the findings of the private examiner. Further, the Veteran reported at the current examination that he was efficient in his work, which

contradicted the private examiner’s findings that the

Veteran had problems with reliability and productivity. In sum, the VA examiner noted that integrating all

the findings of record, the Veteran’s occupational and

social impairment appeared to be currently worse than

App. 55a

reported at the 2016 VA examination, but less severe

than the impairment noted by the 2016 private examiner’s evaluation. As such, the examiner noted that the

Veteran was assessed as having occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform

occupational tasks, although generally functioning satisfactorily.

The Board finds that the Veteran is not entitled to an

initial rating in excess of 30 percent for PTSD. In this

regard, the Veteran does not have social and occupational impairment manifested by reduced reliability

and productivity. In fact, the Veteran reported that his

work performance was “excellent.” Further, he reported feeling emotionally connected to his wife, children, and family; and a social connection to his friends

and church. Further, the Veteran was not noted to have

frequent panic attacks, short or long-term memory

loss, impaired judgement, impaired abstract thinking,

serious disturbances of motivation and mood, or inability maintaining effective work and social relationships.

The Veteran has reported that he, on occasion, has experienced suicidal ideation. However, he has not reported any specific thoughts, intent, or plan. In fact, his

overall reports were somewhat vague. The Veteran

does not have impairment in his speech, he does not

have hallucinations, and he does not experience delusions. While the Veteran has been noted to be hypervigilant and experience hyperarousal, there is no

indication from the record that they interfere with his

App. 56a

ability to perform activities of daily living, to include

having obsessional rituals. The Board acknowledges

that the Veteran’s private examiners have described

more severe impairment than that identified by the VA

examiners; however, those findings are not supported

by the subjective symptoms provided by the Veteran.

Further, while the July 2017 VA examiner did indicate

that the Veteran’s symptoms were more severe than

those reported at his 2016 VA examination, his current

symptoms, even when considered as a whole, do not indicate that he has social and occupational impairment

manifested by reduced reliability and productivity. In

fact, the July 2017 VA examiner specifically noted that

the Veteran’s PTSD was manifested by occupational

and social impairment with occasional decrease in

work efficiency and intermittent periods of inability to

perform occupational tasks. That is further supported

by the Veteran’s own statements that he was performing well at work, and that he was able to complete all

his assignments without issue. Further, he was able to

maintain relationships with family and friends. Therefore, the Board finds that an initial rating in excess

of 30 percent for PTSD is not warranted. 38 C.F.R.

§ 4.130, Diagnostic Code 9411 (2018).

Accordingly, the Board finds that the preponderance of

the evidence is against the claim and entitlement to an

initial rating in excess of 30 percent for PTSD is not

App. 57a

warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

/s/

Kristin Haddock

Kristin Haddock

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR

THE BOARD

Christina Quant,

Law Clerk

App. 58a

Benefit of the doubt. The Secretary shall consider all information and lay and medical evidence

of record in a case before the Secretary with respect to benefits under laws administered by the

Secretary. 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.

38 U.S.C. § 5107(b).

It is the defined and consistently applied policy of

the Department of Veterans Affairs to administer

the law under a broad interpretation, consistent,

however, with the facts shown in every case. When,

after careful consideration of all procurable and

assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any

other point, such doubt will be resolved in favor of

the claimant. By reasonable doubt is meant one

which exists because of an approximate balance of

positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of

probability as distinguished from pure speculation

or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of

any statements submitted, as distinguished from

impeachment or contradiction by evidence or

known facts, is not justifiable basis for denying the

application of the reasonable doubt doctrine if the

entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine

is also applicable even in the absence of official

App. 59a

records, particularly if the basic incident allegedly

arose under combat, or similarly strenuous conditions, and is consistent with the probable results

of such known hardships.

38 C.F.R. § 3.102.