Amicus Curiae Brief — Joe A. Lynch, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

Supreme Court briefJun 13, 2022

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No. 21-1453

IN THE

Supreme Court of the United States

JOE A. LYNCH,

DENIS R. MCDONOUGH,

SECRETARY OF VETERANS

AFFAIRS,

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Federal Circuit

___________

BRIEF OF VIETNAM VETERANS OF AMERICA

AS AMICUS CURIAE IN SUPPORT OF THE

PETITIONER

PATRICIA A. HARRIS

VIETNAM VETERANS OF AMERICA

8719 Colesville Road

Suite 100

Silver Spring, MD

Washington, D.C. 20910

(301) 585-4000

pharris@vva.org

JUNE 13, 2022

THEODORE A. HOWARD*

COUNSEL OF RECORD

SCOTT FELDER

LUKMAN AZEEZ

HARSH SANCHETI

NICHOLAS PETERSON

NICOLE HAGER

WILEY REIN LLP

2050 M Street, N.W.

Washington, D.C. 20036

(202) 719-7120

thoward@wiley.law

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE.................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 6

I. The Analytical Framework of the Preponderance

of Evidence and Persuasive Evidence Standards

is Unworkable. ..................................................... 6

II. This Case Presents an Issue of Exceptional

Importance Meriting Review Because the Vital

Benefit-Of-The-Doubt Rule Has Been

Misapplied to Veterans’ Claims for Over Twenty

Years..................................................................... 8

A. Congress Designed a Regime Uniquely

Favorable to Veterans, Which Should Be

Reflected in the Proper Interpretation of

“Approximate Balance.”………………………… 9

B. Ortiz Incorrectly Found the Term

“Approximate” to Be “Unambiguous on Its

Face,” When in Fact It Can Clearly

Accommodate Multiple Meanings …………...11

1. Ortiz’s Narrow Interpretation and Application

of the Preponderance Standard Renders the

Term “Approximate” Superfluous. ................ 12

2. The Pro-Veteran Canon Supports a Broader

Interpretation of “Approximate.” .................. 14

3. The Legislative History Supports a Broader

Interpretation of “Approximate.” .................. 15

C. A Bare Preponderance of the Evidence Cannot

Defeat a Veteran Under Any Reasonable

Interpretation of “Approximate.”………….….16

III Lynch Introduces Further Confusion at the VA,

Impacting Hundreds of Thousands of

Veterans……………………………………………. 20

A. The Benefit-of-the-Doubt Rule is the Bedrock

of VA Disability Adjudications………….…….21

B. Lynch Has Created More, Not Less, Confusion

at the VA ..…………………………….…….…..23

C. Misapplication of the Benefit-of-the-Doubt

Rule Potentially Results in the Denial of

Benefits to Deserving Veteran………..….…...25

CONCLUSION .......................................................... 29

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Addington v. Texas,

441 U.S. 418 (1979) .............................................. 25

Advoc. Health Care Network v.

Stapleton,

137 S. Ct. 1652 (2017) .......................................... 12

Akins v. McDonough,

No. 20-8787, 2022 WL 702386 (Vet.

App. Mar. 9, 2022)................................................ 24

Begay v. United States,

553 U.S. 137 (2008) (Scalia, J.,

concurring), abrogated on other

grounds by Johnson v. United States,

576 U.S. 591 (2015) .............................................. 13

Brown v. Gardner,

513 U.S. 115 (1994) .............................................. 14

Candle Corp. of Am. v. U.S. Int’l Trade

Comm’n,

374 F.3d 1087 (Fed. Cir. 2004) ............................ 15

California ex rel. Cooper v. Mitchell

Bros. Santa Ana Theater, 454 U.S.

90 (1981). .............................................................. 17

Davis v. McDonough,

No. 20-3150, 2021 WL 3742378 (Vet.

App. Aug. 25, 2021) ................................................ 9

Gilbert v. Derwinski,

1 Vet. App. 49 (1990).............................................. 3

Henderson ex rel. Henderson v.

Shinseki,

562 U.S. 428 (2011) ...................................... passim

Herman & MacLean v. Huddleston,

459 U.S. 375 (1983) .............................................. 25

Hicks v. McDonough,

No. 20-8264, 2022 WL 1223015 (Vet.

App. Apr. 26, 2022) .............................................. 24

Hodge v. West,

155 F.3d 1356 (Fed. Cir. 1998) ............................ 11

Hopkins v. McDonough,

No. 21-1519, 2022 WL 443023 (Vet.

App. Feb. 14, 2022) .............................................. 24

Jimenez v. Quarterman,

555 U.S. 113 (2009) .............................................. 11

Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369 (2004) .............................................. 15

King v. St. Vincent’s Hosp.,

502 U.S. 215 (1991) .............................................. 14

Lynch v. McDonough,

21 F.4th 776 (Fed. Cir. 2021)....................... passim

Lynch v. McDonough,

999 F.3d 1391 (Fed. Cir. 2021) (Dyk,

J. dissenting) ...................................................... 6, 7

Nat’l Lime Ass’n v. EPA,

627 F.2d 416 (D.C. Cir. 1980) .............................. 19

Ortiz v. Principi,

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

Parker v. Wilkie,

No. 18-5272, 2019 WL 4605721 (Vet.

App. Sept. 24, 2019) ............................................... 9

Sargent v. Mass Acc. Co.,

307 Mass. 246 (1940). .......................................... 18

Skoczen v. Shinseki,

564 F.3d 1319 (Fed. Cir. 2009) .............................. 9

Turpin v. Merrell Dow Pharms., Inc.,

959 F.2d 1349 (6th Cir. 1992) .............................. 19

United States v. Monsanto,

491 U.S. 600 (1989) .............................................. 12

Walters v. Nat’l Assn. of Radiation

Survivors,

473 U.S. 305 (1985) .............................................. 10

In re Winship,

397 U.S. 358 (1970) (Harlan, J.,

concurring). .......................................................... 18

Statutes

38 U.S.C. § 5104C(a)(1) ............................................. 21

38 U.S.C. § 5107 .................................................... 8, 15

38 U.S.C. § 5107(b) ............................................ passim

38 U.S.C. § 7261 ........................................................ 22

50 U.S.C. § 4215(a)(3) ............................................... 11

Agent Orange Act of 1991, Pub. L. No.

102-4 (1991) .......................................................... 26

The Veterans Appeals Improvement

and Modernization Act of 2017, Pub.

L. No. 115-55 (2017) ............................................. 21

Other Authorities

38 C.F.R. § 19.2(d) ..................................................... 21

vii

DEP’T OF VETERANS AFFAIRS, Board of

Veterans’ Appeals Annual Report

Fiscal Year (FY) 2021 (December

2021) ............................................................... 21, 22

H.R. Rep. No. 100–963 (1988) ................................... 16

Honoring Our Promise to Address

Comprehensive Toxics Act of 2021,

H.R. 3967 117th Cong. (2021) ............................. 26

Title Redacted by Agency, No. 10-36

095A, 2022 WL 1637061 (Bd. Vet.

App. Mar. 31, 2022).............................................. 22

Title Redacted by Agency, No. 12-19 376

2022 WL 1637295 (Bd. Vet. App.

Mar. 31, 2022) ...................................................... 23

Title Redacted by Agency, No. 15-07 507,

2022 WL 1593537 (Mar. 25, 2022) ................ 27, 28

Title Redacted by Agency, No. 15-24 191,

2022 WL 1435840 (Bd. Vet. App.

Mar. 12, 2022) ...................................................... 26

Title Redacted by Agency, No. 15-46 967,

2022 WL 1594185 (Bd. Vet. App.

Mar. 27, 2022) ...................................................... 26

viii

Title Redacted by Agency, No. 16-45 912,

2022 WL 1450256 (Bd. Vet. App.

Mar. 17, 2022) ...................................................... 27

Title Redacted by Agency, No. 210915185717, 2022 WL 669062 (Bd. Vet.

App. Jan. 28, 2022) .............................................. 23

Title Redacted by Agency, No. 22018873,

2022 WL 1614709 (Bd. Vet. App.

Mar. 30, 2022) ...................................................... 24

U.S. VETERANS BENEFITS ADMIN.,

Annual Benefits Report, FY2020 ......................... 21

Veterans Administration Adjudication

Procedure & Judicial Review Act,

110th Cong., 2d Sess., Sen. Report

No. 100-418 (July 7, 1988) ................................... 16

INTEREST OF THE AMICUS CURIAE1

Vietnam Veterans of America (“VVA”) is a national

nonprofit organization and is the only national

veterans

service

organization

congressionally

chartered and exclusively dedicated to Vietnam-era

veterans and their families. As the Vietnam war came

to an end and years passed, it became clear that

established veterans service organizations had failed

to make issues of concern for Vietnam veterans a

priority. In response, VVA founded Vietnam Veterans

of America Legal Services (“VVALS”) to assist

veterans seeking benefits and services from the

government. VVA has played a leading role in

advocating for the creation of Judicial Review,

championing the rights of veterans to challenge VA

benefits decisions in court. In the 1990s, VVALS

evolved into the current VVA Service Representative

program that continues to represent and advocate for

veterans today.

The issues in this case lie at the core of VVA’s

experience and expertise. VVA has a strong interest

in promoting the pro-veteran application of 38 U.S.C.

The parties have filed blanket consents to the filing of

amicus briefs in this case. Counsel for VVA notified counsel of

record of their intention to file an amicus curie brief at least 10

days before the deadline to file the brief. No counsel for a party

authored this brief in whole or in part, and no counsel or party

other than amicus or its counsel made a monetary contribution

intended to fund the preparation or submission of this brief.

§ 5107(b) (the benefit-of-the-doubt rule); and is well

positioned to aid the Court’s understanding of how the

rule fits within the full range of benefits Congress has

provided to veterans, and how hundreds of thousands

of veterans may be harmed if this Court fails to adopt

an interpretation of the rule that accords with

Congress’s intent.

SUMMARY OF ARGUMENT

This case involves a question that affects a great

number of veterans seeking benefits from the

Veterans Administration (“VA”): the proper

application of the benefit-of-the-doubt rule, a unique

standard of proof that gives the benefit of the doubt to

veterans when there is “an approximate balance of

positive and negative evidence regarding any issue

material to the determination of a matter.” 38 U.S.C.

§ 5107(b).

“This unique standard of proof is in keeping with

the high esteem in which [this] nation holds those who

have served in the Armed Services.” Gilbert v.

Derwinski, 1 Vet. App. 49, 54 (1990). The standard

lies “at the farthest end of the spectrum” of

possibilities in administrative or civil procedure. Id.

It is one of the “singular characteristics of the review

scheme Congress created for the adjudication of

veterans’ benefits claims,” reflecting longstanding

solicitude for veterans and “‘plac[ing] a thumb on the

scale in the veteran’s favor.’” Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 440

(2011) (citation omitted).

Two decades ago, however, the Federal Circuit

took its thumb off the scale. In Ortiz v. Principi, the

court effectively struck the word “approximate” from

the statute, holding that the benefit-of-the-doubt rule

applies only when the evidentiary scales are in

“equipoise.” 274 F.3d 1361, 1364 (Fed. Cir. 2001).

Relying on Ortiz in the years since, the Board of

Veterans’ Appeals and the Court of Appeals for

Veterans Claims have allowed the VA to defeat claims

by showing nothing more than a bare preponderance

of evidence against a veteran.

But when two things are in “equipoise,” they are

not “approximate[ly]” balanced—they are balanced.

Thus, Ortiz’s “equipoise” standard is facially

inconsistent with the plain meaning of the word

“approximate” in § 5107(b). Moreover, the standard

finds no support in the statute’s legislative history and

contravenes the surplusage and pro-veteran canons of

statutory construction.

Presented the opportunity to overturn Ortiz’s

erroneous decision, the Federal Circuit doubled down.

Although its en banc decision recognizes that Ortiz

“could

confuse

because

other

cases

link

‘preponderance of the evidence’ to the concept of

equipoise,” it nevertheless held that Ortiz was

correctly decided. Lynch v. McDonough, 21 F.4th 776,

781 (Fed. Cir. 2021). In an attempt “to eliminate

[Ortiz’s] potential for confusion,” the court set a new

analytical framework—the persuasion of evidence

standard—for applying the benefit-of-the-doubt rule

under § 5107(b). Id. at 782. Yet, that compounds the

confusion.

Like the preponderance standard, the persuasive

evidence standard is not contemplated by the statute’s

text, and, in any event, is nothing more than the

preponderance of evidence standard expressed with a

different word. Indeed, even post-Lynch, the VA’s

application of the benefit-of-the-doubt rule still largely

relies on the preponderance of evidence standard.

By allowing the VA to prevail when it tips the

scales just enough to show a preponderance of

evidence, Ortiz ensured that the statutory benefit-ofthe-doubt rule will have only minimal, if any, effect,

leaving the weight of an increased burden on the

veteran.

ARGUMENT

I. The

Analytical

Framework

the

Preponderance of Evidence and Persuasive

Evidence Standards is Unworkable.

In Ortiz, although the Federal Circuit recognized

that 38 U.S.C. § 5107(b) requires only an

“approximate balance” of proof to invoke the benefitof-the-doubt in favor of the veteran, it did not impose

the adjective “approximate” on the noun “balance.”

Instead, it analogized to baseball’s “tie goes to the

runner” rule, suggesting that the benefit-of-the-doubt

rule is triggered only when the evidence is “too close

to call.” Ortiz, 274 F.3d at 1365. Ortiz thus assumes

that evidence preponderating in one direction is not

“too close to call.” Not only is that assumption flawed,

it is supported neither by the statute nor any

precedents.

As the partial dissent in Lynch recognizes,

preponderant evidence simply “means the greater

weight of evidence.” Lynch v. McDonough, 999 F.3d

1391, 1396 (Fed. Cir. 2021) (Dyk, J. dissenting).

“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.’” Id. at 1397. By reframing the statute’s

standard in terms of preponderance of evidence, Ortiz

not only “departed from the clear language of the

statute,” it “impermissibly restricts the benefit-of-thedoubt rule to cases in which there is close to an

evidentiary tie.” Id.

Confronted with an admittedly “confusing”

precedent in Ortiz, the Lynch en banc court

articulated a new standard—i.e., a “persuasive

evidence” standard. But this standard is nothing

more than a reformulation of the preponderance

rule—a factfinder of the preponderance rule – a

factfinder may deem evidence that preponderates in

one direction “persuasive.”

Indeed, Ortiz

contemplates precisely this result. Ortiz, 274 F.3d at

1365 (“[I]f 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’ or ‘too close to call,’

and the benefit of the doubt rule therefore has no

application.”) (emphasis added). Put differently,

preponderance of evidence “describe[s] a state of proof

that persuades the factfinder[] that the points in

question are more probably so than not.” Id. (quoting

Mueller & Kirkpatrick, Evidence § 3.3 (1995))

(emphasis added).

Accordingly,

characterizing

evidence

“persuasive” as opposed to preponderant is a

distinction without a difference. As the en banc

dissent notes, “the analytical structure underpinning

the preponderant evidence rule in Ortiz not only

remains, but now girds the persuasive evidence

standard.”

Lynch, 21 F.4th at 783 (Reyna J.,

dissenting).

Because the analytical framework of the

persuasive evidence rule is the same as the

preponderance standard, it is equally unworkable.

Indeed, this standard, like the preponderance

standard, is found nowhere in the statute and is “a far

cry from the language contemplated by Congress.” Id.

II. This Case Presents an Issue of Exceptional

Importance Meriting Review Because the

Vital Benefit-Of-The-Doubt Rule Has Been

Misapplied to Veterans’ Claims for Over

Twenty Years

Not only is Ortiz’s preponderance standard

unworkable,

contravenes

any

reasonable

interpretation of “approximate.” As this Court has

previously emphasized, “‘[t]he solicitude of Congress

for veterans is . . . long standing,’ . . . [a]nd that

solicitude is plainly reflected in the [Veterans’ Judicial

Review Act], as well as in subsequent laws that ‘place

a thumb on the scale in the veteran’s favor in the course

of administrative and judicial review of VA decisions.’”

Henderson, 562 U.S. at 440 (emphasis added)

(quoting, United States v. Oregon, 366 U.S. 643, 647

(1961); Shinseki v. Sanders, 556 U.S. 396, 416 (2009)

(Souter, J., dissenting)). Unfortunately, for a crucial

segment of veterans who should benefit most from

§ 5107’s expression of this beneficence—namely, those

with substantial evidence both in their favor and

against them, but who fall short of equipoise—that

thumb has been withdrawn.

Ortiz has long been interpreted to mean that

veterans get the benefit of the doubt only when there

is an even balance of proof. See, e.g., Davis v.

McDonough, No. 20-3150, 2021 WL 3742378, at *2

(Vet. App. Aug. 25, 2021); Parker v. Wilkie, No. 185272, 2019 WL 4605721, at *2 (Vet. App. Sept. 24,

2019); Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed.

Cir. 2009) (describing the rule as an “equality of the

evidence” standard). These decisions do nothing to

address the bitter irony that veterans with

substantial evidence approaching, but not reaching,

equipoise—those most in need of the benefit-of-thedoubt rule—are the most harmed by the Federal

Circuit’s error.

At the heart of the issue is Ortiz’s and the Veterans

court’s interpretation of the term “approximate.”

Under either a broader or more narrow interpretation

of “approximate,” however, a bare preponderance of

the evidence cannot be permitted to prevail against a

veteran with favorable evidence roughly approaching

equipoise. Without review and intervention by this

Court, the vital pro-veteran thumb cannot press the

scale if judicial arms remain pinioned by illogical

precedent.

A. Congress Designed a Regime Uniquely

Favorable to Veterans, Which Should Be

Reflected in the Proper Interpretation of

“Approximate Balance.”

This Court has long recognized that the character

of the veterans’ benefits statutes is strongly and

uniquely pro-claimant. Henderson, 562 U.S. at 440.

That character must be accounted for when

considering the meaning of “approximate balance” in

§ 5107(b).

Overall, this adjudicatory “process is designed to

function throughout with a high degree of informality

and solicitude for the claimant.” Walters v. Nat’l Assn.

of Radiation Survivors, 473 U.S. 305, 311 (1985). As

this Court has previously recognized, the contrast

between ordinary civil litigation “and the system

Congress created for veterans is dramatic.”

Henderson, 562 U.S. at 431 (emphasis added). Unlike

civil litigation, “[a] veteran faces no time limit for

filing a claim, and once a claim is filed, the VA’s

process for adjudicating it at the regional office and

the Board is ex parte and nonadversarial.” Id. (citing

38 CFR §§ 3.103(a), 20.700(c) (2010)). Indeed, the VA

“has a statutory duty to assist veterans in developing

the evidence necessary to substantiate their claims[.]”

Id. at 431–32 (citing 38 U.S.C. § 5103(a)).

This generous backdrop animates § 5107(b)’s

mandate that “[w]hen 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.” Congress has almost never employed such

a standard before,2 and this overall favor toward

veterans should be reflected in a broad interpretation

of “approximate.” The narrow definition espoused by

Ortiz and its progeny betrays the spirit of this

statutory scheme, and should be rejected. See, e.g.,

Hodge,155 F.3d at 1362 (“[T]he Court of Veterans

Appeals . . . has imposed on veterans a requirement

inconsistent with the general character of the

underlying statutory scheme for awarding veterans’

benefits.”).

B. Ortiz

Incorrectly

Found

the

Term

“Approximate” to Be “Unambiguous on Its

Face,” When in Fact It Can Clearly

Accommodate Multiple Meanings.

“As with any question of statutory interpretation,

[the] analysis begins with the plain language of the

statute.” Jimenez v. Quarterman, 555 U.S. 113, 118

(2009). In this context, Ortiz defined “approximate” as

“almost exactly or nearly equal,” and it concluded that

its meaning is “clear and unambiguous on its face.”

274 F.3d at 1364. But as explained in Petitioner’s

brief, the term “approximate” is clearly susceptible to

multiple widely accepted definitions. See Pet’r’s Br.

at 22-23. Given that the meaning of this relative term

can span from “roughly similar” (i.e., a ballpark

The only other statutory provision containing this language is

50 U.S.C. § 4215(a)(3), relating to eligibility for restitution for

internment during World War II.

estimate) to “nearly the same” (i.e., “virtually

identical”), the term is decidedly ambiguous.

This Court has held that “when evaluating claims,

the VA must give veterans the ‘benefit of the doubt’

whenever positive and negative evidence on a

material issue is roughly equal.” Henderson, 562 U.S.

at 432 (emphasis added) (quoting § 5107(b)).

Contrary to Ortiz and the en banc decision, the word

“roughly” does not connote the same level of precision

as “nearly equal,” and it is an obvious illustration of

the term’s ambiguity.

Given these disparate meanings, Ortiz and the en

banc court should have looked to general canons of

statutory construction, which are “useful in close

cases, or when statutory language is ambiguous,”

United States v. Monsanto, 491 U.S. 600, 611 (1989),

when construing the term “approximate.” Id.

1. Ortiz’s Narrow Interpretation

and

Application

the

Preponderance

Standard

Renders the Term “Approximate”

Superfluous.

As an initial matter, Ortiz’s “construction runs

aground on the so-called surplusage canon—the

presumption that each word Congress uses is there for

a reason.” Advoc. Health Care Network v. Stapleton,

137 S. Ct. 1652, 1659 (2017). The surplusage canon

rejects the prospect of pointless words, and is

employed to “help[] decide between competing

permissible interpretations of an ambiguous

statute[.]” Begay v. United States, 553 U.S. 137, 153

(2008) (Scalia, J., concurring), abrogated on other

grounds by Johnson v. United States, 576 U.S. 591

(2015).

Under Ortiz—including its invocation of the

preponderance standard—“approximate” is a nullity.

Ortiz defined “approximate” as “almost exactly or

nearly equal,” and determined that a preponderance

of evidence against a veteran is sufficient for denial of

a claim.

If Congress had intended a bare

preponderance (often expressed numerically as 51%)

standard, it would not have used the term

“approximate;” that it did so commands a contrary

result to avoid the word becoming surplusage.

Notwithstanding

Ortiz’s

dismissiveness

numerical formulation, until a veteran reaches the

50% threshold, the preponderance of evidence

dispositively weighs against him or her, and the

veteran loses. Perversely, a veteran would lose even

with “nearly equal” evidence. 274 F.3d at 1365. The

en banc court maintains that “Ortiz explicitly gives

force to the modifier ‘approximate’ as used in 38

U.S.C. § 5107(b),” Lynch, 21 F.4th at 780. Not so—the

word does no work under Ortiz.

Rather than acknowledge the incompatibility of

the preponderance standard with this “approximate

balance” language—and perhaps in an attempt to

avoid this surplusage problem—the en banc court

instead ostensibly attempts to carve out some space

around the prospect of equipoise by interposing a

“persuasive evidence” standard.

But this attempt fails because the “persuasive

evidence” standard is not tethered to any legal

authority or principle. While requiring more than a

bare preponderance could give more force to the term

“approximate,” the court cannot invent standards out

of whole cloth that are not grounded in settled

principles of case law, executive regulation, or

legislative edict. Ultimately, unless the notion of a

“persuasive evidence” standard were linked with

“clear and convincing evidence”—the next standard

available when ratcheting above preponderance of the

evidence, see infra Section II.C—it must be discarded

in favor of a legally cognizable and practically

administrable standard.

2. The Pro-Veteran Canon Supports

a Broader Interpretation of

“Approximate.”

The pro-veteran canon further reinforces the

broader interpretation of the term “approximate.”

This Court has repeatedly stressed that, in situations

like this, “interpretive doubt is to be resolved in the

veteran’s favor.” Brown v. Gardner, 513 U.S. 115, 118

(1994). See also, e.g., King v. St. Vincent’s Hosp., 502

U.S. 215, 220 n.9 (1991) (“[W]e would ultimately read

the provision in King’s favor under the canon that

provisions for benefits to members of the Armed

Services are to be construed in the beneficiaries’

favor.”); Henderson, 562 U.S. at 441 (“We have long

applied ‘the canon that provisions for benefits to

members of the Armed Services are to be construed in

the beneficiaries’ favor.’”) (quoting King, 502 U.S. at

220 n.9).

There is both poetic and policy-based justice that a

veteran-friendly interpretation of § 5107’s benefit-ofthe-doubt provision is buttressed by the pro-veteran

canon. Conversely, as troubling as the prospect of

limiting § 5107 is, that perversion would only be

compounded if the pro-veteran canon were deemed

somehow unable to dictate the proper course here.

3. The Legislative History Supports

a Broader Interpretation of

“Approximate.”

The statute’s legislative history also is instructive.

See Candle Corp. of Am. v. U.S. Int’l Trade Comm’n,

374 F.3d 1087, 1093–94 (Fed. Cir. 2004) (“[W]here

textual ambiguity exists, ‘we must look beyond the

bare text . . . to the context in which it was enacted

and the purposes it was designed to accomplish.’”)

(quoting Jones v. R.R. Donnelley & Sons Co., 541 U.S.

369, 377 (2004)). As discussed in Petitioner’s brief, the

Senate emphasized that

where on the basis of all the relevant evidence an

element of a claim is neither clearly established

nor clearly refuted, the benefit of the doubt is to be

given to the claimant. Where the evidence clearly

calls for a finding of fact for or against the

claimant, such a rule would be unnecessary and

would thus not apply; the finding would simply

follow the clear direction of the evidence.

Veterans Administration Adjudication Procedure &

Judicial Review Act, 110th Cong., 2d Sess., Sen.

Report No. 100-418 at 33 (July 7, 1988) (emphasis

added). This language does not align with the

precision of Ortiz’s “almost exactly” definition; rather,

it plainly states that, unless the evidence is “clearly”

against a veteran, the veteran prevails.

The legislative history states that “[i]n such a

beneficial structure there is no room for . . .

adversarial concepts as cross examination, best

evidence rule, hearsay evidence exclusion, or strict

adherence to burden of proof.” H.R. Rep. No. 100–963,

at 13 (1988) (emphasis added). We invoke this same

crucial notion: there is no room for the strict

interpretation espoused by Ortiz and the en banc

court’s decision here, nor room for the “strict

adherence to burden of proof” entailed in Ortiz’s

preponderance standard.

C. A Bare Preponderance of the Evidence Cannot

Defeat a Veteran Under Any Reasonable

Interpretation of “Approximate.”

Although Ortiz’s take on “approximate balance” is

deeply problematic for the reasons discussed above

and in Petitioner’s brief, there is no reasonable

definition that accommodates Ortiz’s preponderance

standard. This begs the question: For veterans that

cannot muster a preponderance of evidence in their

favor, and fall short of equipoise, what standard

should be applied in determining whether or not to

afford the benefit of the doubt?

Since a bare

preponderance of evidence against them cannot

prevail, the logical next step is to consider whether

there is clear and convincing evidence against them.

“Three standards of proof are generally recognized,

ranging from the ‘preponderance of the evidence’

standard employed in most civil cases, to the ‘clear

and convincing’ standard reserved to protect

particularly important interests in a limited number

of civil cases, to the requirement that guilt be proved

‘beyond a reasonable doubt’ in a criminal prosecution.”

California ex rel. Cooper v. Mitchell Bros. Santa Ana

Theater, 454 U.S. 90, 93 (1981). And although “[t]he

precise verbal formulation of th[e] standard

varies, . . . phrases such as ‘clear and convincing,’

‘clear, cogent, and convincing,’ and ‘clear, unequivocal,

and convincing’ have all been used to require a

plaintiff to prove his case to a higher probability than

is required by the preponderance . . . standard.” Id. at

93 n.6 (emphasis added). Thus, in our legal system,

the next step ratcheting above a preponderance

standard is clear and convincing evidence.

Perhaps recognizing this inescapable logic, the

Ortiz

court

attempted

harmonize

the

preponderance standard with “approximate balance”

by rejecting the obvious mathematical implications of

the preponderance standard—asserting that “[t]his

burden of proof is not amenable to any mathematical

formula, such as the often-recited ‘fifty-one

percent/forty-nine percent’ rule.” Ortiz, 274 F.3d at

1365. But the 51%/49% rule, as Ortiz terms it, is

exactly what drives the preponderance standard.

Putting aside on this fundamental view of the

preponderance standard does not dispel the issue.

And although Ortiz cites two cases in support, neither

is availing.3

The concept of the 51%/49% rule is both intuitive

and definitional: it corresponds with the notion that,

at a certain tipping point, a fact becomes more likely

than not, and crucially expresses the threshold

boundary for persuasion under that lower burden of

proof. Of course, the weight of evidence in a case

cannot always literally be reduced to objectively

determined probabilistic figures; determining if a fact

is 61% vs. 63% likely may be impossible in many

instances. Nevertheless, the concept of 51% vs. 49%

Regarding In re Winship, Justice Harlan’s concurring comment

does not attack the 51%/49% rule, but instead expresses his view

that the preponderance test is not about mechanically tallying

the quantity of evidence, but rather about whether the evidence

supports the existence of a fact more probably than its

nonexistence. 397 U.S. 358, 37 (1970) (Harlan, J., concurring).

This in no way dislodges the 51%/49% rule. Similarly, Sargent

v. Mass. Acc. Co. discusses generalized mathematical

probabilities of how something may or may not have occurred.

307 Mass. 246, 250 (1940). It does not reject the 51%/49% rule;

in fact, its focus on weighing evidence to determine if a fact is

more likely than not fits squarely within the 51%/49% rule.

is more intuitive, embodying the idea that even

roughly balanced evidence favors one side slightly

more than the other.

That is not an absurd

mathematical exercise, but rather (as Ortiz admits) an

often-recited rule4 that is critical in the context of

statutory schemes involving equipoise or, as here, an

approximate balance of evidence.

For these reasons, the preponderance standard has

no place here—and the en banc court’s unsupported

attempt at rebranding the standard changes nothing.

Thus, in cases where the evidence is “approximately

balanced,” with a veteran falling short of equipoise, a

finding against the veteran should only be based upon

clear and convincing evidence.5

See, e.g., Nat’l Lime Ass’n v. EPA, 627 F.2d 416, 453 n.139 (D.C.

Cir. 1980) (“[T]he standard of ordinary civil litigation, a

preponderance of the evidence, demands only 51% certainty.”)

(quoting Ethyl Corp. v. EPA, 541 F.2d 1, 28 n.58 (D.C. Cir.

1976));Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349, 1357

n. 2 (6th Cir. 1992) (“Reduced to a percentage, [the

preponderance standard] requires proof of one’s case to at least

51 percent of the evidence.”).

In the event the Court does not agree that clear and convincing

evidence is the logically applicable standard, it is still

indisputably the case that a bare preponderance of the evidence

cannot coexist with the “approximate balance” provision. The

only other option is a reframing of what the en banc court tried

to accomplish with its unmoored “persuasive evidence”

standard—somehow maintaining the “weightier” side of the

preponderance spectrum while holding that the “lighter” end

cannot prevail against veterans with favorable evidence

III Lynch Introduces Further Confusion at the

VA, Impacting Hundreds of Thousands of

Veterans.

The Federal Circuit purported “to eliminate the

potential for confusion going forward” by attempting

to clarify the preponderance evidence standard

articulated in Ortiz. See Lynch, 24 F, 4th at 781. It

did the opposite. The VA’s application of the benefitof-the-doubt rule post-Lynch has been uneven at best.

And, in close cases, misapplying the benefit-of-thedoubt doctrine will lead the VA to wrongfully deny a

veteran the benefits he or she has earned. Given the

sheer volume of claims before the VA, the Court

should adopt an interpretation of § 5107(b) that is

faithful to what Congress intended.

approaching 49%. For instance, perhaps 60% against a veteran

would not amount to clear and convincing evidence, but still

constitutes a “weightier” preponderance indicating the veteran

is not close enough to equipoise to cross the protective

“approximate balance” threshold. On the other hand, perhaps

46% in favor of a veteran is close enough to be considered roughly

balanced, and the 54% against the veteran is not a substantial

enough preponderance to prevail. It may be the en banc court’s

opinion attempted to accomplish such an approach, but if so, it

failed. It offered no principled way for courts or the VA to

determine the proper thresholds to apply, and it may ultimately

prove to be an impossible task to draw such distinctions within

the preponderance framework—hence, the preferability of the

clear and convincing evidence standard.

A. The Benefit-of-the-Doubt Rule is the Bedrock

of VA Disability Adjudications.

In Fiscal Year (FY) 2020, more than 250,000 U.S.

veterans began receiving disability benefits to

compensate them for diseases, injuries, or deaths

incurred or aggravated during their military service.

U.S. VETERANS BENEFITS ADMIN., Annual Benefits

Report, FY2020 at 70. The average veteran receiving

compensation benefits had six service-connected

disabilities such as tinnitus, hearing loss, limited

range of motion, and post-traumatic stress disorder.

Id. Vietnam-era veterans made up 28% of recipients

and their dependents made up roughly two-thirds of

dependent-recipients. Id. at 72.

Unfortunately, not all veterans receive the

compensation they are entitled to immediately. If

after a specialist at a VA regional office initially

adjudicates a claim and the veteran is not pleased

with the result, the veteran may request a higherlevel review at the regional office, filing a

supplemental claim at the regional office, or appealing

directly to the Board of Veterans’ Appeals. See 38

U.S.C. § 5104C(a)(1); 38 C.F.R. § 19.2(d). In FY2021,

the Board of Veterans’ Appeals docketed 74,834

appeals under the Appeals Modernization Act

(“AMA”) and received an additional 47,853 legacy

appeals.6 DEP’T OF VETERANS AFFAIRS, Board of

The Veteran Appeals Improvement and Modernization Act

(AMA) of 2017 (Pub. L. 115-55) was intended to modernize the

Veterans’ Appeals Annual Report Fiscal Year (FY)

2021 (December 2021) at 31. The Board issued 20,494

AMA decisions in FY2021 that decided a total of

nearly 50,000 issues, allowing approximately a

quarter, denying a third, and remanding a third. Id.

at 38 (the remaining issues were resolved as “other”).

If a veteran is still dissatisfied with the outcome of his

or her claim following the administrative appeal, a

veteran may appeal the case to the Court of Appeals

for Veterans Claims. 38 U.S.C. § 7261.

The benefit-of-the-doubt rule applies to “any issue

material to the determination of a matter” including

the existence or degree of a disability or its service

connection. See, 38 U.S.C. § 5107(b) (emphasis

added). Accordingly, the VA may consider if and how

the rule applies numerous times throughout a single

adjudication. See, e.g., Title Redacted by Agency, No.

10-36 095A, 2022 WL 1637061, at *5–7 (Bd. Vet. App.

Mar. 31, 2022) (applying the benefit-of-the-doubt test

to find that the criteria for a disability rating of 20%

for right knee injury was met; the criteria for a service

connection to obstructive sleep apnea was not met;

and the criteria for a service connection to irritable

bowel syndrome as a secondary service-connected

anxiety disorder was met).

claims and appeals process of the legacy system. In contrast to

the linear appeals process of the legacy system, the AMA

includes three decision review options for disagreements with

benefits decisions. See Pet’r’s Br. 5.

Thus, ensuring that the VA applies the correct

standard of proof is critical, given that the agency

potentially applies the benefit-of-the-doubt rule

hundreds of thousands of times in a single year.

B. Lynch Has Created

Confusion at the VA.

More,

Not

Less,

Despite the Federal Circuit’s goal of eliminating

confusion at the VA, Lynch left the agency more, not

less, room for misinterpretation.

The VA’s

articulation and application of the approximate

balance test post-Lynch has been inconsistent.

The Board of Veterans’ Appeals continues to apply

Ortiz’s preponderance standard, further confirming

that it and the persuasive evidence standard are one

and the same. See, e.g., Title Redacted by Agency, No.

210915-185717, 2022 WL 669062, at *8–9 (Bd. Vet.

App. Jan. 28, 2022) (“For these reasons, the

preponderance of the evidence is against a finding

that the Veteran’s PTSD warrants a rating in excess

of 50% prior to March 23, 2021. Accordingly, the

Board finds that the benefit-of-the-doubt rule is not

applicable as the evidence is not in approximate

balance, and entitlement to increased ratings for

PTSD is not warranted.”); Title Redacted by Agency,

No. 12-19 376 2022 WL 1637295, at *6 (Bd. Vet. App.

Mar. 31, 2022) (“In reaching the above conclusions,

the Board has considered the applicability of the

benefit of the doubt doctrine. However, as the law as

well as the preponderance of the probative evidence is

against the claim, the Board finds that that [sic] this

doctrine is not applicable in the instant appeal.”); Title

Redacted by Agency, No. 22018873, 2022 WL 1614709,

at *8 (Bd. Vet. App. Mar. 30, 2022) (“[A]s the

preponderance of the evidence is against the claim,

the Board finds that the doctrine is not for

application.”) (citing Lynch; Ortiz).

Likewise, the Veterans Court has struggled to

make sense of Lynch. The court has remanded some,

but not other appeals in light of the decision, and has

been inconsistent in its reasoning. See Hopkins v.

McDonough, No. 21-1519, 2022 WL 443023, at *3 (Vet.

App. Feb. 14, 2022) (“[T]he Board considered the . . .

pre-Lynch articulation of the doctrine. While such an

analysis will not always—perhaps even not most of

the time—necessitate a remand because one can

assess the Board's decision as a whole under the

Lynch formulation, we think this case requires

remand,” where determining the cause of a disability

would have required “speculation”); Akins v.

McDonough, No. 20-8787, 2022 WL 702386, at *1 (Vet.

App. Mar. 9, 2022) (remanding in light of Lynch

without explaining how the development may require

a change in the Board’s analysis); Hicks v.

McDonough, No. 20-8264, 2022 WL 1223015, at *6

(Vet. App. Apr. 26, 2022) (citation omitted)

(concluding remand was not warranted because “it is

clear that ‘the Board made extensive findings that

show it was persuaded that [the veteran] was not

entitled to a disability rating greater than [50%]’ for

his psychiatric condition” despite finding the Board’s

decision “imperfect”).

C. Misapplication of the Benefit-of-the-Doubt

Rule Potentially Results in the Denial of

Benefits to Deserving Veterans

The practical effect of putting a bare

preponderance standard on the VA is immeasurable.

It places the burden on the veteran to shoulder a

greater portion of the risk of error. As this Court has

explained, a standard of proof is effectively a

judgment about which party should bear the risk of a

factfinder being wrong in a case of mixed evidence.

Addington v. Texas, 441 U.S. 418, 423 (1979). Under

a preponderance evidence standard of proof, litigants

“share the risk of error in roughly equal fashion.”

Addington, 441 U.S. at 423. Society has “a minimal

concern” in the outcome of disputes governed by this

standard, id., thus, the standard need not “express[] a

preference for one side’s interests.” Herman &

MacLean v. Huddleston, 459 U.S. 375, 390 (1983).

This is certainly not the case with veterans’ claims.

Cases of mixed evidence are precisely those that

could (and, recognizing Congress’s largesse towards

veterans, should) be resolved in the veteran’s favor

with the correct application of the approximate

balance test. Yet, under the standard articulated in

Lynch, if the VA is “persuaded” by the evidence

against a veteran’s claim, despite the evidence being

in approximate balance, the agency would wrongfully

deny the veteran’s claim. The end result is that a

significant number of veterans will be denied benefits

the statute entitles them to receive.

For example, although Congress has attempted to

make it easier for veterans to obtain compensation

benefits after being exposed to toxic substances, see

e.g., The Agent Orange Act of 1991, Pub. L. No. 102-4

(1991) (codified as amended 38 U.S.C. § 101 et seq. 38

U.S.C. § 241; 38 U.S.C. § 1154), veterans and their

survivors continue to struggle to demonstrate serviceconnection in instances where the medical literature

has yet to definitively tie a particular disease to toxic

exposure.7 See Honoring Our Promise to Address

For example, despite submitting three medical opinions—

including one from a VA examiner tying a veteran’s kidney

disease and sarcoidosis to his exposure to Agent Orange during

his service in Vietnam, the VA found that the preponderance of

the evidence was against a veteran’s claim for service-connected

benefits. Title Redacted by Agency, No. 15-46 967, 2022 WL

1594185 at *4 (Bd. Vet. App. Mar. 27, 2022). The VA assigned

more weight to a VA examiner’s conclusion that the Veteran’s

sarcoidosis and chronic kidney/renal disease were “less likely

than not” caused by Agent Orange exposure based on the

examiner’s “review of the medical literature.” Id. at *3. See also

Title Redacted by Agency, No. 15-24 191, 2022 WL 1435840, at

*1 (Bd. Vet. App. Mar. 12, 2022) (denying a service-connected

death benefit to the surviving spouse of a highly decorated

Vietnam veteran who presented medical opinion that the

veteran’s Agent Orange exposure during his service could have

caused the metastatic malignant melanoma that resulted in his

death).

Comprehensive Toxics Act of 2021, H.R. 3967 117th

Cong. (2021).

In another instance, the Board denied a widow’s

claim that her husband’s lung disorder was caused by

asbestos exposure while he was working in the boiler

and engine room on the U.S.S. Oglethorpe from 1956

to 1959, despite receiving three private medical

opinions in support of the service connection. Title

Redacted by Agency, No. 16-45 912, 2022 WL 1450256,

at *1–2 (Bd. Vet. App. Mar. 17, 2022). Although it

assigned “some” probative value to his doctor’s opinion

that his lung damage was likely related to this

asbestos exposure that occurred during his service, id.

at *4, the Board found that there was “not an

approximate balance of evidence as to warrant the

application of the benefit-of-the-doubt rule” in light of

a VA examiner’s opinion that the veteran’s COPD was

not asbestos related. Id. at *6.

Similarly, the Board denied a veteran’s serviceconnected disability claim for non-Hodgkin’s

lymphoma he argued developed as a result of exposure

to ionizing radiation experienced during the cleanup

of a nuclear test site. Title Redacted by Agency, No.

15-07 507, 2022 WL 1593537, at *1 (Mar. 25, 2022).

Although non-Hodgkin’s lymphoma is presumed to be

associated with radiation exposure under certain

circumstances, the Board explained that cleanup

activities at the site did not trigger the legal

presumption. Id. at *4 citing 38 U.S.C. § 1112(c) and

38 C.F.R. § 3.309(d). The veteran reported that he

wore no protective suits, masks, or gloves during the

cleanup and submitted numerous medical opinions

tying the disease to the radiation exposure. Id. at *24. Yet the Board found a single opinion finding that

radiation was unlikely to have caused his cancer to be

“probative” and “carry much weight.” Id. at *4–

6. Accordingly, the Board concluded that “[a]s most

of the competent evidence persuasively weighs

against the claim (that is to say, is neither in

approximate balance nor nearly equal), the benefit-ofthe-doubt rule is inapplicable.” Id. at *7 (citing Lynch).

These claims exemplify the kinds of close cases the

VA must resolve on a regular basis where although

there may be a preponderance of evidence against the

veteran’s claim, the evidence is still in approximate

balance and thus should be resolved in the veteran’s

favor. By continuing to apply a preponderance or

persuasive evidence standard, the VA continues to

wrongfully deny deserving veterans the benefit of the

doubt, depriving them of well-earned compensation.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,