Amicus Curiae Brief — Joshua E. Bufkin, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs

No. 23-713

IN THE

Supreme Court of the United States

JOSHUA E. BUFKIN AND NORMAN F. THORNTON,

Petitioners,

v.

DENIS R. MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

BRIEF OF AMICUS CURIAE

DISABLED AMERICAN VETERANS

SUPPORTING PETITIONERS

Megan Hall

DISABLED AMERICAN

VETERANS

3725 Alexandria Pike

Cold Spring, KY 41076

Amy F. Odom,

Counsel of Record

Robert V. Chisholm

Zachary Stolz

CHISHOLM CHISHOLM

& KILPATRICK LTD

321 S Main St #200

Providence, RI 02903

(401) 331-6300

aodom@cck-law.com

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 2

ARGUMENT ............................................................. 4

I.

Congress intended that judicial

review in the Veterans Court would

"substantially ameliorate"

unintended but avoidable

injustices that are unique to VA

benefits decisions. ............................. 4

II.

Unintentional but avoidable

individual injustices continue to

plague the VA benefits

adjudication system, particularly

in claims involving exposure to

toxic chemicals. ............................... 6

III.

Section 7261(b)(1) provides the

Veterans Court with a mechanism

for ensuring fair treatment for

similarly situated veterans. ........ 13

CONCLUSION ....................................................... 16

ii

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City,

105 S.Ct. 1504 (1985) ........................................... 15

Brown v. Gardner,

115 S.Ct. 552 (1994) ............................................... 4

Burlington N. & Santa Fe Ry. Co. v. Surface Transp.

Bd.,

403 F.3d 771 (D.C. Cir. 2005)................................. 5

Euzebio v. McDonough,

989 F.3d 1305 (Fed. Cir. 2021) ........................... 5, 7

Lynch v. McDonough,

21 F.4th 776 (Fed. Cir. 2021) ............................... 15

Statutes

36 U.S.C. § 50301 ....................................................... 1

38 U.S.C. § 1116 ....................................................... 10

38 U.S.C. § 1116(a)(3) ................................................ 6

38 U.S.C. § 1116(d)(1)-(5)........................................... 7

38 U.S.C. § 1116A ................................................ 7, 10

38 U.S.C. § 1116B ................................................ 7, 10

38 U.S.C. § 1116B(a)(2) ............................................ 11

38 U.S.C. § 5107(b)............................................... 5, 10

38 U.S.C. § 7261(a)................................................... 13

38 U.S.C. § 7261(a)(4) ................................................ 5

38 U.S.C. § 7261(b)................................................... 13

38 U.S.C. § 7261(b)(1) .............................2, 5, 6, 13, 14

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

105 Stat. 11 (1991).................................................. 7

Veterans Judicial Review Act, Pub. L. No. 100-687,

102 Stat. 4105 (1988).............................................. 4

iii

Veterans Benefits Act of 2002, Pub. L. No. 107-330, §

401, 116 Stat. 2820 (2002) ...................................... 5

Regulations

38 C.F.R. § 3.102 (2024) ............................9, 10, 12, 14

38 C.F.R. § 3.307(a)(6) (2024) .................................. 10

38 C.F.R. § 3.307(a)(6)(i) (2024) ................................. 8

38 C.F.R. § 3.307(a)(6)(iv) (2024) ............................. 11

38 C.F.R. § 3.307(a)(6)(v) (2024) ................................ 7

Herbicide Exposure and Veterans With Covered

Service in Korea, 74 Fed. Reg. 36640-02

(July 24, 2009) ...................................................... 11

Updating VA Adjudication Regulations for Disability

or Death Benefit Claims Related to Exposure to

Certain Herbicide Agents, 89 Fed. Reg. 9803

(proposed Feb. 12, 2024) ................................... 7, 10

Other Authorities

134 CONG. REC. 31465 ....................... 4-5, 6, 11, 13, 14

Department of Veterans Affairs Budget Request for

Fiscal Year 2002: Hearing before the H. Comm. on

Veterans’ Affairs, 107th Cong. 94-95 (2001) .......... 2

H.R. REP. NO. 100-963 ............................................... 4

Implementation of the SFC Heath Robinson

Honoring Our PACT Act: Hearing before the S.

Comm. on Veterans’ Affairs,

117 Cong. 2 (2022) ................................................ 10

Pending Benefits Legislation: Hearing before the S.

Comm. on Veterans’ Affairs,

107th Cong. 61 (2001)............................................. 7

Pending Legislation: Hearing before the S. Comm. on

Veterans’ Affairs, 107 Cong. 47 (2002) .................. 2

S. REP. NO. 107-234 .................................................... 5

iv

Title Redacted by Agency,

Bd. Vet. App. 0517111, 2005 WL 3908032 ............ 9

Title Redacted by Agency,

Bd. Vet. App. 1502630, 2015 WL 1195279 ...... 9, 14

Title Redacted by Agency,

Bd. Vet. App. 1514828, 2015 WL 3527944 ...... 9, 14

Title Redacted by Agency,

Bd. Vet. App. 1541992, 2015 WL 6947779 .......... 12

Title Redacted by Agency,

Bd. Vet. App. 1543489, 2015 WL 7875376 .......... 12

Title Redacted by Agency,

Bd. Vet. App. 1713395, 2017 WL 2499887 ..... 12-13

Title Redacted by Agency,

Bd. Vet. App. 1722882, 2017 WL 3409393 .......... 12

Title Redacted by Agency,

Bd. Vet. App. 1739996, 2017 WL 5251829 ............ 9

Title Redacted by Agency,

Bd. Vet. App. 1746633, 2017 WL 6052096 .. 8, 9, 14

Title Redacted by Agency,

Bd. Vet. App. 18142532, 2018 WL 9711583 ........ 12

Title Redacted by Agency,

Bd. Vet. App. 19114906, 2019 WL 4655608 ........ 12

Title Redacted by Agency,

Bd. Vet. App. 20029813, 2020 WL 3559268 ... 11-12

Title Redacted by Agency,

Bd. Vet. App. 22060861, 2022 WL 17665858 11, 12

1

INTEREST OF AMICUS CURIAE 1

Disabled American Veterans is a federally chartered veterans service organization, founded to serve

the interests of the nation’s disabled veterans. 36

U.S.C. § 50301 et seq. DAV has more than a million

members, all of whom are service-connected disabled

veterans. Although DAV operates several charitable

programs that serve the interests of its constituency,

its marquee program, and the one for which it is best

known, is the National Service Program. Through

that program, and from approximately 100 locations

around the United States and Puerto Rico, DAV service officers provide free assistance to veterans and

their families with their claims for benefits from the

United States Department of Veterans Affairs. In

2023, DAV assisted veterans and their families in filing over 209,000 claims for benefits, and DAV-represented veterans received more than $28 billion in

earned benefits.

This case presents a question that is important to

the nation’s disabled veterans and their families. In

exchange for their sacrifices for this nation, the Government has promised to afford veterans the benefit

of the doubt in deciding their VA benefits claims. And

it gave the U.S. Court of Appeals for Veterans Claims

the tools to enforce the Government’s promise. However, instead of scrutinizing VA’s application of the

benefit of the doubt as Congress intended, the U.S

1 No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than amicus curiae and its counsel made a monetary contribution intended to fund the preparation or submission of the brief.

2

Court of Appeals for Veterans Claims—with the

blessing of the U.S. Court of Appeals for the Federal

Circuit—conducts an extraordinarily deferential review of VA’s (often erroneous) decision.

DAV has long been troubled by the level of deference that the Veterans Court generally affords to the

Board of Veterans’ Appeals. See, e.g., Pending Legislation: Hearing before the S. Comm. on Veterans’ Affairs, 107 Cong. 47 (2002) (statement of Joseph A.

Violante, National Legislative Director, Disabled

American Veterans); Department of Veterans Affairs

Budget Request for Fiscal Year 2002: Hearing before

the H. Comm. on Veterans’ Affairs, 107th Cong. 94-95

(2001) (statement of David W. Gorman, Executive Director, Disabled American Veterans). The Veterans

Court’s refusal to provide claimants with the robust

review required under 38 U.S.C. § 7261(b)(1) has

thwarted a main goal behind the availability of judicial review of VA benefits decision—to substantially

ameliorate the unintended but avoidable individual

injustices that occur in the VA claims adjudication

process.

INTRODUCTION AND SUMMARY OF

ARGUMENT

In the same legislation that codified the longstanding doctrine that VA benefits claimants be given

the benefit of the doubt, Congress created an

institution aimed at ensuring fairness in VA’s claims

adjudication system—the Veterans Court. It was

understood that unintentional individual injustices

were bound to happen in an agency as vast as VA.

3

The Veterans Court, it was hoped,

substantially ameliorate these injustices.

would

Opportunities for unintentional but avoidable

injustices abound in VA’s adjudication of claims

involving exposure to toxic chemicals. Though VA

presumes that veterans who served at some locations

were exposed to dangerous herbicides, veterans who

served at other locations where herbicides were used,

tested, or stored must prove exposure.

These

veterans include those who served at Eglin Air Force

Base, where regular aerial herbicide agent testing is

known to have occurred for a decade. They also

include Vietnam Era veterans who worked with

HAWK missiles in Korea, as those missiles were

known to be in an area where the U.S. military used

herbicide agents. These veterans—like all veterans—

are entitled to the benefit of the doubt when seeking

to prove that they were exposed to herbicide agents.

But Board members apply the rule inconsistently,

affording it to some veterans but not others, even

when the evidence is largely the same.

Congress equipped the Veterans Court with the

tools for ensuring that the Board affords the benefit

of the doubt to all veterans. The Veterans Benefits

Act of 2002 authorizes the Veterans Court to “take

due account” of the benefit-of-the-doubt rule,

independent of its review of Board fact-finding. This

rule permits the Court to review whether the evidence

before the Board as to a veteran’s exposure to

herbicide agents was in “approximate balance”

without deference.

4

ARGUMENT

I.

Congress intended that judicial review in

the Veterans Court would “substantially

ameliorate” unintended but avoidable

injustices that are unique to VA benefits

decisions.

Before 1988, judicial review of VA benefits decisions was unavailable, and VA lived in “splendid isolation.” Brown v. Gardner, 115 S.Ct. 552, 557 (1994)

(quoting H.R. REP. NO. 100-963, at 10 (1988)). That

changed when Congress enacted the Veterans Judicial Review Act (VJRA). Pub. L. No. 100-687, 102

Stat. 4105 (1988). The VJRA bestowed upon the

newly created Veterans Court exclusive jurisdiction

to review benefits decisions of the Board of Veterans’

Appeals. Id. § 301.

A key goal of the VJRA was ensuring “[f]airness to

individual claimants before the VA.” 134 CONG. REC.

31465 (1988) (statement of Sen. Alan Cranston).

Lawmakers recognized that VA decisionmakers “are

generally fair-minded, conscientious individuals who

generally make a concerted effort to carry out their

responsibilities in an evenhanded fashion.” Id. However, they also understood that “VA is a very large

and complex Federal agency” that handles a “tremendous volume of claims.” Id. This “provides a significant opportunity for individual injustices.” Id.

By allowing judicial review of the agency’s individual decisions, the VJRA was meant to “substantially

ameliorate” the “unintended unfair, but potentially

avoidable, results.” Id. In the end, the Veterans

5

Court’s “determin[ation] whether governmental action . . . is fundamentally fair would benefit all parties

involved.” Id. In particular, when the Veterans Court

held that VA’s actions were “fundamentally unfair,”

VA could take steps “to improve the process so as to

ensure that the agency is fulfilling its million [sic] to

serve veterans in the best possible fashion.” Id.

Thus, the VJRA authorizes the Veterans Court to

review “whether the Board or VA . . . ‘applie[d] different standards to similarly situated [individuals] and

fail[ed] to support this disparate treatment with a

reasoned explanation and substantial evidence.’”

Euzebio v. McDonough, 989 F.3d 1305, 1322 (Fed. Cir.

2021) (alterations in original) (quoting Burlington N.

& Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d

771, 777 (D.C. Cir. 2005)). Additionally, the Veterans

Court must “hold unlawful and set aside or reverse”

clearly erroneous findings of material fact adverse to

the claimant. 38 U.S.C. § 7261(a)(4).

The Veterans Benefits Act of 2002 added another

layer to this review—the Veterans Court must “review the record of proceedings before the Secretary

and the Board” and “take due account of” the benefitof-the doubt rule under 38 U.S.C. § 5107(b). Pub. L.

No. 107-330, § 401, 116 Stat. 2820 (2002) (codified at

38 U.S.C. § 7261(b)(1)). As the Senate Committee for

Veterans Affairs explained, the benefit-of-the-doubt

rule “provide[s] a unique bias in favor of the claimant

when the evidence is balanced” and must be reflected

in the Veterans Court’s review of Board decisions. S.

REP. NO. 107-234, at 17 (2002).

6

However, as discussed further in Section III, the

courts have interpreted section 7261(b)(1) as requiring the Veterans Court to review VA’s application of

the benefit of the doubt under a highly deferential

standard. In the meantime, the volume of claims processed by VA has dramatically increased, and, in

turn, so has the opportunity for the same unintentional but avoidable individual injustices that

prompted the VJRA. 2 See 134 CONG. REC. 31465.

II. Unintentional but avoidable individual

injustices

plague

the

VA

benefits

adjudication system, particularly in claims

involving exposure to toxic chemicals.

Unintentional but avoidable injustices occur with

relative frequency in the adjudication of disability

claims based on exposure to herbicide agents. 3 The

Government has long recognized that the herbicides

used for defoliation and crop destruction in support of

2 In fiscal year 1989 (the year Congress passed the VJRA),

the Board received 44,229 appeals. Annual Report of the Chairman, Board of Veterans’ Appeals, p. 7, U.S. Dep’t of Veterans

Affs., available at https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA1991AR.pdf (last accessed June 24, 2024). By fiscal year 2023, that number had increased to 101,865. Annual

Report Fiscal Year (FY) 2023, U.S. Dep’t of Veterans Affs., Board

of

Veteran’s

Appeals,

available

at

https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/bva2023ar.pdf (last accessed June 24, 2024).

3 As used herein, “herbicide agent” refers to “a chemical in

an herbicide used in support of the United Stats and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.” See 38

U.S.C. § 1116(a)(3).

7

U.S. operations in Vietnam have adverse (and

sometimes deadly) health consequences. See Agent

Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11

(1991); see also Euzebio, 989 F.3d at 1310-14

(discussing the history of the Agent Orange Act).

Because of the difficulty of proving exposure to those

chemicals, Congress has directed VA to presume that

veterans who served in some geographical locations

were exposed. See 38 U.S.C. §§ 1116(d)(1)-(5), 1116A,

1116B.

VA acknowledges that herbicide agent exposure

also could have occurred in other geographical areas

within and outside the United States. 38 C.F.R. §

3.307(a)(6)(v) (2024); Updating VA Adjudication

Regulations for Disability or Death Benefit Claims

Related to Exposure to Certain Herbicide Agents, 89

Fed. Reg. 9803, 9805 (Feb. 12, 2024) (proposing to

amend section 3.307). Nonetheless, many veterans

seeking to prove exposure in the locations where VA

concedes dangerous herbicides were used face an

uphill battle. See Pending Benefits Legislation:

Hearing before the S. Comm. on Veterans’ Affairs,

107th Cong. 61 (2001) (statement of Rick Surratt,

Deputy National Legislative Director, Disabled

American Veterans).

Take veterans who served at Eglin Air Force Base

in the Florida panhandle between 1962 and 1970, for

example. The government has publicly acknowledged

that it conducted multiple tests involving the aerial

dissemination of herbicide agents at Eglin during that

period. See Herbicide Tests and Storage in the U.S.,

U.S. Dep’t of Veterans Affs., available at

8

https://www.publichealth.va.gov/exposures/agentora

nge/locations/tests-storage/usa.asp (last accessed

June 24, 2024). These tests included “spray flights”

during which “[m]ultiple passes were done . . . at

varying altitudes and flow rates.” Id.; see also Young,

A., Long overlooked historical information on Agent

Orange and TCDD following massive applications of

2,4,5-T-containing herbicides, Eglin Air Force Base,

Florida,

2004,

available

at

https://pubmed.ncbi.nlm.nih.gov/15341310/

(last

accessed June 24, 2024). According to experts, “each

hectare on the Eglin test grid received at least 1,300

times more TCDD 4 than a hectare sprayed with Agent

Orange in Vietnam.” Id. Unlike in Vietnam, where

the tree canopy intercepted most of the chemicals, the

vegetation had been largely removed from the test

area in Eglin. Id. All told, the military dumped more

than 150,000 kilograms of 2,4,5-T and 2,4-D—the

main ingredients in Agent Orange 5—on Eglin. Id.

Based on this information alone, the Board has

invoked the benefit-of-the-doubt rule and conceded

that veterans who served on Eglin AFB between 1962

and 1970 were exposed to herbicide agents. See Title

Redacted by Agency, Bd. Vet. App. 1746633, 2017 WL

6052096, No. 15-02 336, at *3 (Oct. 19, 2017); Title

VA regulations identify “2,4,5-T and its contaminant

TCDD” as an herbicide agent “used in support of the United

States and allied military operations in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(i) (2024).

4

5 U.S. Dep’t of Veterans Affs., War Related Illness and Injury Center, Agent Orange, available at https://www.warrelatedillness.va.gov/education/exposures/agent-orange.asp

(last accessed July 3, 2024).

9

Redacted by Agency, Bd. Vet. App. 1514828, 2015 WL

3527944, No. 11-10 810, at *2 (Apr. 7, 2015); Title

Redacted by Agency, Bd. Vet. App. 1502630, 2015 WL

1195279, No. 12-22 324, at *2 (Jan. 20, 2015). In those

cases, the Board correctly concluded that the evidence

of repeated herbicide testing at Eglin AFB did not

“satisfactorily prove or disprove the claim.” 38 C.F.R.

§ 3.102 (2024); see 2017 WL 6052096, No. 15-02 336,

at *3; 2015 WL 3527944, No. 11-10 810, at *2; 2015

WL 1195279, No. 12-22 324, at *2. It therefore

resolved “reasonable doubt”—a doubt “within the

range of probability”—in the veterans’ favor. See 38

C.F.R. § 3.102. In these cases, the benefit-of-thedoubt doctrine worked as intended.

But the Board has refused to invoke the rule for

other, similarly situated veterans based on virtually

the same evidence. Some Board members demand

evidence that the veteran was physically present in

the test areas. See, e.g., Title Redacted by Agency, Bd.

Vet. App. 1739996, 2017 WL 5251829, No. 14-32 278,

at *6 (Sept. 18, 2017); Title Redacted by Agency, Bd.

Vet. App. 0517111, 2005 WL 3908032, No. 03-28 101,

at *6 (June 23, 2005).

As the Board decisions conceding exposure show,

however, evidence that a veteran served at Eglin AFB

while the military aerially disseminated 1,300 times

more TCDD per hectare than it did in Vietnam does

not, on its own, “satisfactorily prove or disprove the

claim” of herbicide agent exposure. 38 C.F.R. § 3.102.

That veteran is entitled to the benefit of reasonable

doubt because exposure under these circumstances is

“within the range of probability.” See id.

10

This is not to say that all veterans who served at

Eglin between 1962 and 1970 are entitled to a legal

presumption that they were exposed to herbicide

agents at Eglin. Current statutes and regulations do

not include Eglin as a location where herbicide agent

exposure is presumed. 6 See 38 U.S.C. §§ 1116, 1116A,

1116B; 38 C.F.R. § 3.307(a)(6). But the process for

creating statutory and regulatory presumptions of

toxic exposure has historically been long and

arduous. 7

The benefit-of-the-doubt rule assists

veterans in proving exposure when the law does not

yet presume it. And all veterans who served at Eglin

are entitled to resolution of reasonable doubt in their

favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

6 In 2024, VA proposed a rule creating a presumption of

herbicide agent exposure based on a list of sites created by the

Department of Defense in 2019. 89 Fed. Reg. at 9805-06. That

list includes sites at Eglin between 1962 and 1970. See Herbicide

Tests and Storage in the U.S., U.S. Dep’t of Veterans Affairs,

available at https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp#Florida (last accessed July

1, 2024).

7 Members of Congress and VA officials agree on this point.

See, e.g., Implementation of the SFC Heath Robinson Honoring

Our PACT Act: Hearing before the S. Comm. on Veterans’ Affairs, 117 Cong. 2 (2022) (statement of Sen. Jon Tester, Chairman) (stating that “it took far too long to pass the PACT Act,”

legislation which created new presumptions of toxic exposures);

Implementation of the SFC Heath Robinson Honoring our PACT

Act: Hearing before the S. Comm. on Veterans’ Affairs, 117 Cong.

5 (2022) (statement of Joshua Jacobs, Under Sec’y for Benefits,

Dept. of Veterans Affairs) (“Historically, the process for VA to

establish a new disability as a presumptive condition has taken

too long and been too complex.”).

11

The Board’s refusal to apply the benefit-of-thedoubt rule in some Eglin veterans’ claims is exactly

the type of “individual injustices” that the VJRA

sought to correct. See 134 CONG. REC. 31465. The

rule reflects a legislative policy decision that the

government, not the veteran, will bear the risk of

error. See Petitioners’ Br. at 6-7. But unlike similarly

situated Eglin veterans, the veterans who were

denied application of the rule were forced to bear that

risk.

Some veterans who worked on HAWK missiles 8 in

Korea during the Vietnam Era face a similar

injustice. During that period, the military dispensed

herbicide agents on a 155-mile strip of land near the

Korean Demilitarized Zone. See Herbicide Exposure

and Veterans With Covered Service in Korea, 74 Fed.

Reg. 36640-02, 36641 (July 24, 2009). VA therefore

presumes that veterans who served “in or near” the

DMZ during a specified period were exposed to

herbicide agents. 38 U.S.C. § 1116B(a)(2); see also 38

C.F.R. § 3.307(a)(6)(iv).

As the Board has found many times over, veterans

who worked on HAWK missiles in Korea often

travelled to sites near the DMZ. See, e.g., Title

Redacted by Agency, Bd. Vet. App. 22060861, 2022

WL 17665858, No. 16-40 793, at *4 (Oct. 31, 2022);

Title Redacted by Agency, Bd. Vet. App. 20029813,

8 HAWK missiles are medium range, surface-to-air guided

missiles that were deployed to Korea during the Vietnam Conflict. See HAWK, U.S. Army Aviation and Missile Life Cycle

Management

Command,

https://history.redstone.army.mil/miss-hawk.html (last accessed July 1, 2024).

12

2020 WL 3559268, No. 16-52 381, at *2 (Apr. 28,

2020); Title Redacted by Agency, Bd. Vet. App.

18142532, 2018 WL 9711583, No. 16-22 088, at *2

(Oct. 16, 2018); Title Redacted by Agency, Bd. Vet.

App. 19114906, 2019 WL 4655608, No. 17-33 715, at

*3 (Feb. 28, 2018); Title Redacted by Agency, Bd. Vet.

App. 1543489, 2015 WL 7875376, No. 14-07 326, at

*1-2 (Oct. 9, 2015); Title Redacted by Agency, Bd. Vet.

App. 1541992, 2015 WL 6947779, No. 08-20 942, at

*2-3 (Sept. 28, 2015). In some of those decisions, the

Board even cited the “known” or “confirmed” presence

of HAWK missiles along the DMZ. Title Redacted by

Agency, 2022 WL 17665858, Bd. Vet. App. 22060861,

No. 16-40 793, at *4; Title Redacted by Agency, Bd.

Vet. App. 1543489, 2015 WL 7875376, No. 14-07 326,

at*1.

In these cases, though travel to the DMZ was not

documented in the available official service records,

the Board found that a military occupational specialty

involving HAWK missiles and lay reports of travelling

to the DMZ did “not satisfactorily prove or disprove

the claim.” 38 C.F.R. § 3.102. The Board therefore—

correctly—resolved reasonable doubt in the veterans’

favor.

Other similarly situated veterans, however, have

been wrongly denied the benefit of the doubt based on

virtually the same evidence. In some cases, the Board

has demanded documentation of travel to the DMZ in

the official service records. See Title Redacted by

Agency, Bd. Vet. App. 1722882, 2017 WL 3409393,

No. 11-08 849A, *6-7 (June 20, 2017); Title Redacted

by Agency, Bd. Vet. App. 1713395, 2017 WL 2499887,

13

No. 12-08 472, at *4-5 (Apr. 25, 2017). As the many

decisions granting benefits show, evidence of HAWK

missile duties in Korea during the Vietnam Era,

coupled with self-reported travel to the DMZ, triggers

the benefit-of-the-doubt rule, notwithstanding the

absence of documentation.

Despite Board members’ “concerted effort to carry

out their responsibilities in an evenhanded fashion,”

the HAWK missile veterans whose claims were

denied based on the similar evidence suffered

“unintended unfair, but potentially avoidable,

results.” 134 CONG. REC. 31465

As discussed further in Section III, Congress

created the Veterans Court to “substantially

ameliorate” these results, and it equipped the court

with the tools to do so. See id.; see also 38 U.S.C.

§ 7261(a), (b). In holding that the Veterans Court

must defer to VA in applying the benefit of the doubt,

the Federal Circuit severely undercut the

effectiveness of these tools. DAV agrees with the

Petitioners that the Federal Circuit’s judgment

should be reversed.

III. Section 7261(b)(1) provides the Veterans

Court with a mechanism for ensuring fair

treatment for similarly situated veterans.

When properly construed, section 7261(b)(1)

requires the Veterans Court to (1) accept the facts as

found by VA (unless clearly erroneous), (2) determine

whether the evidence on one or more material issues

stands in approximate balance, and (3) review

14

whether the claimant received the benefit of the doubt

on those issues. See Petitioners’ Br. at 22.

Taking “due account” of the benefit-of-the-doubt

rule requires the Veterans Court to do more than

simply assess whether the Board committed error.

See Petitioners’ Br. at 32. The Court must also

determine whether the evidence “satisfactorily

prove[s] or disprove[s] the claim,” even if there is a

plausible basis for the Board’s underlying factual

findings.

Thus, even if the lack of direct evidence of

exposure could be a plausible basis for denying an

Eglin veteran’s claim, the Veterans Court must still

assess whether the evidence “satisfactorily prove[s] or

disprove[s] the claim.” 38 C.F.R. § 3.102. And as the

Board decisions finding exposure prove, it does not, so

the veteran is entitled to the benefit of the doubt. Bd.

Vet. App. 1746633, 2017 WL 6052096, No. 15-02 336,

at *3; Bd. Vet. App. 1514828, 2015 WL 3527944, No.

11-10 810, at *2; Bd. Vet. App. 1502630, 2015 WL

1195279, No. 12-22 324, at *2. By requiring the

Veterans Court to take due account of the benefit-ofthe-doubt rule based on review of the record before

the Board and Secretary, Congress equipped the court

with the tools necessary to ensure that similarly

situated Eglin veterans are treated fairly. See 38

U.S.C. § 7261(b)(1); 134 CONG. REC. 31465.

The Federal Circuit, however, does not recognize

this second step. It merely asks whether there is a

plausible basis for the Board’s finding that the

“persuasive evidence” is not in approximate balance.

15

Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir.

2021) (en banc).

Under this “persuasive evidence” standard, the

Veterans Court affords an extraordinary degree of

deference to the agency. Application of the benefit-ofthe-doubt-rule hinges on whether there is a plausible

basis for the Board’s conclusion that it was

unpersuaded by the evidence. Id. at 782. But the

persuasiveness of evidence is a highly subjective

matter, making it nearly impossible to prove there are

not “two permissible views of the evidence,” Anderson

v. City of Bessemer City, 105 S.Ct. 1504, 1511 (1985)—

persuasive and unpersuasive.

This highly deferential approach to taking “due

account” of the benefit-of-the-doubt rule cannot be

what Congress envisioned in enacting the VBA. See

Petitioner’s Br. at 40-41 (“Congress could not have

been clearer that it acted in 2002 to provide for more

searching appellate review of [Board] decisions, and

thus give full force to the benefit of the doubt

provision.” (quotations omitted)). The Court should

therefore reverse the Federal Circuit’s decisions.

16

CONCLUSION

The availability of judicial review of VA benefits

decisions and VA claimants’ right to the benefit of the

doubt work together to promote fairness in a system

for compensating veterans’ physical and mental

sacrifices to our nation.

The Federal Circuit’s

interpretation of the law is wholly divorced from this

legislative objective and this Court should reject it

accordingly.

Respectfully submitted,

July 9, 2024

Amy F. Odom

Counsel of Record

Robert V. Chisholm

Zachary Stolz

CHISHOLM CHISHOLM &

KILPATRICK LTD

321 S Main St #200

Providence, RI 02903

(401) 331-6300

aodom@cck-law.com