Amicus Curiae Brief — Joshua E. Bufkin, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs
Supreme Court briefJul 9, 2024
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23-713
In the Supreme Court of the United States
JOSHUA E. BUFKIN,
v.
PETITIONER,
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS,
RESPONDENT.
NORMAN F. THORNTON,
v.
PETITIONER,
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS,
RESPONDENT.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
BRIEF OF NATIONAL VETERANS LEGAL SERVICES
PROGRAM AND NATIONAL ORGANIZATION OF VETERANS’
ADVOCATES AS AMICI CURIAE IN SUPPORT OF
PETITIONERS
RENÉE A. BURBANK
ZACHARY R.M. OUTZEN
BARTON F. STICHMAN
NATIONAL VETERANS
LEGAL SERVICES PROGRAM
1100 Wilson Blvd., Ste. 900
Arlington, VA 22209
Renee.Burbank@nvlsp.org
Counsel for Amici Curiae
D. SHAYON GHOSH
Counsel of Record
F. GREG BOWMAN
LIAM J. MONTGOMERY
ANDREW G. BORRASSO
LUKE R. SÁNDOR
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
SGhosh@wc.com
Additional counsel listed on inside cover
DIANE BOYD RAUBER
NATIONAL ORGANIZATION OF
VETERANS’ ADVOCATES
1775 Eye Street, N.W.
Ste. 1150
Washington, DC 20006
DRauber@vetadvocates.org
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ..................................... 1
SUMMARY OF THE ARGUMENT ................................. 2
ARGUMENT ......................................................................... 4
I.
Congress enacted the “take due account”
provision to aid veterans in the VA disability
benefit process. .......................................................... 4
A.
The VA disability benefit process was
failing veterans before Congress enacted
the “take due account” provision. ............... 6
B.
Congress enacted the “take due account”
provision to ensure the benefit-of-thedoubt rule was properly applied and to
streamline resolution. ................................... 8
C.
When the “take due account” provision is
applied properly, veterans promptly
receive the disability benefits they have
earned. .......................................................... 10
II.
The agency and Federal Circuit misinterpret the
“take due account” rule to give the benefit of the
doubt to the Board rather than veterans. ............ 12
A.
The Veterans Court misused legislative
history to rewrite the statute, and the
Federal Circuit has acquiesced. ................ 15
B.
Veterans now endure more delay. ............ 18
III. To “take due account” of a legal rule requires
more than clear-error review, because questions
of law are for the courts. ........................................ 21
CONCLUSION ................................................................... 24
(I)
II
TABLE OF AUTHORITIES
Page
Cases:
Arellano v. McDonough, 143 S. Ct. 543 (2023) ................. 1
Butts v. Brown, 5 Vet. App. 532 (1993)............................... 6
Donnellan v. Shinseki, 24 Vet. App. 167 (2010) ........ 13, 14
Gilbert v. Derwinski,
1 Vet. App. 49 (1990) ...................................... 6, 8, 15, 22
Henderson v. Shinseki, 562 U.S. 428 (2011) ...................... 1
Interstate Commerce Commission v. Louisville &
Nashville Railroad Co., 227 U.S. 88 (2013) .............. 23
Kingdomware Technologies, Inc. v. United States,
579 U.S. 162 (2016) ......................................................... 1
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ............................... 1
Loper Bright Enterprises v. Raimondo,
Nos. 22-451, 22-129, slip op. (June 28, 2024) ............. 24
Padgett v. Nicholson,
19 Vet. App. 133 (2005) .................................... 10, 11, 15
Ramos-Rodriguez v. Principi,
No. 00-633, 2002 WL 1489434
(Vet. App. July 10, 2002) ........................................... 4, 5
Roane v. McDonough,
64 F.4th 1306 (Fed. Cir. 2023) .............................. 17, 23
Roberson v. Principi,
17 Vet. App. 135 (2003) (per curiam) ............. 15, 16, 17
Shinseki v. Sanders, 556 U.S. 396 (2009) ................. 2, 4, 22
Stanphill v. McDonough,
No. 22-2283, 2023 WL 6373807
(Vet. App. Sept. 29, 2023) ............................................ 12
Tadlock v. McDonough, 5 F.4th 1327 (Fed. Cir. 2021) .. 23
Turk v. Peake, 21 Vet. App. 565 (2008)............................. 12
Wells v. Principi, 18 Vet. App. 33 (2004) ......................... 16
III
Page
Statutes and Rule:
5 U.S.C. § 706 ....................................................................... 23
38 U.S.C.
§ 5107 ..................................................................... 2, 9, 17
§ 5902 ............................................................................... 1
§ 7252 ............................................................................. 16
§ 7261 ......................................... 3, 6, 9, 10, 16, 17, 23, 24
§ 7292 ............................................................................. 23
Veterans Appeals Improvement and Modernization Act
of 2017,
Pub. L. No. 115-55,
131 Stat. 1105 (2017) .................................................... 18
Veterans Benefits Act of 2002,
Pub. L. No. 107-330,
116 Stat. 2820 .................................. 2–6, 8–10, 12, 14–24
Federal Rule of Civil Procedure 50 ............................ 22, 23
Other Authorities:
148 Cong. Rec. (Nov. 14, 2002)
H8925 ............................................................................... 9
H9006 ......................................................................... 9, 10
Board Annual Report FY 1999,
http://tinyurl.com/529yjx2z ........................................... 6
Board Annual Report FY 2000,
http://tinyurl.com/msephscv ......................................... 6
Board Annual Report FY 2001,
http://tinyurl.com/4zckmds6 ......................................... 7
Board Annual Report FY 2021,
http://tinyurl.com/3bz3ywwc....................................... 18
Board Annual Report FY 2022,
http://tinyurl.com/4k7fbvuc......................................... 18
Board Annual Report FY 2023,
https://tinyurl.com/5n7fyehj ........................... 18, 19, 20
IV
Page
Other Authorities—continued:
Examining the VA Appeals Process; Ensuring HighQuality Decision-Making for Veterans’ Claims on
Appeal, Statement from Bergmann & Moore, LLC
to the Subcomm. on Disability Assistance and Mem’l
Affs. of the H. Comm. on Veterans Affs.
(Nov. 27, 2023), http://tinyurl.com/yhare63z ...... 20, 21
Pending Legislation: Hearing Before the S. Comm. on
Veterans’ Affairs, 107th Cong. 60 (2002) .................. 10
S. Rep. No. 107-234 (2002).................................................... 8
Statement of Kerry Baker, Disabled Veterans of
America, United States Senate Committee on
Veterans’ Affairs (Feb. 13, 2008),
http://tinyurl.com/76kj4fcx............................................ 9
Veterans Court Annual Reports FYs 1998–2007,
http://tinyurl.com/4pu5uwau......................................... 7
Veterans Court FY 2021 Annual Report,
http://tinyurl.com/2t49kzc9 ......................................... 19
Veterans Court FY 2022 Annual Report,
http://tinyurl.com/2xhpx4b8........................................ 19
Veterans Court FY 2023 Annual Report,
https://tinyurl.com/4xjanm3u ..................................... 19
Wright & Miller 9B Fed. Prac. & Proc. Civ. (3d ed. 2023)
§ 2524 ............................................................................. 23
§ 2536 ............................................................................. 23
INTEREST OF AMICI CURIAE 1
Amici curiae are two national veterans organizations.
Founded in 1981, the National Veterans Legal Services
Program (“NVLSP”) is a nonprofit organization that
works to ensure that the Nation’s 18 million veterans and
active-duty service members have access to federal
veterans benefits. NVLSP does so in part by serving as a
national support center that recruits, trains, and assists
thousands of volunteer lawyers and veterans’ advocates.
For over two decades, NVLSP has published the 2,400page Veterans Benefits Manual, the leading practice
guide on the subject.
The Secretary of Veterans Affairs has recognized
NVLSP as a veterans’ service organization authorized to
assist veterans in the preparation, presentation, and
prosecution of veterans’ benefits claims. See 38 U.S.C.
§ 5902. NVLSP has represented thousands of veterans in
proceedings before the Department of Veterans Affairs
(“VA”), the Board of Veterans’ Appeals (“Board”), and the
Court of Appeals for Veterans Claims (“Veterans Court”).
NVLSP also has filed numerous amicus briefs in this
Court (and others) in cases that present issues of broad
importance to veterans and the VA benefits system. See,
e.g., Arellano v. McDonough, 143 S. Ct. 543 (2023); Kisor
v. Wilkie, 139 S. Ct. 2400 (2019); Kingdomware Techs.,
Inc. v. United States, 579 U.S. 162 (2016); Henderson v.
1
Pursuant to Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part and that no person other
than amici or their counsel have made any monetary
contributions intended to fund the preparation or submission of
this brief.
(1)
2
Shinseki, 562 U.S. 428 (2011); Shinseki v. Sanders, 556
U.S. 396 (2009).
The National Organization of Veterans’ Advocates
(NOVA) is a not-for-profit educational membership
organization that was incorporated in 1993. NOVA has
more than 850 individual attorneys, agents, and qualified
members who represent our Nation’s military veterans,
their families, and their survivors before the VA and
federal courts. NOVA is committed to developing
veterans’ law and procedure through research, discussion,
education, and participation as an amicus before this
Court.
Amici appear in support of petitioners to explain the
deep-seated problems with the veterans disability benefit
process that Congress—at the urging of NVLSP and
others—attempted to remedy through the Veterans
Benefits Act (“VBA” or “Act”). The Federal Circuit’s
misinterpretation of the Act ignores the additional duties
Congress imposed on the Veterans Court to ensure that
veterans get the benefit of the doubt to which they have
long been entitled but that too often they have not
received.
SUMMARY OF THE ARGUMENT
The veterans disability benefit process is intended to
facilitate access to benefits for veterans disabled while
serving in the military. This system is uniquely proclaimant. For example, among other such features,
“[w]hen there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination of the matter, the Secretary [of Veterans
Affairs] shall give the benefit of the doubt to the
claimant.” 38 U.S.C. § 5107(b). Yet in practice, veterans
often have not received the benefit of the doubt from the
3
VA. Worse, until 1988, VA benefit decisions were not
judicially reviewed, and between 1988 and 2002, the
Veterans Court undertook APA-style review under which
substantial deference was afforded the agency. Not only
was this review ineffective in enforcing the benefit-of-thedoubt rule, but it also contributed to lengthy delays in
processing claims as the Veterans Court tended to
remand to the agency, and cases often bounced between
the Veterans Court and the Board.
Congress addressed these issues in the VBA, enacted
in 2002, by requiring the Veterans Court additionally to
more broadly “review the record of proceedings before
the Secretary and the Board,” and “take due account of
the Secretary’s application of” the benefit-of-the-doubt
rule. 38 U.S.C. § 7261(b), (b)(1). As the text and structure
of the statute indicate, the “take due account” provision
requires the Veterans Court to separately consider the
Secretary’s application of the benefit-of-the-doubt rule,
which should improve outcomes for veterans and—
because the Veterans Court is empowered to reverse and
not merely remand—reduce delays in the benefits
application and review process.
Rather than ensure that veterans are given the benefit
of the doubt, as Congress required, the Veterans Court
has deferentially reviewed the agency’s application of the
rule only for clear error. Case backlogs have increased as
remands from the Veterans Court congest the Board’s
docket, and veterans are forced to wait even longer for
resolution. This Brief draws on the experiences of several
veterans’ decades-long battles with the benefits system to
highlight the problems that Congress sought to solve, and
how the Veterans Court has largely ignored Congress’s
command.
4
The Veterans Court’s justification has been that the
Board’s application of the rule is a factual finding. But
that conclusion is incorrect and contradicts the Veterans
Court’s own precedent, not to mention this Court’s
instruction to apply well-established standards “that
courts ordinarily apply in civil cases.” Sanders, 556 U.S.
at 406. Those standards show the way here: the Veterans
Court should review the Board’s application of the
benefit-of-the-doubt rule as a conclusion of law, based on
findings of fact. It is essential that the Veterans Court
enforce the benefit-of-the-doubt rule as Congress
mandated to ensure that veterans timely receive benefits
that they have earned through their service.
ARGUMENT
I.
Congress enacted the “take due account” provision to aid
veterans in the VA disability benefit process.
The pre-VBA case of Edwin Ramos-Rodriguez
illustrates the problem that Congress intended to address
in enacting the VBA. Mr. Ramos-Rodriguez’s case was
one of many subjected to unnecessary remand and
unreasonable delay—a full decade in his case—before
urgently-needed benefits were awarded. The laterenacted Veterans Benefits Act, properly applied, would
help veterans like him obtain appropriate and timely
relief.
Mr. Ramos-Rodriguez “attempted suicide by cutting
his wrists with a razor” while serving in the United States
Air Force in 1986. Ramos-Rodriguez v. Principi,
No. 00-633, 2002 WL 1489434, at *1 (Vet. App. July 10,
2002). A contemporaneous examiner diagnosed him with
an “adjustment disorder with mixed emotional features”
and recognized he would “need considerable supervision
and support.” Id. Mr. Ramos-Rodriguez was hospitalized
after discharge from the military, and was declared
5
mentally disabled by the Social Security Administration
in October 1993. That same year he applied to the VA for
disability benefits. Id. Yet it took 10 years for this
veteran to receive the benefits he was so obviously due.
The VA took four years to rule on the veteran’s
application, only to erroneously deny it. Id. In his appeal
to the Board, Mr. Ramos-Rodriguez pointed to evidence
from the psychiatrist who had treated him on a monthly
basis for more than four years and had concluded that he
suffered from a schizoaffective disorder, was depressed,
and should have been diagnosed with a “serious emotional
disorder” while he was in the Air Force. Id. at *2. Two
years later, the Board denied his appeal,
incomprehensibly rejecting as not probative the
professional opinion of a treating psychiatrist with years
of direct clinical experience with the veteran. Id.
In June 2000, the Secretary acknowledged in the
Veterans Court that the Board had committed errors, and
the Secretary moved to remand. Id. The veteran argued
for reversal instead. Even though everyone agreed the
Board’s decision was unsupportable, the Veterans Court
believed it could reverse under pre-VBA law solely if “the
only permissible view of the evidence of record supports
the appellant’s position.” Id. at *3. It therefore remanded
to the Board to do the obvious: explain how it could be that
the evidence was not at least in equipoise, entitling the
veteran to the benefit of the doubt. Id. at *5. Remanding
(rather than reversing) cost the veteran an additional
three years before he was awarded benefits.
Congress enacted the VBA in 2002 in part to empower
the Veterans Court to do what it did not in Mr. RamosRodriguez’s case: directly review the Secretary’s
application of the benefit-of-the-doubt rule and, when
6
warranted, reverse and award appropriate and timely
relief.
A.
The VA disability benefit process was failing
veterans before Congress enacted the “take due
account” provision.
The Veterans Court has long recognized that the
benefit-of-the-doubt rule is a “unique standard of proof.”
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The
standard is less demanding than even the “fair
preponderance” standard which applies in civil trials. Id.
at 54. That is both “in keeping with the high esteem in
which our Nation holds those who have served in the
Armed Services” and “in recognition of our debt to our
veterans that society has through legislation taken upon
itself the risk of error.” Id.
But before the VBA was enacted, the Veterans Court
reviewed the Board’s application of the benefit-of-thedoubt rule under the “clearly erroneous” standard
applicable to the Board’s findings of fact. 38 U.S.C.
§ 7261(a)(4), (b)(1).
The court’s review thus was
“significantly deferential,” Butts v. Brown, 5 Vet. App.
532, 544 (1993) (Steinberg, J., concurring), largely leaving
unchecked the Board’s application of the rule. Even when
the Veterans Court did find error, the Veterans Court
typically remanded for further adjudication. See id. at 547
(“Indeed, the remand approach is the one the Court has
invariably followed in connection with the . . . application
of the benefit-of-the-doubt doctrine.” (citations omitted)).
The Board and Veterans Court’s own statistics show
the hurdles veterans faced when appealing to the Board.
In 1999 to 2001, the Board’s average response time from
receipt of appeal to issuance of decision ranged from 140
7
to 182 days. Board Annual Report FY 1999, at 40; 2 Board
Annual Report FY 2000, at 42; 3 Board Annual Report FY
2001 (“2001 BVA Report”), at 44. 4,5 When the Board
finally issued its decisions, the outcomes for veterans
were poor. In 1999 to 2001, the Board affirmed the VA’s
denial of benefits 39.8%, 41.4%, and 27% of the time,
respectively. 2001 BVA Report, at 37. The Board issued
remands, prolonging cases and adding to the VA’s
backlog, 36.3%, 29.9%, and 48.8% of the time. Id.
Outright reversals awarding benefits were rare, only
occurring about a quarter of the time. Id. Veterans were
rarely represented by counsel before the Board. Id. at 36
(only 8.4% of the time in 2001).
Veterans did not fare much better when they appealed
a Board decision denying benefits to the Veterans Court.
Between 1999 to 2001 it took the Veterans Court between
340 and 386 days on average to resolve each case.
Veterans Court Annual Reports FYs 1998–2007. 6 After
those lengthy delays, hamstrung by the deferential
nature of its review, the Veterans Court simply remanded
cases back to the Board over 60% of the time in 1999 and
2000. 7 Id. Those remands further prolonged cases and
added to the Board’s own substantial backlog.
2
http://tinyurl.com/529yjx2z.
http://tinyurl.com/msephscv.
4
http://tinyurl.com/4zckmds6.
5
Getting to the Board took even longer. In 2001, for example, it
took 466 days on average for VA field stations to certify an
appeal to the Board after the veteran requested one. 2001 BVA
Report, at 44.
6
http://tinyurl.com/4pu5uwau.
7
The figures for 2001 are not useful due to a legislative change in
November 2000.
3
8
Veterans raised alarms about these issues, specifically
emphasizing the vital role that the Veterans Court should
play in enforcing the benefit-of-the-doubt rule, and the
harmful trickle-down effects that occurred when it
abdicated that responsibility.
Veterans service
organizations, including NVLSP, testified to Congress
that the Veterans Court’s deference “may result in failure
to consider the ‘benefit of the doubt’ rule.” S. Rep. No.
107-234 at 17 (2002). Veterans “voiced frustrations with
the perceived lack of searching appellate review of
[Board] decisions,” and made clear “that the large
measure of deference that [the Veterans Court] affords
[Board] fact-finding is detrimental to claimants.” Id. 8
In short, veterans organizations like NVLSP
explained to Congress that the Veterans Court’s toothless
review of the benefit-of-the-doubt rule regularly resulted
in misapplication of that rule and unnecessary remands
that cost veterans valuable time.
B.
Congress enacted the “take due account” provision to
ensure the benefit-of-the-doubt rule was properly
applied and to streamline resolution.
Congress enacted the Veterans Benefits Act in 2002 to
strengthen the Veterans Court’s review and to reduce
delays in the system. Understanding the harm caused to
8
A judge of the Veterans Court itself raised concerns about
its overly deferential review of the Secretary’s application of the
benefit-of-the-doubt rule. See Gilbert, 1 Vet App. at 61 (Kramer,
K., concurring) (“If this Nation’s veterans are truly to have the
benefit of independent judicial review . . . it must be real judicial
review, not just the appearance thereof. To adopt a framework
which is too deferential to the [Board] will be contrary to the
congressional intent . . . as it will leave the [Board], not the
judiciary, as the final arbiter of ‘benefit of the doubt’
determinations.”).
9
veterans by time-consuming remands, Congress provided
that the Veterans Court may reverse “clearly erroneous”
factual findings, instead of merely remanding back to the
Board after finding those errors. See Veterans Benefits
Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820,
2832 (VBA); 38 U.S.C. § 7261(a)(4). Moreover, the Act
included a separate, stronger provision requiring the
Veterans Court to review the Secretary’s application of
the benefit-of-the-doubt rule of 38 U.S.C. § 5107(b).
Specifically, the VBA mandated that the Veterans Court
“take due account of the Secretary’s application of section
5107(b).” VBA § 401 (emphasis added); 38 U.S.C.
§ 7261(b)(1). Thus, recognizing the critical importance of
the benefit-of-the-doubt rule, Congress required the
Veterans Court to ensure that the Secretary applied it
properly.
The Senate and House Committees on Veterans’
Affairs noted in a joint statement that the VBA required
the Veterans Court to place “special emphasis . . . on the
benefit of the doubt provisions of section 5107(b) as it
makes findings of fact in reviewing [Board] decisions.”
148 Cong. Rec. H8925, H9006 (Nov. 14, 2002). The law
was “intended to provide for more searching appellate
review of [Board] decisions, and thus give full force to the
‘benefit of the doubt’ provision.” Id. As veterans’
advocates have stated, if full effect is not given to the “take
due account” provision, the Veterans Court’s power to
review the Board’s application of the benefit-of-the-doubt
rule will remain “nothing more than meaningless
rhetoric.” 9
9
Statement of Kerry Baker, Disabled Veterans of America,
United States Senate Committee on Veterans’ Affairs (Feb. 13,
2008), http://tinyurl.com/76kj4fcx.
10
Further, Congress explicitly sought to “modify the
requirements of the review the [Veterans] Court must
perform when it is making determinations under section
7261(a),” and “expect[ed] the [Veterans] Court to reverse
clearly erroneous findings when appropriate, rather than
remand the case.” 148 Cong. Rec. at H9006. In hearings
leading up to the enactment of the VBA, representatives
of veterans organizations had urged that such a provision
would “address[] a long-standing concern . . . about the
years it often takes for a claimant to get their case finally
before the Court only to have it remanded back to the
Board, which means further frustration, hardship, and
delay.” Pending Legislation: Hearing Before the S.
Comm. on Veterans’ Affairs, 107th Cong. 60, 66 (2002)
(statement of James Fischl, Director of The American
Legion).
The VBA thus, first, required the Veterans Court to
review the Secretary’s benefit-of-the-doubt analysis, and,
second, empowered the Veterans Court to reverse the
Board when it errs. Under the VBA, Congress expected
the Veterans Court to ensure that veterans like Mr.
Ramos-Rodriguez received the benefit of the doubt, and
to award benefits where warranted rather than force
veterans to slog through years of further litigation.
C.
When the “take due account” provision is applied
properly, veterans promptly receive the disability
benefits they have earned.
In some early cases after the VBA’s enactment, the
“take due account” provision spurred the Veterans Court
to conduct an appropriately non-deferential review of the
Board’s decision, regardless of the labels used to describe
it. For example, in Padgett v. Nicholson, the Veterans
Court reviewed the Secretary’s benefit-of-the-doubt
analysis and reversed the Board’s benefit-of-the-doubt
11
determination and denial of benefits. 19 Vet. App. 133
(2005) (subsequent history related to other grounds
omitted). Padgett demonstrates the manner in which the
Veterans Court should apply the “take due account”
provision to reverse the Board in appropriate
circumstances.
Barney O. Padgett was a World War II combat
veteran who served tours of duty in Europe, Africa, and
the Middle East, and injured his knee “during combat
when he jumped into a ditch seeking cover from shell
fire.” Id. at 135. The VA awarded Mr. Padgett disability
benefits for his knee injury, and eventually his knee
disability necessitated a hip replacement. Id. Mr.
Padgett filed another disability claim for his hip, but the
VA denied that claim, finding that his knee disability did
not cause his hip disorder. Id. Mr. Padgett appealed to
the Board and submitted evidence from two doctors who
supported his claim, but the Board rejected those opinions
and sided with two VA doctors who asserted that the
disorders were unrelated. Id. at 136–37.
Rather than defer to the Board’s evaluation of the
medical opinions, the Veterans Court applied the “take
due account” provision and examined the Board’s
application of the benefit-of-the-doubt rule. Id. at 146–47.
The court explained that “the existence of some
controverting evidence . . . d[id] not preclude” it from
applying the “take due account” provision to the
Secretary’s benefit-of-the-doubt analysis. Id. at 147. The
court found that, given the medical evidence in support of
his claim, the benefit-of-the-doubt rule required the VA to
conclude that sufficient evidence established his hip
disability was aggravated by his knee injury and to decide
in Mr. Padgett’s favor. Id. at 150. Accordingly, instead of
12
remanding this issue back to the Board, the court issued
an outright reversal. Id.
When the Veterans Court “take[s] due account” of the
Secretary’s application of the rule as in Padgett, veterans
with meritorious claims more promptly receive the
benefits that they have earned.
II. The agency and Federal Circuit misinterpret the “take
due account” rule to give the benefit of the doubt to the
Board rather than veterans.
Over time, the Veterans Court and the Federal Circuit
strayed from the proper application of the VBA’s “take
due account” provision by concluding that the Veterans
Court should review the Board’s application of the
benefit-of-the-doubt rule for clear error. This conflates
the court’s review of facts, which is subject to clear error
review, with the application of the benefit-of-the-doubt
rule, which is not. The misguided importation of the
“clearly erroneous” standard into the Veterans Court’s
review of whether the Secretary gave the benefit of the
doubt to the veteran turns on its head that longstanding
rule, guaranteeing that the Board, rather than the
veteran, actually receives the benefit of the doubt on
appeal. This renders the “take due account” provision a
dead letter.
Today’s veterans thus find themselves in no better
position than Mr. Ramos-Rodriguez and his peers were
before the VBA. Rather than having the Veterans Court
apply the benefit of the doubt to their cases, veterans are
often subjected to lengthy remands and additional
unnecessary factual development that serves only to
bolster the agency’s original denial—a phenomenon
13
veterans and advocates caustically describe as “develop to
deny.” 10
One example is veteran Kevin Donnellan, who served
in the Army National Guard for more than thirty years—
during which he had a battle with cancer. Donnellan v.
Shinseki, 24 Vet. App. 167, 169 (2010). After his cancer
diagnosis in 1996, and related treatment through April
1998, Mr. Donnellan went on active duty for training in
May 1998. Id. During training, “he was hospitalized with
fever, chills,” and “severe” abdominal pain before
undergoing emergency surgery that removed some four
feet of his small intestine. Id. Mr. Donnellan left the
service in February 2000. Id. In October 2001, he filed a
disability “claim for service connection for a perforated
small intestine.” Id. He submitted in support a 1998
letter from his examining physician opining that the
perforation was unrelated to his cancer treatment, since
his previous injuries had “healed” before he reentered
active duty. Id. at 170.
Some six years after Mr. Donnellan applied for
benefits, the Board denied his claim. Id. In addition to
the letter from his treating physician, the Board had
before it two additional medical opinions. Id. at 169–70. A
VA physician had concluded in 2005 that Mr. Donnellan’s
injuries “resulted from complications of the preservice
colon cancer surgeries,” id. at 169, while an independent
physician found in 2006 that “he could have had a setback
during his active duty” that aggravated his condition. Id.
10
Cf. Stanphill v. McDonough, No. 22-2283, 2023 WL 6373807, at
*4 (Vet. App. Sept. 29, 2023) (“[T]he Board may not ‘develop to
deny’ the veteran’s claim—meaning that the Board ‘may not
order additional development for the sole purpose of obtaining
evidence unfavorable to a claimant.’” (quoting Turk v. Peake, 21
Vet. App. 565, 568 (2008))).
14
at 170. Despite the evidence on both sides of the ledger—
which should have entitled Mr. Donnellan to the benefit of
the doubt—the Board concluded that there was “clear and
unmistakable evidence that his active duty for training did
not aggravate his preexisting condition.” Id.
The Veterans Court held that the benefit-of-the-doubt
rule provided the applicable “standard of proof” in the
case. Id. at 175. But, unwilling to reverse the Board’s
benefit-of-the-doubt determination, it remanded—
despite a half-decade of record development, including at
least three medical opinions of which two supported Mr.
Donnellan’s claim. Id. at 176. After an appeal to the
Federal Circuit, resolved against him in 2012, he returned
to the Board. There, Mr. Donnellan submitted to two
more medical examinations—15 and 18 years after his
original injury—before the Board finally decided the
preponderance of evidence weighed against him, and
concluded the benefit-of-the-doubt rule did not apply. So
ended Mr. Donnellan’s 15-year battle for benefits—
following thirty years’ service to his country—all without
ever receiving the benefit of the doubt that Congress
promised.
Mr. Donnellan’s story highlights the problems
exacerbated by the Veterans Court’s deferential benefitof-the-doubt analysis. Neither court has articulated
credible reasoning justifying the Veterans Court
deferring to the Board’s benefit-of-the-doubt analysis.
Instead, the deferential approach of applying the court’s
“clearly erroneous” standard of review to its required
benefit-of-the-doubt
analysis
flouts
Congress’s
commands and is incongruous with other well-established
standards of appellate review. Worse, these errors have
contributed to an increase in the delay that drove
Congress to enact the VBA in the first place.
15
A.
The Veterans Court misused legislative history to
rewrite the statute, and the Federal Circuit has
acquiesced.
Long before the enactment of the VBA, the Veterans
Court properly treated the application of the benefit-ofthe-doubt rule as a question of law. Under this construct,
the Veterans Court could find error in the Board’s
application of the benefit-of-the-doubt rule even if the
Board’s factual findings were not clearly erroneous.
Gilbert, 1 Vet. App at 57–58. 11
Soon after Congress enacted the VBA, which
strengthened this review, the Veterans Court erroneously
weakened it by concluding that the Board’s application of
the benefit-of-the-doubt rule was a finding of fact subject
only to clear error review. See Roberson v. Principi,
17 Vet. App. 135, 146 (2003) (per curiam). 12 Without
explaining this departure from its own longstanding view,
not to mention Congress’s then-recent command in the
VBA, the Veterans Court simply asserted that it was “not
authorized” to “apply the benefit of the doubt doctrine”; it
11
In Gilbert, for example, the Veterans Court remanded for the
Board to explain both its “factual findings and its conclusion”—
i.e., its conclusion of law—“that the veteran is not entitled to the
‘benefit of the doubt.’” 1 Vet. App. at 59 (emphases added). A
concurring judge elaborated that the Veterans Court’s review
“as to whether this standard of proof has been correctly applied
by the [Board] does not constitute review of a finding of material
fact,” but rather was “a separate review.” Id. at 60 (Kramer, J.,
concurring) (emphasis in original).
12
Padgett repeated that standard of review, 19 Vet. App. at 146
(citing Roberson, 17 Vet. App. at 146), but nevertheless reversed
because the “only plausible resolution of the key factual issue on
the record” meant “the Board’s decision that the evidence
preponderated against this claim must” be “reversed,” id. at 150.
16
was “empowered only to ensure that the Secretary’s
determination in that regard is not clearly erroneous.” Id.
Appellate courts routinely review—de novo—trial
courts’ application of legal tests concerning evidence. By
asserting that review of the application of the benefit-ofthe-doubt rule entailed a finding of fact, the Veterans
Court gave itself a shortcut, and short shrift to the VBA.
To reach this erroneous conclusion, the Veterans
Court wrote off the statutory text and misused legislative
history. The court seized on the language in § 7252 that
the “extent of the [Veterans Court’s] review shall be
limited to the scope provided in section 7261.” Roberson,
17 Vet. App. at 140. And the court also focused on the fact
that “section 7261 states that the Court shall review the
record of proceedings pursuant to section 7252(b).” Id.
Because the jurisdictional provision and scope of review
provisions referenced each other, the court concluded its
“review [was] thus trapped between these two mutually
referential provisions,” and “there is no clear reading of
this provision.” Id. That (supposed) lack of clarity meant
that the court “must turn to the legislative history” to find
the statute’s meaning. Id.
But those two statutory provisions do not create the
ambiguity conjured by the Veterans Court. 13
Section 7252 confers “exclusive jurisdiction to review
decisions of the Board of Veterans’ Appeals,” § 7252(a),
and sets the scope of review to be “on the record of
proceedings before the Secretary and the Board” to the
extent “provided in section 7261,” § 7252(b).
13
As one Veterans Court judge put it, “I must confess not to find
any such wrapping around or trapping of review.” Wells v.
Principi, 18 Vet. App. 33, 40 n.10 (2004) (per curiam) (Steinberg,
J., dissenting) (cleaned up).
17
Section 7261 directs how that jurisdiction is to be
exercised. Section 7261(a) states the Court “shall”
“decide all relevant questions of law” under an APA-style
review, while reviewing “finding[s] of material fact
adverse to the claimant” under a “clearly erroneous”
standard. Subsection 7261(b) then further provides that
when the court “review[s] the record of proceedings” to
“mak[e] the determinations under subsection (a),” the
court “shall” (1) “take due account of the Secretary’s
application of section 5107(b) [the benefit-of-the-doubt
provision],” and (2) “take due account of the rule of
prejudicial error.” Congress said exactly what the court
“shall” do: “take due account of” the benefit-of-the-doubt
rule while reviewing the “record of proceedings” before
the Board.
In Roberson, however, the Veterans Court cast aside
that unambiguous text and explicitly relied on the
legislative history to rewrite the law. 17 Vet. App. at 140.
Based on cherry-picked portions of the legislative record,
the Veterans Court concluded that “changing this Court’s
standard of review while doing nothing to enhance the
record would compound rather than correct any
problems.” Id. at 140–47. Assuming—again without
explanation—that de novo review of the application of the
benefit-of-the-doubt rule would entail the finding of facts,
the court concluded “deferential, as opposed to de novo,
review” was appropriate. Id. at 147.
Unfortunately, the Federal Circuit has followed suit,
also assuming that “non-deferential review of . . . the
Board’s application of the benefit of the doubt rule”
impermissibly would necessitate “de novo fact-finding.”
Roane v. McDonough, 64 F.4th 1306, 1310–11 (Fed. Cir.
2023).
That assumption went unexamined and is
incorrect. See infra pp. 21–24.
18
In sum, the Veterans Court invented uncertainty in
the text that is not there and used legislative history to
conclude that the text must mean the opposite of what it
says, and the Federal Circuit has gone along with it. The
Veterans Court’s analysis does not withstand scrutiny.
B.
Veterans now endure more delay.
As explained above, the VBA was intended to and
should have had the effect of reducing delay in the
veterans benefit system. But in light of the courts’
erroneous interpretation of the VBA, delays actually have
gotten worse. For instance, the Board’s average time
from receiving a so-called “legacy” appeal 14 to issuing a
decision is now 735 days—nearly two years. Board
Annual Report FY 2023 (“2023 BVA Report”), at 43. 15
That is far from a recent outlier. In 2022 the time was 743
days. Board Annual Report FY 2022, at 41. 16 And in the
2021 report, the tally was 618 days. Board Annual Report
FY 2021, at 33. 17 In other words, compared to the three
years before the VBA’s enactment, delays are now a
whopping 3.5 to 4 times longer.
Making matters worse, those times are only to a
decision—not necessarily a final resolution of the
veteran’s case. For instance, among the legacy appeals
“returned to the Board after remand, 53% of them have
14
A “legacy” appeal is an appeal not subject to the new appeals
system outlined in the Veterans Appeals Improvement and
Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105
(2017). Statistics about legacy appeals are used throughout
herein so that they are comparable with the pre-VBA statistics
discussed above. Supra pp. 6–7.
15
https://tinyurl.com/5n7fyehj.
16
http://tinyurl.com/4k7fbvuc.
17
http://tinyurl.com/3bz3ywwc.
19
been remanded at least twice, 27% have been remanded 3
times or more, 15% have been remanded at least 4 times,
and 8% have been remanded 5 times or more.” 2023 BVA
Report, at 38. That sort of ping-ponging does no favors
for veterans. And it may help explain why over one-third
of veterans who have received a remand decision “report
they do not ‘trust’ the appeals system ‘to fulfill our
country’s commitment to Veterans and their families.’”
Id.
Delays for veterans do not stop at the Board. The
Veterans Court now also takes far longer to resolve
appeals. In 2023, the average time from filing an appeal
to a disposition was either 443 days (single judge) or 749
days (multi-judge panel). Veterans Court FY 2023
Annual Report, at 5. 18 Those numbers in 2022 were 456
days and 672 days, respectively. Veterans Court FY 2022
Annual Report, at 5. 19 And in 2021: 459 days and 767
days. Veterans Court FY 2021 Annual Report, at 5. 20
Compare the recent delays to those that prompted the
enactment in 2002 of the Veterans Benefits Act:
Board of Veterans Appeals Disposition Delay
Pre-VBA (2002)
Recent
Year
Delay (days)
Year
Delay (days)
140
618
1999
2021
172
743
2000
2022
182
735
2001
2023
18
https://tinyurl.com/4xjanm3u.
http://tinyurl.com/2xhpx4b8.
20
http://tinyurl.com/2t49kzc9.
19
20
Veterans Court Disposition Delay (Days)
Pre-VBA
Recent
Year
Court
Year
Single-Judge
Multi-Judge
364
459
767
1999
2021
386
456
672
2000
2022
340
443
749
2001
2023
The lower courts’ reading of the VBA exacerbates
these demoralizing delays. That is because the deference
paid to the Board serves to increase the number of
remands and decrease the number of reversals.
According to the 2023 Report, less than 5% of appeals are
reversed by the Veterans Court. 2023 BVA Report, at 11.
“Court remands” exacerbate docket pressure: the Board
noted that “priority cases”—mostly remands—“are
clearly impacting the pace of” clearing its backlog of
appeals, and that they “have also delayed [judges] from
evaluating even higher numbers of more recently filed”
appeals. Id. at 10–11.
Delays do not stop there. According to a study of a
sample of cases the Veterans Court remanded in 2020, the
median time that it took the VA to reach a final decision
after remand was 352 days. See Examining the VA
Appeals Process; Ensuring High-Quality DecisionMaking for Veterans’ Claims on Appeal, Statement from
Bergmann & Moore, LLC to the Subcomm. on Disability
Assistance and Mem’l Affs. of the H. Comm. on Veterans
Affs. at 4 (Nov. 27, 2023). 21 Although the Board’s median
time to decision was 199 days, oftentimes the Board
remanded the case further, causing months of further
delays. Id. Many of those cases were still not resolved on
21
http://tinyurl.com/yhare63z.
21
remand and returned back to the Board, taking on
average 554 days from Veterans Court remand to final
Board decision. Id. Eight percent of cases remanded by
the Veterans Court still did not have a final determination
after three years. Id. at 3.
If the Veterans Court heeded the VBA’s command and
took “due account” of the benefit-of-the-doubt rule, far
fewer veterans would be forced to endure years-long
delays for the Board and VA to award benefits on remand,
or waiting for the Veterans Court to decide on their
appeals. With more meaningful oversight, the Board
would likely apply the benefit-of-the-doubt rule more
consistently and correctly. This would lead to better
outcomes for veterans at the Board, drastically reduce the
number of veterans appealing to the Veterans Court, and
decrease delays for all veterans who apply for the benefits
they have earned.
III. To “take due account” of a legal rule requires more than
clear-error review, because questions of law are for the
courts.
The VBA requires the Veterans Court to review the
Board’s application of the benefit-of-the-doubt rule as a
conclusion of law by the Board, which is based on the
Board’s underlying findings of fact. The Veterans Court
and the Federal Circuit held to the contrary below,
erroneously concluding that “clear error” factual review
applies to the Veterans Court’s requirement to “take due
account of the Secretary’s application” of the benefit-ofthe-doubt rule.
The Federal Circuit was not writing on a blank slate
in interpreting the VBA’s “take due account” provision.
As Petitioners note, see Pet. Br. 28, 32, this Court has
interpreted a parallel “take due account provision”
22
previously enacted by Congress. In interpreting that
provision, this Court found it instructive to analogize to
well-established standards “that courts ordinarily apply
in civil cases.” Sanders, 556 U.S at 406.
The Veterans Court and Federal Circuit should have
followed this Court’s lead in interpreting the “take due
account” provision at issue in this case. Had it done so, it
would have found several instructive analogs, including in
the Federal Rules of Civil Procedure.
Consider but one example. 22 Rule 50 empowers a
court—including after a jury trial—to find “that a
reasonable jury would not have a legally sufficient
evidentiary basis” to find for a party on an issue, and to
enter judgment for the other party. Rule 50 thus requires
district courts to determine—as a matter of law—whether
the evidence meets the applicable evidentiary standard. 23
Similarly, the requirement to “take due account”
includes a guarantee that the Veterans Court will
determine—as a matter of law—whether the evidence
underlying the Board’s determination of an issue meets
the applicable standard, which in this case comes from the
benefit-of-the-doubt rule. The Federal Circuit erred in
conflating the Veterans Court’s evaluation of the
sufficiency of evidence in light of the benefit-of-the-doubt
standard, on the one hand, with the Veterans Court’s
limited review of the Board’s underlying factual findings,
on the other.
22
For more on this example and others, see Pet. Br. 43–50.
At least one Veterans Court judge thought this is how benefitof-the-doubt review should work, even before the VBA. Gilbert,
1 Vet. App. at 61 (Kramer, J., concurring). For other
commonplace examples, see Pet. Br. 44–47.
23
23
It is clear that the sufficiency of evidence
determination by courts under Rule 50 is “solely a
question of law” requiring an “independent assessment of
the sufficiency” of the evidence. Wright & Miller, 9B Fed.
Prac. & Proc. Civ. § 2524 (3d ed. 2023); see also Pet. Br.
44. Indeed, federal courts of appeal review district courts’
judgment-as-a-matter-of-law decisions de novo. Wright
& Miller, supra, § 2536.
The Veterans Court’s review should work the same
way: analyzing whether the Board, in applying the
benefit-of-the-doubt rule, had legally sufficient evidence
to grant the veteran’s claim. Such a review would not
require the Veterans Court “to make de novo findings of
fact or otherwise resolve matters that are open to debate.”
Roane, 64 F.4th at 1310 (quoting Tadlock v. McDonough,
5 F.4th 1327, 1337 (Fed. Cir. 2021)). Instead, the review
would determine questions of law. See Wright & Miller,
supra, §§ 2524, 2536; cf. also Interstate Com. Comm’n v.
Louisville & Nashville R.R. Co., 227 U.S. 88, 92 (1913)
(“[T]he legal effect of evidence is a question of law.”).
After all, that is the review Congress told the Veterans
Court—and the Federal Circuit—to conduct.
As
Petitioners explain in their Brief, the Veterans Court
engages in an “APA-plus” review of benefits decisions,
expressly “modeled on the APA.” Pet. Br. 24–28. Thus,
Congress instructed that the Veterans Court “shall . . .
decide all relevant questions of law” when reviewing
Board determinations. 38 U.S.C. § 7261(a)(1). Congress
gave the Federal Circuit the same command: to “decide
all relevant questions of law.” Id. § 7292(d)(1); see also
§ 7292(d) (paralleling APA’s 5 U.S.C. § 706).
That
standard of review mirrors the familiar standard of the
APA. See Pet. Br. 24–25.
24
Thus, just as in the APA context, when Congress
specifies that courts “shall decide all relevant questions of
law,” deferential review of such questions is off the table.
As the Court recently confirmed, by using the same “shall
decide all relevant questions of law” command, the APA
“codifies for agency cases the unremarkable, yet
elemental proposition reflected by judicial practice dating
back to Marbury: that courts decide legal questions by
applying their own judgment. . . . And it prescribes no
deferential standard for courts to employ in answering
those legal questions.”
Loper Bright Enters. v.
Raimondo, Nos. 22-451, 22-1219, slip op. 14 (June 28,
2024). If that language in the APA was clear enough for
the Court to overrule Chevron, id. at 21–23, the same
language in the VBA must be enough to secure the
Nation’s veterans non-deferential review of the
Secretary’s application of the benefit-of-the-doubt rule.
In short, to “take due account of” the benefit-of-thedoubt rule requires a de novo review of whether the Board
correctly applied the right rule—not a clear-error review
of the Board’s findings of material fact. This Court should
not let this error plague our Nation’s veterans any longer.
CONCLUSION
Congress enacted the Veterans Benefits Act of 2002 to
“make improvements in procedures relating to judicial
review of veterans’ claims for benefits.” Pub. L. No. 107330.
One of those improvements commanded the
Veterans Court to “take due account” that the benefit of
the doubt was given to veterans. The Veterans Court and
the Federal Circuit have in effect reversed that directive.
By interpreting § 7261(b)(1) to require only “clear error”
review, they have ensured that it is the agency that gets
the benefit of the doubt—not veterans.
That
interpretation of the VBA is incorrect, abdicates the
25
courts’ role to decide questions of law, and it exacerbates
the very problems Congress sought to solve through its
enactment. Such a result heaps insult on top of veterans’
injuries.
The Court should find for Petitioners and reverse the
Federal Circuit.
JULY 9, 2024
Respectfully submitted,
RENÉE A. BURBANK
ZACHARY R.M. OUTZEN
BARTON F. STICHMAN
NATIONAL VETERANS
LEGAL SERVICES PROGRAM
1100 Wilson Blvd.,
Ste. 900
Arlington, VA 22209
Renee.Burbank@nvlsp.org
D. SHAYON GHOSH
Counsel of Record
F. GREG BOWMAN
LIAM J. MONTGOMERY
ANDREW G. BORRASSO
LUKE R. SÁNDOR
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
SGhosh@wc.com
DIANE BOYD RAUBER
NATIONAL ORGANIZATION
OF VETERANS’ ADVOCATES
1775 Eye Street, N.W.
Ste. 1150
Washington, DC 20006
DRauber@vetadvocates.org
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.