Last week the Supreme Court issued its opinion in Bufkin v. Collins, a veterans case. In this case, the Supreme Court reviewed the Federal Circuit’s conclusion that the Veterans Court did not err by “tak[ing] due account” of the Department of Veterans Affair’s application of the benefit-of-the-doubt rule and applying a clear error standard of review for factual issues. In a decision authored by Justice Thomas, the Supreme Court affirmed the Federal Circuit’s ruling. The Court held that the Veterans Court reviews the VA’s application of the benefit-of-the-doubt rule by reviewing legal issues de novo and factual issues for clear error, and that the VA’s determination that the evidence is in approximate balance is a predominantly factual determination reviewed only for clear error. Notably, Justice Jackson dissented, joined by Justice Gorsuch. This is our opinion summary.
Majority Opinion
Justice Thomas began by discussing the procedural and factual background of the case:
Petitioner Joshua Bufkin served in the Air Force from late 2005 to early 2006. . . . Seven years later, Bufkin sought disability benefits from the VA. . . . The VA regional office denied Bufkin’s claim on the ground that the medical evidence was insufficient to establish a link between his symptoms and his military service. Bufkin sought reconsideration . . . . The VA regional office reviewed the new information and reaffirmed its denial of Bufkin’s claim. Bufkin filed a notice of disagreement. . . . The VA regional office again reaffirmed its decision to deny benefits.
Bufkin appealed to the Board. . . . The Board concluded that Bufkin did not suffer from PTSD and denied his claim. In a detailed opinion, the Board recounted each physician’s findings and medical conclusions. . . . When taken as a whole, the Board explained, the evidence was not in approximate balance. Accordingly, the Board determined that Bufkin was not entitled to the benefit of the doubt.
Petitioner Norman Thornton served in the Army from 1988 to 1991. After being honorably discharged, Thornton applied for and received benefits for an “ ‘undiagnosed illness.’” . . . . In 2015, Thornton applied for another increase to his PTSD disability rating and underwent a new VA medical examination. . . . [T]he regional office increased Thornton’s PTSD disability rating to 50%. Thornton then sought an additional increase to 70% and underwent another medical evaluation, but the regional office maintained the 50% rating.
Thornton appealed to the Board, which reviewed the evidence de novo. As in Bufkin’s case, the Board thoroughly recounted each medical report and assessed the credibility of each physician’s findings. The Board ultimately declined to increase Thornton’s 50% disability rating.
Both petitioners appealed the Board’s resolution of their PTSD claims to the Veterans Court. They argued that the evidence concerning their diagnoses was in “approximate balance,” so they were entitled to the benefit of the doubt. See §5107(b). In both cases, the Veterans Court upheld the Board’s decisions on the ground that the Board’s approximate-balance determinations were not clearly erroneous.
The petitioners then appealed to the Federal Circuit, challenging the Veterans Court’s legal interpretation of §7261(b)(1). They argued that the statutory command to “take due account” of the VA’s application of the benefit-of-the-doubt rule requires the Veterans Court to review the entire record de novo and decide for itself whether the evidence is in approximate balance.
The Federal Circuit rejected this argument and affirmed the Veterans Court in both cases. . . . The court held that “the statutory command that the Veterans Court ‘take due account’ of the benefit of the doubt rule does not require the Veterans Court to conduct any review of the benefit of the doubt issue beyond the clear error review required by” §7261(a).
Justice Thomas started his analysis by examining the plain meaning of the text of §7261(b)(1), explaining that, “[t]aken together, the statutory command to ‘take due account’ of the VA’s application of the benefit-of-the-doubt rule requires the Veterans Court to give appropriate attention to the VA’s work, at least when the issue is properly presented.” The text, he continued, states that “the Veterans Court must ‘take due account’ of the VA’s application of the benefit-of-the-doubt rule only ‘[i]n making the determinations under subsection (a).'” He noted that “[t]his language highlights that taking due account is not a freestanding task but rather an aspect of judicial review under subsection (a).” He thus concluded that “the standards of review provided in subsection (a) also govern the Veterans Court’s review of benefit-of-the-doubt issues,” particularly that the Veterans Court reviews “the VA’s conclusions of law de novo and its findings of fact for clear error.” He explained that “[w]hich standard applies will depend on whether a veteran raises a legal or factual objection.”
Justice Thomas then addressed whether clear error is the appropriate standard of review for the VA’s “determination that the evidence on a particular material issue in not in approximate balance.” Based on “the way in which the VA conducts the approximate-balance inquiry,” he concluded, “it is a predominantly factual question and thus subject to clear-error review.”
He explained that the approximate-balance determination involves two steps, of which the first is “the VA reviews each item of evidence in the record and assigns weight to it.” Justice Thomas noted that “[b]oth sides agree” that “this aspect of the VA’s analysis is factfinding reviewed only for clear error.”
And, he continued, the second step is that “the VA assesses the weight of the evidence as a whole, deciding whether ‘there is an approximate balance of positive and negative evidence’ on any material issue” and giving “the benefit of the doubt to the veteran only after determining that the positive evidence and negative evidence on a material issue are in approximate balance.”
Justice Thomas noted that the second step “has both legal and factual components,” and is “at most a mixed question, not a purely legal one.” He explained that “[t]he appropriate standard of review for a mixed question depends ‘on whether answering it entails primarily legal or factual work.'” He explained that “[w]hen the tribunal below is ‘immerse[d]’ in facts and compelled to ‘marshal and weigh evidence’ and ‘make credibility judgments,’ the appellate court ‘should usually review a decision with deference.'” And, he concluded, “[r]eviewing a determination whether record evidence is approximately balanced is ‘about as factual sounding’ as any question gets.”
Rejecting arguments made by Justice Jackson that the approximate-balance determination is a predominantly legal mixed question, Justice Thomas explained that the approximate-determination is “a creature of statute” and “does not dwell in ‘[i]n the constitutional realm,'” meaning that it “is not entitled to the presumption of de novo review.” He continued by explaining that “the approximate-balance inquiry does not have a comparable legal component,” and, he said, these claims’ “case-specific, fact-bound issues” are “unlikely to generate guidance for the VA or future courts.”
Justice Thomas concluded that “Section 7261(b)(1) does not establish a new standard of review” but instead “requires the Veterans Court to apply the appropriate standard of review under §7261(a).” “Because the VA’s approximate-balance determination is a predominantly factual question,” he continued, “the Veterans Court reviews it for clear error.”
As a result of its analysis, the Court affirmed the Federal Circuit’s judgment.
Dissent
Justice Jackson dissented.
First, she disagreed with the Court’s conclusion that, when reviewing the VA’s application of the benefit of the doubt rule, the “appellate tribunal must ‘use’ the same standards of review that apply to its assessment of any other VA claims determination.” She argued that the “in making” clause relied upon by the majority “simply establishes that review under subsection (b)(1) occurs alongside review under subsection (a), not that they are the same thing.” She further suggested that “[i]nterpreting subsection (b)(1) to require a separate, concurrent review . . . is consistent with how this Court has interpreted subsection (b)(1)’s parallel provision—subsection (b)(2).” She said that in an earlier case the Court did not hold “that subsection (a)’s standards of review governed subsection (b)(2)’s ‘take due account’ clause” but instead “explained that the Veterans Court is not prevented from ‘directly asking the harmless-error question’ and ‘resting its conclusion on the facts and circumstances of the particular case.'”
Second, Justice Jackson disagreed with the Court’s conclusion that “whether evidence is in ‘approximate balance'” is “reviewed only for clear error.” She argued that both “probable-cause” and “sufficiency-of-evidence” are mixed questions of law and fact “plainly analogous” to approximate-balance decisions, and she explained that “appellate courts regularly review [these questions] de novo.” She further argued that “the majority’s efforts to distinguish sufficiency and probable-cause review from the approximate-balance inquiry fall flat,” because “the approximate-balance inquiry is not meaningfully different.”
Justice Jackson concluded her dissent by emphasizing that, in her view, “[t]he far better reading of this statute—one that fully comports with the text, structure, context, history, and purpose of the provision Congress wrote—is that the Veterans Court must review without deference the VA’s approximate-balance determination.”
Justice Gorsuch joined Justice Jackson’s dissenting opinion.