Written By Spring 2024 M-VETS Student Advisor Sarah Barker.

On Monday, April 29, the Supreme Court of the United States agreed to hear a case this fall with the potential to significantly broaden U.S. veterans’ opportunities to receive VA benefits.[1]

The case, Bufkin v. McDonough, centers on two veterans—Joshua Bufkin and Norman Thornton—who were denied medical benefits by the Department of Veterans Affairs and Board of Veterans Appeals (“BVA”).[2] Bufkin and Thornton each sought VA benefits for PTSD in connection with their military service, but were denied after the VA decided that examinations by VA psychologists outweighed the veterans’ prior examinations and diagnoses.[3] These rulings were reviewed and affirmed by the U.S. Court of Appeals for Veterans Claims (the “Veterans Court”), which found merely that the BVA didn’t make any clear mistakes about the facts of the petitioners’ cases.[4]

Bufkin and Thornton appealed the Veterans Court decisions, arguing that these denials violated a principle called the “benefit-of-the-doubt” rule.[5] They lost their cases at the Federal Circuit Court of Appeals, but now that the Supreme Court has accepted their petition for review, they have a new shot at changing the way that the VA thinks about veterans’ benefits.[6]

The Benefit-of-the-Doubt Rule

Boiled down to basics, Bufkin v. McDonough is about the application of the benefit-of-the-doubt rule to appeals of BVA decisions. The benefit-of-the-doubt rule is a well-established policy in veterans’ law: when the evidence in favor of and against a veteran’s benefits claim is approximately balanced, the VA department should rule in favor of the veteran’s claim.[7]  In 1988, Congress codified the benefit-of-the-doubt rule into law as 38 U.S.C. § 5107(b):

(b) Benefit of the doubt. The Secretary [of Veteran’s Affairs] shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the secretary shall give the benefit of the doubt to the claimant.[8]

This mandate applies to disability and benefits determinations by the VA office and BVA, and is further established within the Department of Veterans Affairs’ own regulations—when there is a reasonable doubt about some aspect of a VA disability claim, and the evidence is about the same weight on either side, that doubt should be resolved in favor of the claimant.[9]

In 2002, Congress passed the Veterans’ Benefits Act (“VBA”), modifying the Veterans Court’s power to review BVA decisions.[10] The language in one part of the VBA, 38 U.S.C. § 7261, forms the basis of Bufkin’s issue in controversy.[11]

Section 7261(a) requires the Veterans Court (when reviewing BVA decisions) to decide legal questions; compel unlawfully-withheld action by the Secretary of Veterans’ Affairs; set aside BVA decisions that are arbitrary, capricious, unconstitutional, unlawful, or lacking in due procedure; and reverse findings of fact that are “clearly erroneous.”[12]

Section 7261(b) states that when the Veterans Court makes a determination on an appeal from the BVA, “the Court shall review the record of proceedings before the Secretary and the Board of Veterans’ Appeals . . . and shall take due account of the Secretary’s application of [the benefit-of-the-doubt rule].”[13]

Bufkin and Thornton argued that under the VBA’s Section 7261(b), the Veterans Court must conduct a much more generous review of closely-balanced issues than it did before.[14] If Congress’s passage of the VBA is to mean anything at all, they claim, then it must require deeper attention to benefit-of-the-doubt on appeal.[15]

Bufkin’s Federal Circuit holding and arguments before the Supreme Court

In August 2023, the Federal Circuit Court of Appeals ruled on Bufkin and Thornton’s cases and rejected their more generous interpretation of Section 7261.[16] The Federal Circuit held that under Section 7261(b), the Veterans Court is only required to examine BVA findings and applications of the benefit-of-the-doubt rule for clear error—the same scope and standard of review permitted by Section 7261(a).[17] Clear error is a difficult standard to meet in a lawsuit. Under this ruling, the Veterans Court has no obligation to separately review whether or not a veteran actually received the benefit of the doubt on close material issues of a case; only whether or not the BVA made an obvious factual mistake when applying it.[18]

Bufkin and Thornton’s petition to the Supreme Court argues that Section 7261(b) requires the Veterans Court to conduct a separate analysis of whether or not a veteran received the benefit of the doubt on close disputed issues before the VA Department and BVA—regardless of whether the BVA made “clearly erroneous” factual findings under 7261(a), and regardless of whether or not a veteran claimant accused the BVA of factual error or inappropriate application of the benefit-of-the-doubt rule on appeal.[19]

The reading of Section 7261 proposed by Bufkin and Thornton is much broader than the Federal Circuit’s rule. If the Supreme Court affirms the Federal Circuit, the old rule will remain in place—but if the Supreme Court chooses to agree with the petitioners, it could open up a whole new world for veterans across the country to challenge past disability determinations where the VA failed to give enough deference to their needs. Permitting broader review by courts appealing VA decisions may allow veterans with close cases to successfully receive needed benefits, where previously the Veterans Court might not have given their cases a deeper look. The current Supreme Court justices have proven themselves sympathetic to veterans’ needs in another recent decision, Rudisill v. McDonough, where a 7-2 majority voted to broaden access to overlapping GI Bill benefits[20]—so keep an eye on Bufkin during the 2024-25 term.

[1] Leo Shane III, Supreme Court to hear another major veterans benefits case this fall, MilitaryTimes (April 30, 2024), https://www.militarytimes.com/veterans/2024/04/30/supreme-court-to-hear-another-major-veterans-benefits-case-this-fall/

[2] Petition for Writ of Certiorari at 9-14, Bufkin v. McDonough, No. 23-713, 2024 U.S. LEXIS 1957 (2024).

[3] Id.

[4] Id.

[5] See Bufkin v. McDonough, 75 F.4th 1368, 1370 (Fed. Cir. 2023); Thornton v. McDonough, 2023 U.S. App. LEXIS 20657 (Fed. Cir. 2023).

[6] Bufkin, 75 F.4th at 1373; Petition for Writ of Certiorari at 9-14, Bufkin (No. 23-713).

[7] 38 U.S.C. § 5107(b); see Petition for Writ of Certiorari at 6, Bufkin v. McDonough, No. 23-713, 2024 U.S. LEXIS 1957 (2024).

[8] 38 U.S.C. § 5107(b).

[9] 38 C.F.R. § 3.102.

[10] See 38 U.S.C. § 7261.

[11] Id.; Petition for Writ of Certiorari at 1-3, Bufkin (No. 23-713).

[12] 38 U.S.C. § 7261(a).

[13] 38 U.S.C. § 7261(b).

[14] Petition for Writ of Certiorari at 18-29, Bufkin (No. 23-713).

[15] Id.

[16] Bufkin, 75 F.4th at 1373.

[17] Id. at 1372-73.

[18] Id.

[19] Petition for Writ of Certiorari at 18-29, Bufkin (No. 23-713).

[20] See Rudisill v. McDonough, 144 S. Ct. 945 (2024).