Lynch (Evidence in Equipose Examined by the Federal Circuit)

Lynch v. McDonough, Opinion Number 2020-2067, was decided June 3, 2021 by the Court of Appeals for the Federal Circuit and involves the benefit of the doubt rule and its application.

The benefit of the doubt is found in 38 USC 5107 and states:

The Secretary 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.

38 CFR Section 3.102 further explains:

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.

The Veterans Court had found “the doctrine of reasonable doubt . . . d[oes] not apply here because the preponderance of the evidence is against the claim.”  The Veterans Court relied on Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001), which “held that “the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant.”  Id. at *5.

The veteran argued Ortiz was wrongly decided because it requires an equipoise of the evidence standard to trigger the benefit of the doubt and that the Court had read out the modifier “approximate” in the “approximate balance” standard.  Id. at *6.  The Court stated the veteran misread Ortiz and that

“Ortiz necessarily requires that the benefit-of-the-doubt rule may be triggered in situations other than equipoise of the evidence—specifically, situations where the evidence is “nearly equal,”1 i.e., an “approximate balance” of the positive and negative evidence as set forth in § 5107(b) and 38 C.F.R. § 3.102.” 

Id. at *7.  Instead, the Court explicitly stated:

So, let us be clear. Under § 5107(b) and Ortiz, a claimant is to receive the benefit of the doubt when there is an “approximate balance” of positive and negative evidence, which Ortiz interpreted as “nearly equal” evidence. This interpretation necessarily includes scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt.

Id. at *8.

Judge Dyk wrote a concurrence and dissent stating that Ortiz’s preponderance of the evidence standard is inconsistent with 38 U.S.C. 5107.  He explained:

Because preponderant evidence may be found when the evidence tips only slightly against a veteran’s claim, that standard is inconsistent with the statute’s standard that the veteran wins when there is an “approximate balance” of evidence for and against a veteran’s claim. “Approximate” is not the same as “slight.” By reframing the statute’s standard in terms of preponderance of the evidence, Ortiz departed from the clear language of the statute to the disadvantage of the veteran. It is not difficult to imagine a range of cases in which the evidence is in approximate balance between the veteran and the government (and the veteran should recover), but still slightly favors the government (and under the majority’s test, the veteran would not recover).

 

Ortiz’s holding effectively and impermissibly restricts the benefit-of-the-doubt rule to cases in which there is close to an evidentiary tie, a proposition that the majority agrees would be contrary to the “approximate balance” language of the statute. See Maj. Op. 8. Indeed, the government appeared to agree at oral argument that when the evidence against a veteran’s claim is equal to “equipoise plus a mere peppercorn,” denying the benefit-of-the-doubt rule would be contrary to statute.

Id. at *12-13.

This is an interesting case in that it attempts explain the term approximate balance, but I think Judge Dyk is correct.  The attempt to explain only further muddies the definition.  However, I am not sure how much impact it will have as a good attorney will try to develop your case with lay and expert evidence that surpasses an approximate balance.

Decision by Judge Prost and joined in by Judge Clevenger.  Dissent by Judge Dyk.

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