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Last month in an appeal from the U.S. Court of Appeals from Veterans Claims (CAVC), the Federal Circuit clarified how the “benefit of the doubt rule” applies under 38 U.S.C. Section 5107(b). That rule states when an “approximate balance” of positive and negative evidence exists, the Secretary must give the benefit of the doubt to the claimant.

Interestingly, most of the opinion is decided by a panel consisting of Judges Dyk, Clevenger, and Prost. But one section of the opinion—Section II(B)—was decided by the court en banc. Judges Reyna, Newman, and O’Malley concurred-in-part and dissented-in-part from the en banc portion of the opinion.

The panel clarifies that, under Section 5107(b) and Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), the “benefit of the doubt rule” applies when the evidence is an “approximate balance” of positive and negative evidence in the veteran’s favor. In other words, the evidence is nearly equal between being in favor and against the veteran’s claim. This situation includes—but is not limited to—when the evidence is in equipoise (equally positive and negative). 

The en banc portion of the opinion departs from language in Ortiz indicating that the “benefit of the doubt rule” does not apply when the Board finds a preponderance of the evidence against the veteran’s claim. The court acknowledged that language resulted in confusion because the Supreme Court discusses “preponderance of the evidence” as being the same as evidence in equipoise.

Judge Reyna disagrees with the court’s decision to not overturn Ortiz entirely. Judge Reyna takes issue with the court replacing Ortiz’s “preponderance of the evidence” standard with a “persuasive evidence” standard, which applies when the factfinder is persuaded that the evidence leans in one party’s favor. According to Judge Reyna, this new standard is not contemplated by Section 5107(b). Judge Reyna also expresses concern that the VA will now be incentivized to not say when a claims decision is a close call. 

This divided opinion and the confusing language from Ortiz illustrate how the Federal Circuit might benefit from having a judge with experience practicing veterans law and before the CAVC.

https://cafc.uscourts.gov/opinions-orders/20-2067.OPINION.12-17-2021_1881557.pdf