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Supreme Court Hears Dispute Over How Veterans’ "Benefit of the Doubt" Should Be Reviewed
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Summary
At oral argument in Bufkin v. McDonough, petitioners urged the Court to treat the VA's 'approximate balance' benefit-of-the-doubt determination as a legal question subject to nondeferential review; the government defended a primarily factual, clear-error standard and urged deference to the Veterans Court.
The Supreme Court heard argument in Bufkin v. McDonough over whether appellate review of the Department of Veterans Affairs' application of the "benefit of the doubt" rule requires meaningful, nondeferential scrutiny or only deferential clear-error review.
Petitioners' counsel, Miss Bostwick, told the justices that Congress’ 2002 amendment requires the Veterans Court to "take due account" of the secretary’s application of 38 U.S.C. §5107(b) and that the change was meant to ensure "meaningful and independent judicial scrutiny" rather than a rubber-stamp approach. "It requires VA to consider all medical and lay evidence and information relevant to the issue, and then it requires if there is an approximate balance of positive and negative evidence on any issue that the veteran receives the benefit of the doubt," Bostwick told the Court.
Several justices pressed both sides on how to distinguish subsidiary factual findings from the ultimate legal question of whether the evidence is in "approximate balance." Some asked whether the petitioners were effectively seeking to transform routine factual review into de novo review in many cases; others noted that the "approximate balance" standard is unusual and asked how the Court should cabin review.
Government counsel Mister Joshi argued that the Veterans Court "takes due account of the secretary's application" but that the determination whether record evidence is in approximate balance is predominantly factual and appropriately reviewed for clear error. "The veterans court does not apply §5107(b) itself. It takes due account of the secretary's application of it," Joshi said, urging that reading to preserve coherent agency-review doctrines and avoid forcing appellate courts to reweigh evidence in every case.
The argument ranged over statutory text, legislative history, and practical consequences. Petitioners pointed to instances where identical records produced different outcomes for veterans and argued that the amendment was intended to police that inconsistency. The government cautioned that requiring appellate courts to resolve many fact-intensive balances would be inefficient and unworkable.
Several justices posed hypotheticals—two conflicting expert reports, or a board that credits one expert’s diagnosis but fails to explain why it rejected another—and asked how each side’s approach would resolve those examples. The justices also questioned whether Congress intended the new provision to be a clarifying "exclamation point" confirming existing obligations or to effect a substantive change in judicial review.
In rebuttal, Bostwick reiterated that subsection b(1) is more than a redundancy and that, in her view, the Federal Circuit’s approach has left the statute without teeth. She asked the Court to reverse the court below. After rebuttal, the case was submitted.
The Court’s eventual ruling will determine whether appellate review under §5107(b) requires a predominantly legal (nondeferential) inquiry into whether the record as a whole places the evidence in "approximate balance," or whether that balance is a factual determination subject to clear-error deference to the agency and Veterans Court. The case is submitted.