Veteranclaims’s Blog

December 17, 2021

Lynch v. McDonough, No. 2020-2067 ( Decided: December 17, 2021); we depart from Ortiz’s “preponderance of the evidence” language and determine that the benefit-of-the-doubt rule simply applies if the competing evidence is in “approximate balance,” which Ortiz correctly interpreted as evidence that is “nearly equal.”; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 U.S.C. § 5107(b), the benefit-of-the-doubt rule;

Filed under: Uncategorized — Tags: — veteranclaims @ 7:52 pm

United States Court of Appeals for the Federal Circuit


JOE A. LYNCH,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2020-2067


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-3106, Senior Judge Mary J.
Schoelen.


Decided: December 17, 2021


MARK RYAN LIPPMAN, The Veterans Law Group,
Poway, CA, argued for claimant-appellant. Also represented
by KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS; ADAM R. LUCK, Gloverluck,
LLP, Dallas, TX.
EVAN WISSER, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, MARTIN F. HOCKEY,
JR.; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of
Case: 20-2067 Document: 65 Page: 1 Filed: 12/17/2021
2 LYNCH v. MCDONOUGH
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
LLP, Washington, DC, for amicus curiae Military-Veterans
Advocacy Inc. Also represented by Melanie Hallums,
Wheeling, WV; JOHN B. WELLS, Law Office of John B.
Wells, Slidell, LA.
STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP
(US), San Diego, CA, for amici curiae Swords to Plowshares,
Connecticut Veterans Legal Center. Also represented
by EDWARD HANOVER, East Palo Alto, CA; JESSE
MEDLONG, San Francisco, CA.


Before DYK, CLEVENGER, and PROST, Circuit Judges.
MOORE, Chief Judge, LOURIE, DYK, PROST, TARANTO,
CHEN, HUGHES, STOLL, and CUNNINGHAM, Circuit Judges,
have joined Part II.B of this opinion.
Opinion concurring in part and dissenting in part from
Part II.B filed by Circuit Judge REYNA, in which
Circuit Judges NEWMAN and O’MALLEY join.
PROST, Circuit Judge.
Joe A. Lynch appeals the final decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the Board of Veterans’ Appeals’ (“Board”)
denial of his claim for a disability rating greater than 30%
for service-connected post-traumatic stress disorder
(“PTSD”). Lynch v. Wilkie, No. 19-3106, 2020 WL 1899169
(Vet. App. Apr. 17, 2020) (“Decision”). In affirming the
Board’s denial, the Veterans Court relied on Ortiz v. Principi,
274 F.3d 1361, 1364 (Fed. Cir. 2001), to determine
that the “benefit of the doubt rule” under 38 U.S.C.
§ 5107(b) did not apply to Mr. Lynch’s claim. Mr. Lynch
argues that Ortiz departs from the “approximate balance”
Case: 20-2067 Document: 65 Page: 2 Filed: 12/17/2021
LYNCH v. MCDONOUGH 3
of the evidence standard, as set forth in 38 U.S.C.
§ 5107(b), to trigger the benefit-of-the-doubt rule, and that
Ortiz was therefore wrongly decided. Today’s opinion, considered
and decided in part by the court en banc, addresses
Ortiz.
BACKGROUND
Mr. Lynch is a veteran who served on active duty in the
United States Marine Corps from July 1972 to July 1976.
In March 2015, Mr. Lynch presented for counseling upon
the recommendation of his veteran peer group and was
evaluated on two separate occasions by Dr. Gwendolyn
Newsome, a private psychologist. Mr. Lynch described
symptoms, including phobias about confined spaces, panic
attacks, memory problems, mood swings, frequent nightmares,
antisocial behaviors, and depression. J.A. 25–26.
He attributed these symptoms to intrusive memories from
his time in service and completed the military version of
the PTSD Checklist. J.A. 25–26. Dr. Newsome reported
that Mr. Lynch’s symptoms and the results of the PTSD
Checklist supported a diagnosis of PTSD. J.A. 25–26.
In March 2016, Mr. Lynch filed a claim of entitlement
to PTSD, accompanied by Dr. Newsome’s report, with the
Department of Veterans Affairs (“VA”). In August 2016,
Mr. Lynch underwent a VA PTSD examination. The VA
examiner confirmed the diagnosis of PTSD but reported
that Mr. Lynch’s PTSD did not result in symptoms that
were severe enough to interfere with occupational or social
functioning or to require continuous medication. J.A. 18,

  1. The examiner reviewed Dr. Newsome’s report but
    noted that the level of impairment observed by Dr. Newsome
    was not observed or reported during the VA examination.
    J.A. 39, 44. The relevant regional office (“RO”) of
    the VA subsequently granted Mr. Lynch’s PTSD claim with
    a 30% disability rating.
    In October 2016, Mr. Lynch filed a Notice of Disagreement
    with the RO disputing the 30% disability rating. In
    Case: 20-2067 Document: 65 Page: 3 Filed: 12/17/2021
    4 LYNCH v. MCDONOUGH
    support, Mr. Lynch submitted two additional psychological
    evaluations conducted by a private psychiatrist,
    Dr. H. Jabbour. See J.A. 49, 58. In July 2017, Mr. Lynch
    underwent a second VA PTSD examination. The examiner
    documented Mr. Lynch’s symptomatology and addressed
    the conflicting medical opinions regarding the severity of
    Mr. Lynch’s symptoms, noting, for example, that some of
    Dr. Jabbour’s conclusions “were more extreme than what
    was supported by available evidence.” J.A. 60. In August
    2017, the RO continued Mr. Lynch’s 30% disability rating.
    Mr. Lynch appealed to the Board, arguing that the RO
    assigned too low a rating for his PTSD because his symptoms
    are worse than those contemplated by the assigned
    30% rating. The Board denied Mr. Lynch’s appeal, finding
    that based on the record—including the evaluations conducted
    by Dr. Newsome, Dr. Jabbour, and the two VA examiners—“[
    Mr. Lynch] does not have social and
    occupational impairment manifested by reduced reliability
    and productivity” that would warrant a disability rating
    greater than 30% for PTSD. See J.A. 20. The Board noted
    that “[Mr. Lynch’s] private examiners have described more
    severe impairment than that identified by the VA examiners;
    however, those findings are not supported by the subjective
    symptoms provided by [Mr. Lynch].” J.A. 21. The
    Board concluded that “the preponderance of the evidence is
    against the claim and entitlement” for a disability rating
    greater than 30% for PTSD. J.A. 21.
    Mr. Lynch then appealed the Board’s decision to the
    Veterans Court, arguing in relevant part that the Board
    misapplied 38 U.S.C. § 5107(b) and wrongly found that he
    was not entitled to the “benefit of the doubt.” See Decision,
    2020 WL 1899169, at *3. The benefit-of-the-doubt rule is
    codified at 38 U.S.C. § 5107, which provides:
    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
    Case: 20-2067 Document: 65 Page: 4 Filed: 12/17/2021
    LYNCH v. MCDONOUGH 5
    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 U.S.C. § 5107(b) (emphasis added). The implementing
    regulation in turn provides:
    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.
    38 C.F.R. § 3.102 (emphasis added).
    The Veterans Court rejected Mr. Lynch’s assertion that
    he was entitled to the benefit of the doubt and affirmed the
    Board’s decision, reasoning that “the doctrine of reasonable
    doubt . . . d[oes] not apply here because the preponderance
    of the evidence is against the claim.” Decision,
    2020 WL 1899169, at *5 (internal quotation marks omitted).
    In support of its reasoning, the Veterans Court relied
    on Ortiz, which stated that “the benefit of the doubt rule is
    inapplicable when the preponderance of the evidence is
    found to be against the claimant.” 274 F.3d at 1364.
    Mr. Lynch now appeals the Veterans Court’s decision.
    DISCUSSION
    I
    We have limited jurisdiction to review decisions by the
    Veterans Court. Under 38 U.S.C. § 7292(d)(2), except to
    the extent that an appeal presents a constitutional issue,
    we may not “review (A) a challenge to a factual determination,
    or (B) a challenge to a law or regulation as applied to
    Case: 20-2067 Document: 65 Page: 5 Filed: 12/17/2021
    6 LYNCH v. MCDONOUGH
    the facts of a particular case.” But we may “review and
    decide any challenge to the validity of any statute or regulation
    or any interpretation thereof” and “interpret constitutional
    and statutory provisions, to the extent presented
    and necessary to a decision.” 38 U.S.C. § 7292(c). And “we
    have authority to decide whether the Veterans Court applied
    the correct legal standard.” Lamour v. Peake,
    544 F.3d 1317, 1321 (Fed. Cir. 2008). We review the Veterans
    Court’s legal determinations de novo. Gazelle v.
    Shulkin, 868 F.3d 1006, 1009 (Fed. Cir. 2017).
    II
    Mr. Lynch raises two issues on appeal. He argues that
    Ortiz was wrongly decided because it sets forth an “equipoise
    of the evidence” standard to trigger the benefit-of-thedoubt
    rule and that this decreased his chance of receiving
    a disability rating greater than 30% for PTSD. See Appellant’s
    Br. 12–13. According to Mr. Lynch, Ortiz read the
    modifier “approximate” out of the term “approximate balance”
    set forth in 38 U.S.C. § 5107(b) by requiring an equal
    or even balance of the evidence to give the benefit of the
    doubt to the claimant. See Appellant’s Br. 16–19. We have
    jurisdiction under 38 U.S.C. § 7292(a), (c).
    Mr. Lynch’s argument is two-pronged. First, he suggests
    that Ortiz expressly requires equipoise of the evidence
    for a claimant to receive the benefit of the doubt.
    Second, he contends that Ortiz’s statement that “the benefit
    of the doubt rule is inapplicable when the preponderance
    of the evidence is found to be against the claimant,”
    274 F.3d at 1364, is contrary to the statutory “approximate
    balance” standard.
    A
    Contrary to Mr. Lynch’s suggestion that Ortiz sets
    forth an equipoise-of-the-evidence standard to trigger the
    benefit-of-the-doubt rule, Ortiz explicitly gives force to the
    modifier “approximate” as used in 38 U.S.C. § 5107(b).
    Case: 20-2067 Document: 65 Page: 6 Filed: 12/17/2021
    LYNCH v. MCDONOUGH 7
    Ortiz found § 5107(b) to be “clear and unambiguous on its
    face” and recited dictionary definitions of the words “approximate”
    and “balance” in concluding that under the
    statute “evidence is in approximate balance when the evidence
    in favor of and opposing the veteran’s claim is found
    to be almost exactly or nearly equal.” 274 F.3d at 1364
    (cleaned up). Thus, 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. Ortiz, 274 F.3d
    at 1364–65; see also Best Power Tech. Sales Corp. v. Austin,
    984 F.2d 1172, 1177 (Fed. Cir. 1993) (“It is a basic principle
    of statutory interpretation . . . that undefined terms in a
    statute are deemed to have their ordinarily understood
    meaning. For that meaning, we look to the dictionary.”
    (first citing United States v. James, 478 U.S. 597, 604
    (1986); and then citing Bd. of Educ. v. Mergens, 496 U.S.
    226, 237 (1990))).
    Mr. Lynch further suggests that, post-Ortiz, this court
    has “interpreted the benefit-of-the-doubt rule as setting
    forth an absolute equality-of-the-evidence or equipoise-ofthe-
    evidence standard.” Reply Br. 3 (citing Skoczen v.
    Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009)). Mr. Lynch
    is mistaken. Skoczen interpreted 38 U.S.C. § 5107(a), not
    38 U.S.C. § 5107(b), and merely referred to the § 5107(b)
    standard in passing dicta. Skoczen, 564 F.3d at 1324. Accordingly,
    Skoczen does nothing to disturb Ortiz.
    1 Although Ortiz also uses the words “too close to
    call” and a “tie goes to the runner” analogy in discussing
    the term “approximate balance,” the case makes clear that
    it goes further than mere ties—“nearly equal” evidence
    triggers the benefit-of-the-doubt rule. 274 F.3d
    at 1364–65.
    Case: 20-2067 Document: 65 Page: 7 Filed: 12/17/2021
    8 LYNCH v. MCDONOUGH
    Amicus curiae Military-Veterans Advocacy Inc.
    (“MVA”) argues that in certain decisions citing Ortiz, the
    Veterans Court has articulated an equipoise-of-the-evidence
    threshold for giving the veteran the benefit of the
    doubt. See MVA Br. 8. In isolated cases, that may be so.
    See, e.g., Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (stating
    that “[if] the evidence is not in equipoise . . . the benefit of
    the doubt rule would not apply”). The Veterans Court’s recitation
    in Chotta of the standard is incorrect.2
    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.
    B3
    As to whether Ortiz correctly concluded that the benefit-
    of-the-doubt rule does not apply when “the preponderance
    of the evidence is found to be against the claimant,”
    274 F.3d at 1364, Mr. Lynch argues that Ortiz was wrongly
    decided because “the totality of the . . . evidence can both
    2 This misstep in Chotta does not appear to have negatively
    affected that veteran’s case. See 22 Vet. App. at 86
    (vacating and remanding on the basis that the Board failed
    to consider certain lay evidence of record).
    3 The earlier opinion in this case, reported at
    999 F.3d 1391 (Fed. Cir. 2021), is withdrawn, and this
    opinion substituted therefor. Part II.B of this opinion has
    been considered and decided by the court en banc. See Order
    in this case issued this date.
    Case: 20-2067 Document: 65 Page: 8 Filed: 12/17/2021
    LYNCH v. MCDONOUGH 9
    preponderate in one direction and be nearly or approximately
    in balance,” Reply Br. 3. Mr. Lynch contends that
    “these two standards cannot co-exist” and that therefore
    Ortiz eliminates any meaning of the word “approximate” in
    § 5107(b). Reply Br. 3. Ortiz rejected such reasoning, stating
    that “if the Board is persuaded that the preponderant
    evidence weighs either for or against the veteran’s claim, it
    necessarily has determined that the evidence is not ‘nearly
    equal’ . . . and the benefit of the doubt rule therefore has no
    application.” 274 F.3d at 1365. On that basis, the panel
    ruled on this issue that it was bound by Ortiz.
    Ortiz correctly established that the benefit-of-thedoubt
    rule does not apply when a factfinder is persuaded
    by the evidence to make a particular finding. See 274 F.3d
    at 1365–66. And Ortiz made clear that, under its formulation,
    a finding by “the preponderance of the evidence” reflects
    that the Board “has been persuaded” to find in one
    direction or the other. 274 F.3d at 1366. But Ortiz’s preponderance-
    of-the-evidence formulation—while correctly
    viewing the issue as one of persuasion—nonetheless could
    confuse because other cases link “preponderance of the evidence”
    to the concept of equipoise. E.g., Medina v. California,
    505 U.S. 437, 449 (1992) (stating that preponderanceof-
    the-evidence burden matters “only in a narrow class of
    cases where the evidence is in equipoise”); see also Goldman
    Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141 S. Ct.
    1951, 1963 (2021). Accordingly, to eliminate the potential
    for confusion going forward, we depart from Ortiz’s “preponderance
    of the evidence” language and determine that
    the benefit-of-the-doubt rule simply applies if the competing
    evidence is in “approximate balance,” which Ortiz correctly
    interpreted as evidence that is “nearly equal.”
    4
    4 The dissent characterizes the majority opinion as reinstituting
    the preponderance of the evidence standard under
    a different linguistic formulation. Dissent
    Case: 20-2067 Document: 65 Page: 9 Filed: 12/17/2021
    10 LYNCH v. MCDONOUGH
    As a corollary, evidence is not in “approximate balance”
    or “nearly equal,” and therefore the benefit-of-the-doubt
    rule does not apply, when the evidence persuasively favors
    one side or the other. To be clear, Ortiz (and the instant
    case) were not wrongly decided.5 In the instant case, for
    example, the Board made extensive findings that show it
    was persuaded that Mr. Lynch was not entitled to a disability
    rating greater than 30% for PTSD. See, e.g.,
    J.A. 20–21. And the Veterans Court made plain that the
    evidence was quite clearly against the veteran, not in approximate
    balance.6
    CONCLUSION
    We have considered Mr. Lynch’s remaining arguments
    but find them unpersuasive. For the foregoing reasons, we
    affirm.
    AFFIRMED
    at 1–2. That is not a correct characterization of the majority
    opinion.
    5 Indeed, we are not aware of any case that improperly
    applied Ortiz in an outcome-determinative manner.
    6 Today’s change in our construction of § 5107(b)
    does not provide grounds for claims of clear and unmistakable
    error (“CUE”) for prior Board decisions. CUE “does
    not include the otherwise correct application of a statute or
    regulation where, subsequent to the Board decision challenged,
    there has been a change in the interpretation of the
    statute or regulation.” 38 C.F.R. § 20.1403(e); see also
    George v. McDonough, 991 F.3d 1227, 1234 (Fed. Cir. 2021)
    (“CUE must be analyzed based on the law as it was understood
    at the time of the original decision and cannot arise
    from a subsequent change in the law or interpretation
    thereof.”).
    Case: 20-2067 Document: 65 Page: 10 Filed: 12/17/2021
    LYNCH v. MCDONOUGH 11
    COSTS
    No costs.
    Case: 20-2067 Document: 65 Page: 11 Filed: 12/17/2021
    United States Court of Appeals
    for the Federal Circuit

JOE A. LYNCH,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2020-2067


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-3106, Senior Judge Mary J.
Schoelen.


REYNA, Circuit Judge, with whom NEWMAN and O’MALLEY,
Circuit Judges, join, concurring-in-part and dissenting-inpart
from Part II.B.
Today the court takes en banc action directed to this
court’s precedent articulated in Ortiz v. Principi, 274 F.3d
1361 (Fed. Cir. 2001). The purpose of the en banc action is
to “clarify” the court’s holding in Ortiz. The result is that
the court departs from its holding in Ortiz and sets a new
analytical standard for applying the benefit-of-the-doubt
rule under 38 U.S.C. § 5107. I agree with the court’s decision
to reject the preponderance of evidence standard set
in Ortiz. I cannot, however, agree with the court’s installment
of a “persuasion of evidence standard,’’ and the
Case: 20-2067 Document: 65 Page: 12 Filed: 12/17/2021
2 LYNCH v. MCDONOUGH
refusal to overturn Ortiz in its entirety. For the reasons
stated below, I concur-in-part and dissent-in-part from the
decision of the court.
The majority rejects the preponderance of the evidence
rule established in Ortiz. Maj. Op. 9. I agree that our holding
in Ortiz required fixing. This is because Ortiz carries
the potential for withholding benefits from veterans to
which they are otherwise entitled. By providing clarification,
the court recognizes the remedial nature of veterans’
benefits law, as intended by Congress—including through
its statutory expression of the veterans’ benefit-of-thedoubt
rule. Today’s opinion, therefore, is a step in the right
direction, and I am pleased to take that step with my colleagues.
I dissent, however, from the court’s refusal to recognize
that Ortiz was wrongly decided. In Ortiz, the court held
that the benefit-of-the-doubt rule does not apply in cases
where the Board of Veterans’ Appeals finds that a preponderance
of the evidence is against the veteran’s claim.
Ortiz, 274 F.3d at 1365–66. The court reached this holding
after determining that the statute required no interpretation
and upon consulting dictionaries to construe the meaning
of “approximate” and “balance.” Id. at 1364–65.
Today’s en banc decision acknowledges that the preponderance
of the evidence formulation carries potential confusion.
As a result, “to eliminate the potential for confusion
going forward,” the majority “depart[s] from Ortiz’s ‘preponderance
of the evidence’ language.” Maj. Op. 9. This
means two things. First, the “preponderance of the evidence”
standard is repealed and replaced with a “persuasive
evidence” standard. Id. at 9–10. Second, the
analytical structure underpinning the preponderant evidence
rule in Ortiz not only remains, but now girds the persuasive
evidence standard. Not only is the persuasive
evidence standard, like the preponderance rule, not contemplated
by the statute, but its analytical framework has
as provenance the now-estranged Ortiz’s preponderant
Case: 20-2067 Document: 65 Page: 13 Filed: 12/17/2021
LYNCH v. MCDONOUGH 3
evidence rule. This result is a far cry from the language
contemplated by Congress. Accordingly, I dissent from the
court’s adoption of the persuasive evidence standard.
As the court maintains Ortiz’s analytical framework,
we must be vigilant against the possibility that “close
cases” may evade review. Where the evidence is close, but
the Department of Veterans Affairs (VA) ultimately determines
that the evidence “persuasively” forecloses a veteran’s
claim, the VA can make its determination without
explaining that the case was in fact a close call. Put differently,
if the VA internally recognizes the evidence is close
but finds in the end that the evidence “persuasively” precludes
the veteran’s claim, the VA does not need to disclose
that the evidence may have been “close.” There is no requirement
to do so, and the majority opinion does nothing
to change this. This shields such determinations from
meaningful appellate review under § 5107(b). This outcome
disincentivizes the agency from fulfilling its duty to
provide an adequate administrative record in certain cases
and thus hinders appellate review. See In re Sang Su Lee,
277 F.3d 1338, 1342 (Fed. Cir. 2002) (“For judicial review
to be meaningfully achieved . . . , the agency tribunal must
present a full and reasoned explanation of its decision. The
agency tribunal must set forth its findings and the grounds
thereof, as supported by the agency record, and explain its
application of the law to the found facts.”). In my view, the
VA should be motivated, if not required, to include a statement
and explanation in cases where it concludes the evidence
is not in approximate balance but thought the case a
close call. I would favor such a requirement to ensure that
the question of whether the evidence is in approximate balance
under § 5107(b) is meaningfully subject to appellate
review in all cases.
In sum, I concur-in-part and dissent-in-part with the
majority decision. I agree with the decision to repeal the
preponderance of evidence rule adopted in Ortiz. But I disagree
with the decision not to overturn Ortiz in its entirety.
Case: 20-2067 Document: 65 Page: 14 Filed: 12/17/2021
4 LYNCH v. MCDONOUGH
I also disagree with the new rule the majority has minted,
the persuasion of evidence rule, for use in applying the benefit-
of-the-doubt provision set out in 38 U.S.C. § 5107.
The words of the statute are no mystery. They are
plain and have common meaning and require no further
definition. The imperative nature of the statute is also
clear. In any issue material to the veteran’s claim, the benefit
of the doubt shall go to the veteran.
(b) Benefit of the Doubt.—
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 U.S.C. § 5107(b).
Case: 20-2067 Document: 65 Page: 15 Filed: 12/17/2021

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