Lynch v. McDonough

Case: 20-2067 Document: 47 Page: 1 Filed: 06/03/2021
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.
______________________
Decided: June 3, 2021
______________________
MARK RYAN LIPPMAN, The Veterans Law Group,
Poway, CA, argued for claimant-appellant. Also repre-
sented by KENNETH M. CARPENTER, Law Offices of Carpen-
ter Chartered, Topeka, KS; ADAM R. LUCK, Gloverluck,
LLP, Dallas, TX.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
ERIC P. BRUSKIN, JEFFREY B. CLARK, ROBERT EDWARD
KIRSCHMAN, JR; CHRISTOPHER O. ADELOYE, Y. KEN LEE,
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2 LYNCH v. MCDONOUGH
Office of 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 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 Plow-
shares, Connecticut Veterans Legal Center. Also repre-
sented by EDWARD HANOVER, East Palo Alto, CA; JESSE
MEDLONG, San Francisco, CA.
______________________
Before DYK, CLEVENGER, and PROST*, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST.
Opinion concurring in part and dissenting in part filed by
Circuit Judge DYK.
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. Prin-
cipi, 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 requires equipoise of positive and nega-
tive evidence (rather than an “approximate balance” of the
evidence 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. Because we disagree with Mr. Lynch’s
________________________________
* Sharon Prost vacated the position of Chief Judge on
May 21, 2021.
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LYNCH v. MCDONOUGH 3
reading of Ortiz, and because this panel is bound by Ortiz,
we affirm.
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 night-
mares, 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,
39. The examiner reviewed Dr. Newsome’s report but
noted that the level of impairment observed by Dr. New-
some was not observed or reported during the VA exami-
nation. 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 Disagree-
ment with the RO disputing the 30% disability rating. In
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
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4 LYNCH v. MCDONOUGH
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 symp-
toms 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 con-
ducted by Dr. Newsome, Dr. Jabbour, and the two VA ex-
aminers—“[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 examin-
ers; however, those findings are not supported by the sub-
jective 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
administered by the Secretary. When there is an
approximate balance of positive and negative evi-
dence regarding any issue material to the
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LYNCH v. MCDONOUGH 5
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 re-
garding 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 sat-
isfactorily 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 omit-
ted). In support of its reasoning, the Veterans Court relied
on Ortiz, which held 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 determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” But we may “review and
decide any challenge to the validity of any statute or regu-
lation or any interpretation thereof” and “interpret
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6 LYNCH v. MCDONOUGH
constitutional and statutory provisions, to the extent pre-
sented 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 a single issue on appeal. He argues
that Ortiz was wrongly decided because it sets forth an “eq-
uipoise of the evidence” standard to trigger the benefit-of-
the-doubt rule and that this decreased his chance of receiv-
ing a disability rating greater than 30% for PTSD. See Ap-
pellant’s Br. 12–13. According to Mr. Lynch, Ortiz read the
modifier “approximate” out of the term “approximate bal-
ance” 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 sug-
gests that Ortiz expressly requires equipoise of the evi-
dence for a claimant to receive the benefit of the doubt. But
Ortiz says no such thing. Second, he contends that Ortiz’s
holding 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, leaves no space for
a claimant to receive the benefit of the doubt unless the
positive and negative evidence is in perfect balance. But
Ortiz considered and rejected such reasoning, id.at 1365–66, and this panel is bound by Ortiz. We further
address each prong of Mr. Lynch’s argument in turn.
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
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LYNCH v. MCDONOUGH 7
modifier “approximate” as used in 38 U.S.C. § 5107(b).
Ortiz found § 5107(b) to be “clear and unambiguous on its
face” and recited dictionary definitions of the words “ap-
proximate” and “balance” in concluding that under the
statute “evidence is in approximate balance when the evi-
dence 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 ben-
efit-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-of-
the-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)
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.
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8 LYNCH v. MCDONOUGH
standard in passing dicta. Skoczen, 564 F.3d at 1324. Ac-
cordingly, Skoczen does nothing to disturb Ortiz.
Amicus curiae Military-Veterans Advocacy Inc.
(“MVA”) argues that in certain decisions citing Ortiz, the
Veterans Court has articulated an equipoise-of-the-evi-
dence 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 rec-
itation in Chotta of the standard is incorrect. 2
So, let us be clear. Under § 5107(b) and Ortiz, a claim-
ant 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 ev-
idence is not in equipoise but nevertheless is in approxi-
mate 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.
B
As to whether Ortiz correctly held 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, this panel is bound by Ortiz.
Mr. Lynch argues that Ortiz was wrongly decided be-
cause “the totality of the . . . evidence can both preponder-
ate in one direction and be nearly or approximately in
2 This misstep in Chotta does not appear to have neg-
atively 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).
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LYNCH v. MCDONOUGH 9
balance.” Reply Br. 3. He contends that “these two stand-
ards cannot co-exist” and that therefore Ortiz eliminates
any meaning of the word “approximate” in § 5107(b). Reply
Br. 3. But Ortiz considered (and rejected) such reasoning,
explaining that “if the Board is persuaded that the prepon-
derant 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; see also id.at 1365–66 (stating that a finding by “the preponderance of
the evidence” reflects that the Board “has been persuaded”
to find in one direction or the other). This panel is bound
by Ortiz.
CONCLUSION
We have considered Mr. Lynch’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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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.
______________________
DYK, Circuit Judge, concurring in part and dissenting in
part.
The majority holds that this court’s prior decision in
Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), did not
establish an equipoise-of-the-evidence standard for ap-
plicability of the benefit-of-the-doubt rule. Maj. Op. 8. I
agree. The majority also holds that under Ortiz, the bene-
fit-of-the-doubt rule does not apply when the preponder-
ance of the evidence is found to be for or against a claimant.
Maj. Op. 8. Here I disagree. It seems to me that Ortiz’s
preponderance of the evidence standard is inconsistent
with the plain text of 38 U.S.C. § 5107(b).
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2 LYNCH v. MCDONOUGH
I
As the majority notes, Ortiz contains some language
suggesting that a veteran is entitled to the benefit of the
doubt only when the evidence is “too close to call.”
Maj. Op. 7 n.1 (quoting Ortiz, 274 F.3d at 1365). However,
I agree with the majority that Ortiz is best understood as
holding that veterans are entitled to the benefit of the
doubt when the evidence for or against their claims is ap-
proximately equal. See Ortiz, 274 F.3d at 1364. The bene-
fit-of-the-doubt rule, codified at 38 U.S.C. § 5107(b),
provides that a claimant is entitled to the benefit of the
doubt when there is an “approximate balance” of positive
and negative evidence. To the extent there is dicta in Ortiz
suggesting that the benefit-of-the-doubt rule applies only
in the context of an evidentiary tie, those statements are
inconsistent with the plain text of § 5107(b) and should be
disregarded.
II
The majority also holds that the benefit-of-the-doubt
rule does not apply when the preponderance of the evidence
is found to be against a veteran’s claim. Maj. Op. 8. In this
respect the majority agrees with Ortiz’s holding 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’ or ‘too
close to call,’ and the benefit-of-the-doubt rule therefore
has no application.” 274 F.3d at 1365. That standard is
the one applied by the Veterans Court in this case.
If the preponderance of the evidence favors the claim-
ant, the claimant prevails, and there is no need to reach
the benefit-of-the-doubt rule. But the majority holds that
the benefit-of-the-doubt rule does not apply when the VA
has established that the veteran is not entitled to recover
by a preponderance of the evidence. This formulation is
first confusing because the statute generally places the
burden of proof on the veteran. 38 U.S.C. § 5107(a)
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LYNCH v. MCDONOUGH 3
(“Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary.”).
More significantly, the preponderance formulation is
not consistent with the statute and disadvantages the vet-
eran. This court has previously explained that “preponder-
ant evidence” simply “means the greater weight of
evidence.” Hale v. Dep’t of Transp., FAA, 772 F.2d 882, 885
(Fed. Cir. 1985); see also Althen v. Sec’y of Health & Hum.
Servs., 418 F.3d 1274, 1279 (Fed. Cir. 2005) (explaining in
the context of the Vaccine Act that “[t]his court has inter-
preted the ‘preponderance of the evidence’ standard . . . as
one of proof by simple preponderance, of ‘more probable
than not’ causation”).
Our sister circuits have similarly explained that pre-
ponderant evidence may be found when the evidence only
slightly favors one party. See, e.g., Gjinaj v. Ashcroft, 119
F. App’x 764, 773–74 (6th Cir. 2005) (“A preponderance of
the evidence requires only that the government’s evidence
‘make the scales tip slightly’ in its favor.”); Blossom v. CSX
Transp., Inc., 13 F.3d 1477, 1479 (11th Cir. 1994) (deter-
mining that a jury instruction correctly explained that the
preponderance of the evidence standard is “like the scales
of justice” and can be satisfied as long as a party “tip[s] the
scales just one little bit in [their] favor”); Ostrowski v. Atl.
Mut. Ins. Cos., 968 F.2d 171, 187 (2d Cir. 1992) (“Instead,
the court should instruct the jury that it is to conclude that
a fact has been proven by a preponderance of the evidence
if it ‘finds that the scales tip, however slightly, in favor of
the party with the burden of proof’ as to that fact.” (citation
omitted)).
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.
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4 LYNCH v. MCDONOUGH
“Approximate” is not the same as “slight.” By reframing
the statute’s standard in terms of preponderance of the ev-
idence, Ortiz departed from the clear language of the stat-
ute to the disadvantage of the veteran. It is not difficult to
imagine a range of cases in which the evidence is in approx-
imate 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 ap-
peared 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. Oral Argument at 23:00–23:16,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20-
2067_04082021.mp3 (but disagreeing that preponderance
of the evidence is satisfied under that circumstance).
I respectfully dissent from the majority’s conclusion
that the preponderance standard is consistent with the
statute.