# 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

______________________

M ARK R YAN L IPPMAN , The Veterans Law Group, Poway, CA, argued for claimant

- appellant. Also represented by K ENNETH M. C ARPENTER , Law Offices of Carpenter Chartered, Topeka, KS ; A DAM R. L UCK , Gloverluck, LLP, Dallas, TX.

E VAN W ISSER , Commercial Litigation Branch, Ci vil Division, United States Department of Justice , Washington, DC, argued for respondent -appellee. Also represented by B RIAN M. B OYNTON , E RIC P. B RUSKIN , M ARTIN F. H OCKEY , J R

. ; C HRISTOPHER O. A DELOYE , Y. K EN L EE , Office of Case: 20-2067 Document: 65 Page: 1 Filed: 12/17/2021LYNCH v. MCDONOUGH 2

General Counsel, United States Department of Veterans Affairs , Washington, DC

.

M ELANIE L. B OSTWICK , Orrick, Herrington & Sutcliffe LLP, Washington, DC, for amicus curiae Military -Veterans Advocacy Inc. Also represented by Melanie Hallums, Wheeling, WV; J OHN B. W ELLS , Law Office of John B. W ells, Slidell, LA.

S TANLEY J OSEPH P ANIKOWSKI , III , DLA Piper LLP(US), San Diego, CA, for amici curiae Swords to Plowshares, Connecticut Veterans Legal Center. Also represented by E DWARD H ANOVER , East Palo Alto, CA; J ESSE M EDLONG , S an Francisco , CA.

______________________
Before D YK , C LEVENGER , and P ROST , Circuit Judges

. M OORE , Chief Judge

, L OURIE , D YK , P ROST , T ARANTO , C HEN , H UGHES , S TOLL , and C UNNINGHAM , 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 R EYNA , in which Circuit Judges N EWMAN and O’M ALLEY join.

P ROST , C ircuit 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 (“ PT SD”)

. 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: 12/17/2021LYNCH 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

. B ACKGROUND 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 symptom s , including phobias about confined spaces, panicattacks, 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 Ma rch 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 butnoted that the level of impairment observed by Dr. Newsome was not observed or reported during the VA exam ination

. J.A. 39 , 44

. T he 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: 12/17/2021LYNCH v. MCDONOUGH 4

support, Mr. Lynch submitted two additional psychological evaluations conducted by a private psy chiatrist

, 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 symptom atology 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, ar guing 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 PT SD. See J.A. 20. The Board noted that “[Mr. Lynch’s] private examiners have described moresevere 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: 12/17/2021LYNCH v. MCDONOUGH 5

administered by the Secretary. When there is an approximate balance of positive and negative evidence re garding 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 procurableand 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 ofpositive 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 Vet erans Court ’s decision.

D ISCUSSION

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: 12/17/2021LYNCH v. MCDONOUGH 6

the facts of a particular case.” But w e may “review and decide an y 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 wh ether 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 r aises two issue s on appeal . He argues that Ortiz was wrongly decided because it sets forth an “equipoise of the evidence ” standard to trigger the benefit -of- the

doubt rule and that this decreased his chance of receiving a disability rating greater than 30% for PTSD. See Appellant’s Br. 12

– 13. A ccording 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 “app roximate” as used in 38 U.S.C. § 5107(b). Case: 20-2067 Document: 65 Page: 6 Filed: 12/17/2021LYNCH 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 thestatute “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 ; s ee 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 meanin g, 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: 12/17/2021LYNCH v. MCDONOUGH 8

A mic us curi ae 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. I n isolated cases , that may b e 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, l et 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

. B 3

As to whether Or tiz 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: 12/17/2021LYNCH 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 eliminate s 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

necessa rily 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- the

doubt 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 preponderanc e 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 correct ly viewing the issue as one of persuasion

— nonetheless couldconfuse 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 preponderance

of- the

- evidence burden matters “only in a narrow class of

cas es where the evidence is in equipoise”); see also Goldman Sachs Grp., Inc. v. Ark

. Tchr. Ret. Sys ., 141 S. Ct. 1951, 1963 (2021). Accordingly, t o eliminate the potential for confusion going forward , we depart from Ortiz ’s “preponderance of the evidence” l anguage 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: 12/17/2021LYNCH v. MCDONOUGH 10

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 I n 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 theevidence was quite clearly against the veteran, not in approximate balance

. 6

C ONCLUSION We have considered Mr. Lynch’s remaining arguments but find them unpersuasive

. For the foregoing reasons, w e 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 orregulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the
statute or re gulation.” 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: 12/17/2021LYNCH v. MCDONOUGH 11

C OSTS

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.

______________________

R EYNA , Circuit Judge

, with whom N EWMAN and O’M ALLEY , Circuit Judges , join, concurring

- in

- part and dissenting

- in

part from Part II.B

. T oday 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 apply ing the benefit -of- the

- doubt rule under 38 U.S.C. § 5107. I agree with the court ’s decision to reject the preponderance of evi dence 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: 12/17/2021LYNCH v. MCDONOUGH 2

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

. Ma j . Op. 9. I agree that our holding in Ortiz require d fixing. This is because Ortiz carries the potential for withholding benefits from veterans towhich 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- the

doubt ru le. Today’s opinion, therefore, is a step in the rightdirection, 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 caseswhere 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 interpretat ion and u pon 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. T his

means two things . First, the “preponderance of the evidence” standard is repealed and replaced with a “persuasi ve evidence ” standard. Id

. at 9

– 10. Second, the analytical structure underpinning the preponderan t evidence rule in Ortiz not only remains, but n ow girds the persuasive evidence standard

. Not only is t he persuasive evidence standard, like the preponderance rule, not co ntemplated by the statute

, but its analytical framework has

as p rovenanc e the now

- estranged Ortiz ’s preponderant Case: 20-2067 Document: 65 Page: 13 Filed: 12/17/2021LYNCH v. MCDONOUGH 3

evidence rule

. This result is a far cry from the language contemplated by Congress

. Accordingly, I disse nt from the

c ourt’s adoption of the persuasive evidence standard.

As the court maintain s 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 i n 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 disclosethat 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 adequat e 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 explanat ion 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.”). I n 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 thatthe 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: 12/17/2021LYNCH v. MCDONOUGH 4

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 defin ition. The imperative nature of the statute is also clear

. I n 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 anapproximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the bene fit of the doubt to the claimant.
38 U.S.C. § 5107(b). Case: 20-2067 Document: 65 Page: 15 Filed: 12/17/2021