NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

NORMAN F. THORNTON,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-2329

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-882, Judge Joseph L. Falvey, Jr.

______________________ 

Decided: August 9, 2023

______________________ 

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant.

 EVAN WISSER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent-appellee. Also represented by 

BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA 

M. MCCARTHY; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

Case: 21-2329 Document: 50 Page: 1 Filed: 08/09/2023
2 THORNTON v. MCDONOUGH

______________________ 

Before LOURIE, CLEVENGER, and STARK, Circuit Judges.

CLEVENGER, Circuit Judge

Norman F. Thornton appeals from the final decision of 

the United States Court of Appeals for Veterans Claims 

(“Veterans Court”) affirming the decision of the Board of 

Veterans’ Appeals (“Board”), which denied his claim for a 

rating above 50% for his service-connected disability from 

post-traumatic stress disorder (“PTSD”). Thornton v. 

McDonough, No. 20-0882, 2021 WL 2389702 (Vet. App. 

June 11, 2021). For the reasons set forth below, we affirm 

the final decision of the Veterans Court.

I 

Section 5107(b) of Title 38 provides that “[w]hen 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.” If the competing evidence on a material 

issue is in “approximate balance” or “nearly equal,” the 

benefit of the doubt rule requires the Board to decide the 

material issue in favor of the veteran. Lynch v. 

McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).

In this case, Mr. Thornton argued to the Board that he 

was entitled to the benefit of the doubt regarding the issue 

of his entitlement to an increased rating for his PTSD. After assessing the evidence of record concerning the severity, frequency, and duration of Mr. Thornton’s symptoms, 

the Board concluded that “[t]here is no doubt to be resolved; 

a higher rating is not warranted. 38 U.S.C. § 5107(b).” 

Mr. Thornton appealed the Board’s adverse decision to 

the Veterans Court. The scope of the Veterans Court’s review authority is set forth in 38 U.S.C. § 7261. Relevant to 

this case, § 7261(a)(4) requires the Veterans Court to review adverse material fact determinations by the Board for 

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THORNTON v. MCDONOUGH 3

clear error. In testing such fact determinations for clear 

error, § 7261(b) requires the Veterans Court to review the 

entire record of proceedings in the case before the Secretary, including the parts of the record before the Board, 

and, as part of that review, to “take due account of the Secretary’s application of section 5107(b) of this title.” 38 

U.S.C. § 7261(b)(1).

Because the overall evidence on the degree of Mr. 

Thornton’s PTSD was not in approximate balance, the Veterans Court concluded that the benefit of the doubt rule did 

not apply – the same conclusion reached by the Board after 

its assessment of the record. Thus, on review by the Veterans Court, no clear error was shown in the Board’s assessment of the balance of the factual evidence concerning 

the severity of Mr. Thornton’s PTSD.

II

Mr. Thornton’s appeal to this court argues that the Veterans Court misinterpreted § 7261(b)(1)’s requirement 

that the Veterans Court, when undertaking review pursuant to § 7261(a), “take due account of the Secretary’s application of section 5107(b) of this title.” In addition to the 

§ 7261(a) review of Mr. Thornton’s claim of entitlement to 

the benefit of the doubt which the Veterans Court conducted, Mr. Thornton argues that “taking due account” of 

the benefit of the doubt rule requires the Veterans Court to 

conduct an additional separate and independent de novo

review of the entire record, to assure that the veteran has 

not improperly been denied the benefit of the doubt. Further, Mr. Thornton argues that “taking due account” requires that this additional level of review be conducted sua 

sponte by the Veterans Court even if the veteran has not 

challenged a Board’s determination that the benefit of the 

doubt rule does not apply.

The same interpretation questions Mr. Thornton raises 

in this case recently were presented to and decided by this 

court in Bufkin v. McDonough, No. 2022-1089 (Fed. Cir. 

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4 THORNTON v. MCDONOUGH

Aug. 3, 2023). As the decision in Bufkin explains, the statutory command that the Veterans Court “take due account” 

of the benefit of the doubt rule does not require the Veterans Court to conduct any review of the benefit of the doubt 

issue beyond the clear error review required by § 7261, and 

“if no issue that touches upon the benefit of the doubt rule 

is raised on appeal, the Veterans Court is not required to 

sua sponte review the underlying facts and address the 

benefit of the doubt rule.” Bufkin, slip op. at 7-9.

Because Mr. Thornton’s preferred interpretation of 

§ 7261(b)(1) was rejected in Bufkin, we must also reject it 

in this appeal. Other than the statutory interpretation issue, Mr. Thornton does not fault the decision of the Veterans Court, and we thus affirm the Veterans Court’s 

decision.

AFFIRMED

COSTS

No costs.

Case: 21-2329 Document: 50 Page: 4 Filed: 08/09/2023