Joshua E. Bufkin v. Denis McDonough, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
JOSHUA E. BUFKIN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1089
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-3886, Judge Michael P. Allen.
______________________
Decided: August 3, 2023
______________________
K ENNETH M. CARPENTER , Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
SARAH E. K RAMER , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, P ATRICIA M. MCCARTHY ,
L OREN M ISHA P REHEIM ; CHRISTINA L YNN G REGG, BRIAN D.
G RIFFIN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
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BUFKIN v. MCDONOUGH 2
Before M OORE, Chief Judge, HUGHES and STOLL , Circuit
Judges.
HUGHES , Circuit Judge.
Joshua Bufkin appeals the final decision of the United
States Court of Appeals for Veterans Claims denying ser-
vice connection for an acquired psychiatric disorder. Be-
cause we find no legal error in the Veterans Court’s
interpretation of its standard of review and the benefit of
the doubt rule, we affirm.
I
Mr. Bufkin served in the U.S. Air Force from Septem-
ber 2005 to March 2006. In July 2013, he filed a claim for
service connection for several conditions, including an ac-
quired psychiatric disorder. In support, he submitted VA
medical records reflecting his visits with a VA psychiatrist,
Dr. Robert Goos, between February 21 and June 21, 2013.
In his notes, Dr. Goos stated that “in every aspect he meets
[the] criteria for [post-traumatic stress disorder
(“PTSD”)],” J.A. 20, but he could not identify the specific
stressor or whether the stressor relates to Mr. Bufkin’s mil-
itary service. In March 2014, a VA regional office denied
service connection for PTSD because “[t]he available medi-
cal evidence [was] insufficient to confirm a link between
[his] symptoms and an in-service stressor.” J.A. 23.
In July 2014, Mr. Bufkin submitted a lay statement for
his service connection claim for PTSD. Subsequently, VA
scheduled an examination with a VA psychiatrist, who
opined that his “symptoms do not meet the diagnostic cri-
teria for PTSD.” J.A. 26. In an August 2015 decision, VA
continued the denial of service connection for lacking a
PTSD diagnosis. Mr. Bufkin filed a notice of disagreement,
arguing that Dr. Goos’ favorable 2014 opinion and the VA
examiner’s unfavorable 2015 opinion were in equipoise,
and therefore, VA was legally obligated to grant service
connection.
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BUFKIN v. MCDONOUGH 3
In April 2018, Mr. Bufkin underwent another VA ex-
amination with a different examiner. The second examiner
also concluded that his symptoms “do[] not meet [the diag-
nostic] criteria for PTSD.” J.A. 54. In May 2018, VA issued
a statement of the case, continuing the denial of service
connection for an acquired psychiatric disorder. He ap-
pealed that decision to the Board. While his appeal was
pending, VA received a statement from another VA psychi-
atrist. The third examiner opined that in addition to a se-
vere anxiety disorder, he “suffers from chronic PTSD due
to a number of issues, but . . . [s]ome examiners do not con-
sider this to be PTSD.” J.A. 103.
In February 2020, the Board issued a decision denying
service connection for an acquired psychiatric disorder. The
Board found that the preponderance of evidence supported
a finding that Mr. Bufkin does not have PTSD.
The Veterans Court affirmed. The Veterans Court
found no error in the Board’s application of the benefit of
the doubt rule under 38 U.S.C. § 5107(b). Section 5107(b)
provides that “[w]hen there is an approximate balance of
positive and negative evidence regarding any issue mate-
rial to the determination of a matter, the Secretary shall
give the benefit of the doubt to the claimant.” In other
words, if the competing evidence is in “approximate bal-
ance” or “nearly equal,” then the benefit of the doubt rule
requires the Board to rule in favor of the veteran. Lynch v.
McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).
The Veterans Court explained that the Board considered
conflicting medical statements but found Dr. Goos’ diagno-
sis of PTSD less persuasive than the conflicting June 2015
opinion “because the June 2015 opinion provided a more
comprehensive review of appellant’s military and medical
history.” J.A. 8. The Veterans Court concluded that this
“finding is not clearly erroneous. And thus, the benefit of
the doubt doctrine does not apply here.” Id. (footnote omit-
ted).
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BUFKIN v. MCDONOUGH 4
Mr. Bufkin now appeals.
II
We review de novo the Veterans Court’s interpretation
of law. Bazalo v. West, 150 F.3d 1380, 1382 (Fed. Cir. 1998).
Unless an appeal from the Veterans Court decision pre-
sents a constitutional issue, this Court may not review “a
challenge to a factual determination,” or “a challenge to a
law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2)(A)–(B).
Because Mr. Bufkin argues that the Veterans Court
wrongly interpreted 38 U.S.C. § 7261(b)(1), we have juris-
diction.
A
This case is another in a series challenging various as-
pects of the benefit of the doubt rule. See, e.g., Mattox v.
McDonough, 56 F.4th 1369 (Fed. Cir. 2023); Roane v.
McDonough, 64 F.4th 1306 (Fed. Cir. 2023). In Mattox, we
held that “when conducting a benefit-of-the-doubt-rule
analysis, as in other settings, the Board is required to as-
sign probative value to the evidence” rather than simply
identifying and labeling each piece of evidence as positive
or negative. Mattox, 56 F.4th at 1378. In Roane, we held
that the Veterans Court reviews “the Board’s factual deter-
minations for clear error while taking due account of the
Board’s application of the benefit of the doubt rule.” Roane,
64 F.4th at 1311 (emphasis added).
Here, Mr. Bufkin raises two related legal arguments:
first, whether § 7261(b)(1) requires the Veterans Court to
take due account of the Secretary’s application of the ben-
efit of the doubt rule without consideration of the Board’s
application; and second, whether § 7261(b) requires a de
novo, non-deferential review of how the benefit of the doubt
rule was applied.
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BUFKIN v. MCDONOUGH 5
Mr. Bufkin first argues that the Veterans Court erred
by taking due account of the Board’s application of
§ 5107(b) rather than taking due account of the Secretary’s
application of § 5107(b). Pet. Br. 9. In support, he points to
the plain text of § 7261(b)(1), which states “the Court shall
. . . take due account of the Secretary’s application of sec-
tion 5107(b) (emphasis added).” Section 5107(b), as quoted
above, codifies the benefit of the doubt rule. He contends
that § 7261(b)(1)’s use of the term “Secretary,” not Board,
requires the Veterans Court to review how the benefit of
the doubt rule was applied throughout the claims process,
rather than the Board’s consideration of that issue.
When construing the plain meaning of the statute, we
“must look to the particular statutory language at issue, as
well as the language and design of the statute as a whole.”
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).
Here, reading the statutory text in a broader context, we
hold that the term “Secretary” in § 7261(b)(1) includes the
Secretary acting in his capacity as the Board for the pur-
pose of making a final agency decision.
The term “Secretary” in § 7261(b)(1) simply mirrors the
same term in § 5107(b), which states “the Secretary shall
give the benefit of the doubt to the claimant (emphasis
added).” See Atl. Cleaners & Dryers, Inc v. United States,
286 U.S. 427, 433 (1932) (“[T]here is a natural presumption
that identical words used in different parts of the same act
are intended to have the same meaning.”). Under § 5107(b),
“the Secretary” reviews the record to determine whether
the benefit of the doubt rule should apply. We have long
interpreted “the Secretary” in § 5107(b) to refer to the
Board. See, e.g., Lynch, 21 F.4th at 781 (holding that the
application of the benefit of doubt rule under § 5107(b) de-
pends on whether the Board is persuaded by the evidence);
Roane, 64 F.4th at 1310–11 (explaining that the “take due
account” language in § 7261 requires the Veterans Court to
review the Board’s application of the benefit of doubt rule).
Hence, when § 7261(b)(1) refers to “the Secretary’s
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BUFKIN v. MCDONOUGH 6
application of section 5107(b),” the term Secretary encom-
passes the Board acting on behalf of the “Secretary” in
§ 5107(b). Curiously, in parts of his brief, Mr. Bufkin con-
cedes that the “Secretary” in § 7261(b)(1) refers to the
Board. Pet. Br. 13 (“[W]hen Congress refers in § 7261(b)(1)
to ‘the application of the provision of § 5107(b)’ this Court
must assume that Congress was referring to the Secretary
acting in his capacity as the Board.”).
This understanding is also consistent with how the
term Secretary was defined in the jurisdictional statute,
§ 7104(a). Section 7104(a) reads, “[a]ll questions . . . subject
to decision by the Secretary shall be subject to one review
on appeal to the Secretary (emphasis added).” When we pre-
viously considered the meaning of “one review on appeal to
the Secretary,” we understood it to mean a review by the
Board acting on behalf of the Secretary. Disabled Am. Vet-
erans v. Sec’y of Veterans Affs., 327 F.3d 1339, 1347 (Fed.
Cir. 2003). “By statute, the Board is an agent of the Secre-
tary,” id., and its jurisdictional authority stems from dele-
gation by the Secretary. Hence, “the Secretary” is an
umbrella term that encompasses the Board in certain con-
texts.
Apart from the statutory text of § 7261(b)(1),
Mr. Bufkin also points to a different statutory provision,
§ 7252(b), as evidence that Congress intended the Veterans
Court to review the entire records before the Secretary, not
just the Board. Pet. Br. 13–14. Section 7252(b) reads,
“[r]eview in the [Veterans] Court shall be on the record of
proceedings before the Secretary and the Board (emphasis
added).” He argues that the review by the Veterans Court
necessarily includes the application of the benefit of doubt
rule, and therefore, the Veterans Court erred by only re-
viewing the record of proceedings before the Board. How-
ever, his interpretation reads out the rest of § 7252(b),
which states “[t]he extent of the review [under § 7252(b)]
shall be limited to the scope provided in section 7261 of this
title.”
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BUFKIN v. MCDONOUGH 7
The Veterans Court clearly can review the entire rec-
ord as long as its review is confined to the scope prescribed
in § 7261. See Tadlock v. McDonough, 5 F.4th 1327, 1331–
32 (Fed. Cir. 2021); see also Bowling v. McDonough, 38
F.4th 1051, 1057 (Fed. Cir. 2022); Euzebio v. McDonough,
989 F.3d 1305, 1318 (Fed. Cir. 2021). For instance, in Buck-
linger v. Brown, the Veterans Court reviewed the entire
record, including those parts not explicitly relied on by the
Board, to determine if a plausible basis existed for the
Board’s factual determination. 5 Vet. App. 435, 439 (1993).
Unable to find one, the Veterans Court reversed the
Board’s decision, explaining that a reversal is warranted
under both the benefit of the doubt rule and clearly errone-
ous standard applied to a finding of fact under § 7261(a)(4).
Id. This interpretation is consistent with our understand-
ing of the Veterans Court’s review in a parallel provision,
§ 7261(b)(2), which also directs the Veterans Court to take
due account of the Board’s application but for rule of prej-
udicial error. There, we explained that “the take due ac-
count” provision authorizes the Veterans Courts to “consult
the full agency record, including facts and determinations
that could support an alternative ground for affirmance.”
Tadlock, 5 F.4th at 1334.
So we agree with Mr. Bufkin that the Veterans Court
can review the entire record of proceedings before the Sec-
retary in determining whether the benefit of the doubt rule
was properly applied. Where we part ways is with his ex-
pansive interpretation of § 7261(b)(1) that would require
the Veterans Court to sua sponte review the entire record
to address the benefit of the doubt rule even if there was no
challenge to the underlying facts found by the Board or to
the Board’s application of the benefit of the doubt rule. Sec-
tion 7261(a) explicitly prohibits such an expansive inter-
pretation of the Veterans Court’s jurisdiction. It states, in
relevant parts, that the Veterans Court “shall decide” is-
sues only “when presented.” § 7261(a). We similarly ob-
served that this express jurisdictional limit in § 7261(a)
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BUFKIN v. MCDONOUGH 8
shows Congress’s intent not to “grant the Veterans Court
sua sponte powers that would set it apart from other [Arti-
cle III] courts.” Dixon v. McDonald, 815 F.3d 799, 803 (Fed.
Cir. 2016). Therefore, if no issue that touches upon the ben-
efit 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.
Section 7252(b) cannot serve as an independent basis
to expand the Veterans Court’s scope of review beyond
what is prescribed in § 7261. All that is required under
§ 7261(b)(1) is for the Veterans Court to review the Board’s
application of the benefit of the doubt rule. Of course, in the
context of that review, the Veterans Court can review the
entire record, but it does so in the context of whether the
Board’s application of the benefit of the doubt rule was cor-
rect. The Veterans Court did not err by refusing to examine
independently how the benefit of the doubt rule was ap-
plied during the claims process at the regional office.
B
Mr. Bufkin next argues that § 7261(b) requires the Vet-
erans Court to conduct a “de novo, non-deferential” review
of the Board’s application of the benefit of the doubt rule.
We recently addressed the same issue in Roane. There, the
veteran also argued that the “take due account” language
in § 7261(b) requires the Veterans Court to conduct an “ad-
ditional and independent non[-]deferential review” of the
Board’s application of the benefit of the doubt rule. Roane,
64 F.4th at 1309. We specifically “decline[d] to adopt [such
a] far-reaching interpretation of the phrase ‘take due ac-
count.’” Id. We explained that the scope of the Veterans
Court’s review is limited by § 7261(c) and § 7261(a):
§ 7261(c) expressly prohibits de novo review of material
facts by the Veterans Court; and § 7261(a) allows the Vet-
erans Court to review facts only under the clearly errone-
ous standard. Id. at 1310. Accordingly, we held that the
Veterans Court properly reviewed the Board’s factual
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BUFKIN v. MCDONOUGH 9
determination for clear error while taking due account of
the Board’s application of the benefit of the doubt rule. Id.
at 1311.
Here, the Veterans Court properly considered the
Board’s application of the benefit of the doubt rule. The
Veterans Court explicitly noted the Board’s consideration
of conflicting medical opinions and the Board’s conclusion
that “the June 2015 opinion [finding that he did not have
PTSD] [is] more persuasive than the opinions showing a
diagnosis of PTSD.” J.A. 8. The Veterans Court concluded
that the Board did not misapply the benefit of the doubt
rule, because, as the Board explained, “the June 2015 opin-
ion provided a more comprehensive review of
[Mr. Bufkin]’s military and medical history.” J.A. 8; Lynch,
21 F.4th at 781 (holding that the benefit of the doubt rule
“does not apply when [the Board] is persuaded by the evi-
dence to make a particular finding”). The Veterans Court
also found that the underlying facts supporting the Board’s
conclusion are not clearly erroneous. J.A. 8. Hence, the Vet-
erans Court applied the appropriate standard of review,
clear error, and properly took account of the Board’s appli-
cation of the benefit of the doubt rule.
III
Because we conclude that the Veterans Court did not
err by taking due account of the Board’s application of the
benefit of the doubt rule and applied the appropriate stand-
ard of review under § 7261(b)(1), we affirm.
AFFIRMED
COSTS
No costs.
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