Lynch v. McDonough, 2020-2067

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtProst, Circuit Judge.
Citation21 F.4th 776
Parties Joe A. LYNCH, Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
Docket Number2020-2067
Decision Date17 December 2021

21 F.4th 776

Joe A. LYNCH, Claimant-Appellant
v.
Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2020-2067

United States Court of Appeals, Federal Circuit.

Filed: December 17, 2021
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 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.

21 F.4th 778

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" 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, 39. 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 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

21 F.4th 779

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 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 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-the-doubt

21 F.4th 780

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....

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25 practice notes
  • Sansbury v. McDonough, 20-8639
    • United States
    • Court of Appeals for Veteran Claims
    • April 11, 2022
    ...and be nearly or approximately in balance," .... Mr. Lynch contends that "these two standards cannot co-exist" . . . 21 F.4th 776, 781 (2021), replacing Lynch I, 999 F.3d 1391. The Federal Circuit held: Ortiz correctly established that benefit-of-the-doubt rule does not apply......
  • Turner v. McDonough, 21-0914
    • United States
    • Court of Appeals for Veteran Claims
    • April 5, 2022
    ...of the evidence was against the claim for service connection for COPD on direct and secondary bases. See R. at 7-9; Lynch v. McDonough, 21 F.4th 776, 2021 U.S. App. LEXIS 37307, at *IO-Il (Dec. 17, 2021). The Board explained why it was persuaded that the evidence was not in approximate bala......
  • Williams v. McDonough, 21-4977
    • United States
    • Court of Appeals for Veteran Claims
    • October 18, 2022
    ...responds that Mr. Williams's argument "is essentially the same argument that the Federal Circuit rejected in Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc)." Sec. Br. at 20. And the Secretary asserts: Despite using "preponderance of the evidence," . . t......
  • Schwab v. McDonough, 20-7178
    • United States
    • Court of Appeals for Veteran Claims
    • March 31, 2022
    ...and be nearly or approximately in balance," .... Mr. Lynch contends that "these two standards cannot co-exist" . . . 21 F.4th 776, 2021 U.S. App. LEXIS 37307, *10 (Dec. 17, 2021). The Federal Circuit held: Ortiz correctly established that benefit-of-the-doubt rule does not ap......
  • Request a trial to view additional results
27 cases
  • Sansbury v. McDonough, 20-8639
    • United States
    • Court of Appeals for Veteran Claims
    • April 11, 2022
    ...in one direction and be nearly or approximately in balance," .... Mr. Lynch contends that "these two standards cannot co-exist" . . . 21 F.4th 776, 781 (2021), replacing Lynch I, 999 F.3d 1391. The Federal Circuit held: Ortiz correctly established that benefit-of-the-doubt rule does not app......
  • Turner v. McDonough, 21-0914
    • United States
    • Court of Appeals for Veteran Claims
    • April 5, 2022
    ...of the evidence was against the claim for service connection for COPD on direct and secondary bases. See R. at 7-9; Lynch v. McDonough, 21 F.4th 776, 2021 U.S. App. LEXIS 37307, at *IO-Il (Dec. 17, 2021). The Board explained why it was persuaded that the evidence was not in approximate bala......
  • Williams v. McDonough, 21-4977
    • United States
    • Court of Appeals for Veteran Claims
    • October 18, 2022
    ...Secretary responds that Mr. Williams's argument "is essentially the same argument that the Federal Circuit rejected in Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc)." Sec. Br. at 20. And the Secretary asserts: Despite using "preponderance of the evidence," . . the Board a......
  • Schwab v. McDonough, 20-7178
    • United States
    • Court of Appeals for Veteran Claims
    • March 31, 2022
    ...in one direction and be nearly or approximately in balance," .... Mr. Lynch contends that "these two standards cannot co-exist" . . . 21 F.4th 776, 2021 U.S. App. LEXIS 37307, *10 (Dec. 17, 2021). The Federal Circuit held: Ortiz correctly established that benefit-of-the-doubt rule does not ......
  • Request a trial to view additional results

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