Standard For Reversal By Court Of Appeals - Resource

[free_spirit_etc]

http://thomas.loc.gov/cgi-bin/cpquery/?&am...=TOC_41564&

SECTION 501: STANDARD FOR REVERSAL BY COURT OF APPEALS FOR VETERANS CLAIMS OF ERRONEOUS FINDING OF FACT BY BOARD OF VETERANS' APPEALS

Background

Under 38 U.S.C. Sec. 7261(a)(4), CAVC applies a `clearly erroneous' standard of review to findings of fact made by BVA. The `clearly erroneous' standard has been defined as requiring CAVC to uphold BVA findings of fact if the findings are supported by `a plausible basis in the record . . . even if [CAVC] might not have reached the same factual determinations.' Wensch v. Principi, 15 Vet. App. 362, 366-68 (2001) (affirming BVA's denial of service connection where appellant provided substantial medical evidence in support of the claim).

The `clearly erroneous' standard was originally adopted in 1988 in the Veterans' Judicial Review Act, Public Law 100-687, which established the current system of appellate adjudication for VA benefits cases. The statute was amended slightly by Public Law 101-237 in 1989, although the `clearly erroneous' standard of judicial review remained unchanged.

The `clearly erroneous' standard emerged as part of a compromise agreement after Senate approval of S. 11 and the House of Representatives approval of H.R. 5288. S. 11 directed CAVC to set aside a BVA factual finding only `when it is so utterly lacking in a rational evidentiary basis that a manifest and grievous injustice would result if the finding were not set aside.' H.R. 5288 precluded any CAVC review of BVA factual determinations `unless a constitutional issue is presented.' The House and Senate Committees on Veterans' Affairs noted that the `clearly erroneous' standard adopted at conference is `markedly wider than the standard specified in the Senate bill.' 134 Cong. Rec. 31772 (1988).

More than a decade of experience with CAVC's application of the `clearly erroneous' standard suggests that CAVC is not consistently performing thorough reviews of BVA findings and that the Congressional intent for a broad standard of review has often been narrowed in application. In the recent U.S. Court of Appeals for the Federal Circuit decision of Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000), the Federal Circuit vacated a CAVC decision that BVA had not erred in finding that a veteran's claim was not well-grounded. The Federal Circuit rejected CAVC's de novo review, which it characterized as a `dissecting [of] the factual record in minute detail.' Id. at 1264. The Federal Circuit emphasized that CAVC should perform only limited, deferential review of BVA decisions, and stated that BVA fact-finding `is entitled on review to substantial deference.' Id. at 1263. The Committee is concerned with the high level of deference that Hensley suggests CAVC should employ in its review of BVA findings.

The limited extent of CAVC's review of BVA fact-finding is also evident in CAVC opinions. CAVC has described its level of review as `significantly deferential' and providing only `very narrow bases for the Court to overturn [bVA] . . . determinations.' Butts v. Brown, 5 Vet. App. 532, 544 (1993) (sustaining BVA's rejection of a veteran's claim of service connection); see also Ammons v. Gober, 2000 WL 1114147 (Vet. App. 2000); accord Presley v. West, 2000 WL 1114124 (Vet. App. 2000) (describing the `clearly erroneous' standard as `deferential' and upholding BVA's denial of service connection). Although Ammons and Presley are both unpublished memorandum decisions, they exemplify the limited extent of the review CAVC is performing of BVA fact-finding. This undesirable situation may be the result of confusion concerning the `clearly erroneous' standard, which exists outside the rubric set forth in the Administrative Procedure Act (hereinafter `APA'). 5 U.S.C. Sec. 5107(2)(e).

In their testimony at the Committee hearing on May 2, 2002, veterans service organizations (hereinafter `VSOs') voiced frustration with the perceived lack of searching appellate review of BVA decisions. These groups argued that the large measure of deference that CAVC affords BVA fact-finding is detrimental to claimants and may result in failure to consider the `benefit of the doubt' rule in 38 U.S.C. Sec. 5107(:o. Section 5107(:P provides that VA must find for the claimant when, considering the evidence of record, there is an approximate balance of positive and negative evidence regarding any material issue including the ultimate merits of the claim. This `benefit of the doubt' standard is distinctly different from standards applicable to most adjudicatory proceedings, where claimants are required to produce a preponderance of evidence so that the weight of the evidence favoring their claims.

VA also testified at the Committee hearing on May 2, 2002, and opined that CAVC routinely considers whether BVA has applied the `benefit of the doubt' rule. However, VA suggested that if the Committee believed a less restrictive standard than `clear erroneous' was warranted that the substantial evidence standard of the APA was appropriate.

The Committee solicited comments from CAVC, the Federal Circuit, and the Administrative Office of the United States Courts. All declined to comment.

Committee Bill

Section 501 amends section 7261(a)(4) of title 38 to change the standard of review CAVC applies to BVA findings of fact from `clearly erroneous' to `unsupported by substantial evidence.' Section 502 also cross-references section 5107(B) in order to emphasize that the Secretary's application of the `benefit of the doubt' to an appellant's claim shall be considered by CAVC on appeal. The combination of these changes is intended to provide far more searching appellate review of BVA decisions, and thus give full force to the `benefit of the doubt' provision. The formula `unsupported by substantial evidence of record' is similar to the standard specified in the APA, and should be interpreted as such except that the interpretation must reflect the `benefit of the doubt' rule and thus provide a unique bias in favor of the claimant when the evidence is balanced.

Change in CAVC's standard of review was first proposed in S. 2079. That bill would have changed the `clearly erroneous' standard by allowing CAVC reversal of BVA fact-finding whenever that finding was `not reasonably supported by a preponderance of the evidence.' The Committee modified this standard in order to provide a more familiar and judicially-recognized standard of appellate review. Although the `clearly erroneous' standard has been interpreted by some to require an incrementally more searching review than `substantial evidence,' the `substantial evidence' standard is within the APA's rubric. 1

[Footnote] Under the APA's rubric for agency review, `substantial evidence' review is the least deferential review an appellate court may apply short of `de novo' review. By including specific reference to the `benefit of the doubt' rule in the amendment made by section 501 and moving to a standard that is recognized to provide for searching review, the Committee intends for section 501 to make it clear that CAVC is to provide a thorough review of VA benefits claims on appeal.

[Footnote 1: The `substantial evidence' formula has been judicially interpreted to be slightly more deferential than a traditional `clearly erroneous' standard. Dickinson v. Zurko, 527 U.S. 150, 162-163 (1999). However, the difference, if any, is slight: the Supreme Court stated in Dickinson: `[T]he difference is a subtle one-so fine that (apart from the present case) we have failed to uncover a single instance in which a reviewing court conceded that use of one standard rather than the other would in fact have produced a different outcome.' Id.]

The Committee intends the `substantial evidence' standard to mandate a limited degree of deference to BVA fact-finding, with substantial deference given to findings of fact based on demeanor evidence, but to provide for searching judicial review of VA benefits claims encompassing the `benefit of the doubt' rule. The Committee believes this formula will achieve this goal.

Cost: CBO was unable to provide a cost estimate associated with section 501.

[Angela]

Free Spirit,

You might be interested in Padgett v. Nicholson at the court of appeals web site ( http://webisys.vetapp.gov/isysmenu.html ). Just search on 02-2259 to bring it up. It explains "clearly erroneous" relationship to "benefit of the doubt" decisionmaking very well.

"To the extent that Hicks and other precedent relying on Hersey can be read to support the proposition that a Board finding cannot be clearly erroneous unless the evidence against that finding is uncontroverted, that precedent is overruled unanimously."

[carlie]

I don't think your going to get a CUE on Benefit of the Doubt ---

perhaps a reconsideration.

OMO

carlie

[Berta]

Carlie is right- about the CUE-cannot be filed not on any DTA regs which includes Benefit of Doubt.

Only can be filed on legal error in a past final VA decision.

Not on weighing of medical evidence, but only on legal error.

And the CUE must produce a benefit (more retro) if it could succeed.

Have SMC CUE at the adjudicators now-

Final 1998 VA decision unappealed.

Legals errors committed in this decision and supported by VA case law etc.in existence in 1998.

Manifested altered outcome-

2 years of SMC -M or O forget what one I asked for- as accrued benefits due me as surviving spouse of the deceased veteran.

That is a valid CUE.

The VA can call one on themselves- I have asked them to do this with great success-

Same criteria-almost- but it does not have to be on a final decision.

They can correct procedural errors and defects as soon as they know of them by CUEing themselves.

[Angela]

Berta,

What is "DTA"? Did you mean DVA?

I agree that you can't win a CUE based on "disagreement with how the facts were weighed" and/or "failure to apply the benefit-of-the-doubt". That said, however, when alleging CUE, you must also provide "persuasive argument as to why correction of the error complained of would result in a manifestly different outcome". In my case, the VA failed to consider evidence. If they didn't consider it, they certainly couldn't have weighed it. And if they didn't weigh it they couldn't have applied the benefit of the doubt because, by law, the benefit of the doubt doesn't come into play until all evidence is considered.

I know the benefit-of-the-doubt cannot be applied to the question of "ERROR", because the error either occurred, or it didn't. But if the error complained of is clear, and/or acknowledged by the VA, then aren't you still entitled to the benefit-of-the-doubt on every OTHER factual determination material to the final decision?

USC 38 5107(B) - the benefit of the doubt law says - " 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.

AND

UCS 38 5109A(e) - the CUE law states ... "shall be decided in the same manner as any other claim".

Also, check out the decision portion of BVA decision on a CUE 0121036 that says...

"the Board finds that the evidence when considered in its entirety now serves to establish that the

service-connected PTSD was * LIKELY * manifested by severe social and industrial impairment and demonstrably precluded him from performing substantially gainful employment as required for the assignment of a 100 percent rating under one of the criteria in Diagnostic Code 9411 in effect at that time."

Your thoughts?