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_Bufkin v. McDonough_, No. 23-713, 144 S. Ct. 1455 (2024). Decision below: 75 F.4th 1368 (Fed. Cir. 2023). Oral argument is scheduled for October 15, 2024. ISSUE: _Whether the U.S. Court of

Appeals for Veterans Claims must ensure that the benefit-of-the-doubt rule was properly applied during the claims process to satisfy __38 U.S.C. § 7261(b)(1)__, which directs the court to

“take due account” of the application of that rule by the U.S. Department of Veterans Affairs (VA)._ Veterans may appeal denials of claims for service-related medical benefits by the VA to

the U.S. Court of Appeals for Veterans Claims (Veterans Court). The Veterans Court is required to “take due account” of whether the VA properly applied the “benefit-of-the-doubt” rule to the

record evidence before the VA. This rule 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 [of the VA] _shall give the benefit of the doubt_ to the claimant.” 38 U.S.C. § 5107(b) (emphasis added). This rule puts “a thumb on the scale” in favor of finding for

the veteran. _Henderson v. Shinseki, 562 U.S. 428, 440 (2011)._ In this case, two veterans sought service-related medical benefits from the VA. Joshua Bufkin, a veteran of the U.S. Air

Force, sought treatment for post-traumatic stress disorder (PTSD) that was brought on by experiences in combat. However, despite meeting almost every criterion for a diagnosis of PTSD, the

VA doctor denied Mr. Bufkin’s claim for treatment. Michael Thornton is a veteran of the U.S. Army and National Guard. Upon returning to civilian life, he began to suffer from severe

dissociative PTSD-related episodes. Mr. Thornton pursued treatment, but later felt his VA diagnosis was inadequate. Both Mr. Bufkin and Mr. Thornton argue that they were not given the

requisite “benefit-of-the-doubt” when the VA denied their benefits despite close evidence in the record. Both further assert that the Veterans Court erred in finding that the rule was

inapplicable based on the weight of the evidence and instead found only that there was no “clear error” in the VA’s denial of benefits. The VA, on the other hand, argues that the Veterans

Court’s treatment was appropriate given the specific circumstances and the limited review required by the relevant statute. On appeal, the U.S. Court of Appeals for the Federal Circuit

affirmed, holding that the “clear error” standard of review satisfies the Veterans Court’s obligation to “take due account” of the VA’s application of the benefit-of-the-doubt rule. _Bufkin

v. McDonough_, 75 F.4th 1368, 1371 (Fed. Cir. 2023) (citing _Roane v. McDonough_, 64 F.4th 1306, 1311 (Fed. Cir. 2023)); _see_ 38 U.S.C. § 7261. Now the Supreme Court is poised to clarify

the proper standard for reviewing the VA’s denial of veterans’ medical benefits.  WHAT’S AT STAKE Many older adults are veterans of our armed forces. The U.S. Census Bureau reports that

nearly 50% of all veterans are 65 years or older, and 23.2% of these older veterans have a service-related disability. Rooted in the recognition of the service and sacrifices of veterans,

the VA’s benefits scheme is designed to improve access to health care and other benefits essential to veterans’ physical and mental health. Petition for Writ of Certiorari at 31, _Bufkin_,

144 S. Ct. 1455 (No. 23-713). These benefits can include disability compensation, adaptability support, access to medications, and various forms of mental health treatment plans. All too

often, veterans face great challenges and enormous delays in trying to receive the care and benefits for injuries incurred during their service. This problem is particularly acute for older

adults, where timely access to the essential services provided by the VA is paramount. If upheld, the Federal Circuit’s decision may make timely and meaningful judicial review of VA

decisions as articulated under 38 C.F.R. § 3.102 more difficult and may undercut the “strongly and uniquely pro-claimant” VA benefits scheme upon which so many older veterans rely. _Hodge v.

West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)._ Julie Nepveu, [email protected] VIEW THE FULL SUPREME COURT PREVIEW