Mattox v. McDonoughMattox v. McDonough
Appeal from the United States Court of Appeals for Veterans Claims in No. 19-5212, Judge Coral Wong Pietsch, Judge Grant Jaquith, Judge Michael P. Allen.
Decided: January 9, 2023
KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.
MEEN GEU OH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYΝΤΟΝ, PATRICIA M. MCCARTHY, LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before STOLL, SCHALL, and STARK, Circuit Judges.
Larry W. Mattox appeals the April 26, 2021 decision of the United States Court of Appeals for Veterans Claims (“Veterans Court“). Mattox v. McDonough, 34 Vet. App. 61 (2021). In that decision, the Veterans Court affirmed the April 5, 2019 decision of the Board of Veterans’ Appeals (“Board“) that denied Mr. Mattox entitlement to service connection for an acquired psychiatric disorder, specifically post-traumatic stress disorder (“PTSD“). J.A. 72.
In its decision, the Veterans Court addressed two issues that are relevant for this appeal. First, the court held that Mr.
For the reasons set forth below, we hold that Mr. Mattox‘s appeal to the Board was not covered by the AMA. We also hold that the Board did not err in interpreting the benefit-of-the-doubt rule and in not applying it in Mr. Mattox‘s case. We therefore affirm the decision of the Veterans Court.
BACKGROUND
I
Mr. Mattox served in the U.S. Navy from October of 1967 to October of 1971. Mattox, 34 Vet. App. at 64. His period of service included time spent on a vessel in the waters of Vietnam. Id.
On July 31, 2015, Mr. Mattox filed a claim for disability benefits with the Department of Veterans Affairs (“VA“) St. Louis Regional Office (“RO“). In it, he sought service connection for PTSD. J.A. 27-30. In support of his claim, he submitted the diagnosis of a private doctor. The doctor‘s diagnosis was presented in a VA Disability Benefits Questionnaire (“DBQ“). Id. at 114–19. The doctor concluded that Mr. Mattox suffered from PTSD and that in-service activities caused his disability. Id. at 116–17.
On October 23, 2015, Mr. Mattox was examined by a VA psychologist. The examiner concluded that Mr. Mattox did not present “a diagnosis of PTSD according to the DSM-5 diagnostic criteria.”1 J.A. 41. Rather, based on the information presented to him by Mr. Mattox, the examiner found that Mr. Mattox suffered from moderate alcohol and cannabis use disorder, which explained his feelings of depression, anxiety, and irritability. Id.; see also id. at 31. The examiner based his findings, in part, on the fact that Mr. Mattox spent a “great deal of time” on “getting and using cannabis.” Id. at 32. In addition, Mr. Mattox reported to the examiner that he used cannabis “about daily,” that
he experienced feelings of anxiety, and that he used alcohol and cannabis to decrease those feelings. Id. at 37.
On December 28, 2015, following receipt of the assessments of Mr. Mattox‘s private doctor and the VA examiner, as well as various record documents, the RO concluded that Mr. Mattox did not suffer from PTSD. It therefore denied his claim. J.A. 45–48. Relevant here, the RO credited the VA examiner‘s diagnosis of Mr. Mattox‘s condition over that of Mr. Mattox‘s private doctor. Id. at 46. On December 21, 2016, following the filing of his notice of disagreement, id. at 49–50, and the RO‘s subsequent issuance of its statement of the
In its April 5, 2019 decision, the Board affirmed the RO‘s denial of Mr. Mattox‘s claim. J.A. 72. Like the RO, the Board found that “the weight of the evidence” did not support Mr. Mattox‘s claim that he suffered from PTSD. Id. at 77. In the Board‘s view, the observations and findings of the VA examiner were “highly probative” on the question of Mr. Mattox‘s condition, id. at 78, and the Board noted what it viewed as deficiencies in the diagnosis of Mr. Mattox‘s private doctor, id. at 78–79. In sum, the Board observed that “the October 2015 examiner provided a more thorough review of the evidence and more vigorous rationale for the conclusion reached.” Id. at 79. The Board concluded its opinion with the following statement:
[T]he Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes that the Veteran has been diagnosed with PTSD during the pendency of his appeal. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection.
Id. at 81-82 (citing
II
Before the Veterans Court, Mr. Mattox raised two arguments that are relevant for us.2 His first argument related to
On August 23, 2017, approximately two years after the RO decided Mr. Mattox‘s claim, Congress, as part of the AMA, amended
decision did not include the items required by the amended version of
Mr. Mattox argued to the Veterans Court that, when it issued its April 5, 2019 decision, the Board was bound by the amended version of
Mr. Mattox‘s second argument before the Veterans Court was that the Board had violated the benefit-of-the-doubt rule under
The Veterans Court rejected both of Mr. Mattox‘s arguments. Addressing first his contention relating to defective notice, the court began by noting that, although Congress created a new adjudicatory system in the AMA, it did not eliminate the then-existing system—referred to as the “legacy” system. Id. at 68; see
to the claimant“))). Second, he argued that the Board would have been bound by any findings of fact in his favor if he had filed a supplemental claim under the AMA. Id. (citing
Legacy claims are defined by both statute and regulation. The AMA provides that a “legacy claim” is a claim:
(A) that was submitted to the Secretary of Veterans Affairs for a benefit under a law administered by the Secretary; and
(B) for which notice of a decision under section 5104 of title 38, United States Code, was provided by the Secretary before [February 19, 2019].
The Veterans Court pointed out that what it characterized as “the initial decision that led to appellant‘s administrative appeal” was the December 28, 2015 RO decision that denied service connection for PTSD. Mattox, 34 Vet. App. at 69. Because the RO‘s decision was prior to the AMA‘s February 19, 2019 effective date, the court held that the Board was not required to comply with the post-AMA notice requirements of
The Veterans Court also rejected Mr. Mattox‘s argument with respect to the benefit-of-the-doubt rule. The court noted Mr. Mattox‘s contention that, because the evidence of record consisted of one medical opinion that found a diagnosis of service-connected PTSD and one that found no such diagnosis, the evidence was in equipoise and he was entitled to the benefit of the doubt. Id. at 74-75. The problem with this contention, the court stated, was that it “overlook[ed] that the Board assigned less probative weight to the PTSD diagnosis contained in the July 2015 DBQ” of Mr. Mattox‘s private doctor. Id. at 74. Referring to the benefit-of-the-doubt rule, the court stated: “The doctrine considers the quality of the evidence, not merely the quantity. Because the Board found that the preponderance of the evidence weighed against appellant‘s claim, it was not required to apply the benefit of the doubt doctrine.” Id.
Having rejected both of Mr. Mattox‘s arguments, the Veterans Court affirmed the decision of the Board. This appeal followed.
DISCUSSION
I
Our jurisdiction to review decisions of the Veterans Court is governed by
As seen below, both issues addressed in this appeal present questions of statutory interpretation. We therefore agree with the parties that we possess jurisdiction.
II
Mr. Mattox raises the same two arguments that he presented to the Veterans Court. We consider them in turn.
First, Mr. Mattox maintains that “the Board erred when it failed to provide him with the notice required by [amended]
The government urges us to affirm the Veterans Court decision, arguing that amended
We see no error in the Veterans Court‘s determination as to the applicability of the AMA to Mr. Mattox‘s case. As the Veterans Court recognized and as the government emphasizes, Congress provided an express provision regarding the “Applicability” of the AMA in a note to
Congress did not, however, eliminate the previous system, but instead intended for that “legacy” system to operate concurrently with the AMA system. As the AMA‘s “Applicability” provision explains:
With respect to legacy claims, upon the issuance to a claimant of a statement of the case or supplemental statement of the case occurring on or after [February 19, 2019], a claimant may elect to participate in the new appeals system.
As seen, both the AMA, see
February 19, 2019. There is no dispute that Mr. Mattox received the RO decision that denied service connection for PTSD on December 28, 2015, thereby rendering his claim a legacy claim. Mr. Mattox‘s claim does not fall within the AMA system because the initial decision
Mr. Mattox‘s interpretation of
We therefore agree with the Veterans Court that the Board was not required to comply with the enhanced notice requirements of amended
III
We turn now to the second issue Mr. Mattox raises on appeal. As he did before the Veterans Court, he contends that the Board misinterpreted the benefit-of-the-doubt rule codified at
Mr. Mattox argues that the Board‘s interpretation of the benefit-of-the-doubt rule, which the Veterans Court affirmed, was wrong. In his view, to determine whether the
benefit-of-the-doubt standard has been met by a veteran, “VA adjudicators and the Board have two precise responsibilities.”
The government responds that the Veterans Court correctly rejected Mr. Mattox‘s reading of
government states that the statute ”does not say that the VA is precluded from considering the persuasiveness of record evidence or that the VA may not assign each piece of evidence probative weight.” Appellee‘s Br. 18. The government asserts that if Congress “had meant to impose such an unprecedented restriction on the VA‘s ability to consider record evidence, it would have said so.” Id. at 18–19. In support of its position, the government points to our recent decision in Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc Part II.B), where we stated that “the benefit-of-the-doubt rule does not apply when a factfinder is persuaded by the evidence to make a particular finding.” Appellee‘s Br. 20. In addition, at oral argument, the government argued that the benefit-of-the-doubt rule was inapplicable because, despite using the phrase “preponderance of the evidence,” what the Board and the Veterans Court ultimately found was that the evidence was not “in approximate balance.” Oral Arg. at 23:25–25:25 (noting the Veterans Court‘s statement that the evidence is “not in approximate balance” (citing Mattox, 34 Vet. App. at 74)).
We do not agree with Mr. Mattox that the Board and then the Veterans Court, in affirming the decision of the Board, committed reversible legal error.
For the benefit-of-the-doubt rule to apply, there must be “an approximate balance of positive and negative evidence” with respect to an “issue material” to a veteran‘s claim.
Where we part company with Mr. Mattox is in the next step of his argument. According to Mr. Mattox, once the Board identified the positive and negative evidence regarding his claim, it had to place the evidence on the scale and then step aside and simply determine if there was “an approximate balance of positive and negative evidence.” Critically, in Mr. Mattox‘s view, at this stage, the Board was not permitted to assess the quality of the evidence, Appellant‘s Br. 17, or “assign probative weight to the evidence . . . or . . . make credibility determinations regarding the evidence,” Appellant‘s Reply Br. 10. Because the Board did examine the evidence and did assign probative weight to it, he says it erred.
Mr. Mattox‘s argument is incorrect as a matter of law. Not only has Mr. Mattox failed to point to any statute or regulation that prohibits the kind of analysis that the Board undertook here, but what he proposes is contrary to controlling authority. Most significantly, just recently, in the en banc portion of the court‘s opinion in Lynch v. McDonough, we made it clear that the benefit-of-the-doubt-rule analysis involves assigning probative value to evidence. We stated: “[E]vidence is not in ‘approximate balance’ . . . and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other.” 21 F.4th at 781–82. It goes without saying that it cannot be determined whether “the evidence persuasively favors one side or the other” without assigning probative value to the evidence. Moreover, assigning probative value to evidence is something the Board regularly does. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (“We reaffirm that the evaluation and weighing of evidence are factual determinations committed to the discretion of the factfinder—in this case, the Board.“); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should
not be an absolute bar to the veteran‘s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.“); Baldwin v. West, 13 Vet. App. 1, 8 (1999) (stating that, to comply with the requirement of
Finally, contrary to Mr. Mattox‘s argument, the Board did not apply the wrong standard of proof. In Lynch v. McDonough, we chose to “depart from” the “‘preponderance of the evidence’ language” set forth in Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001), in the context of the benefit-of-the-doubt rule. Lynch, 21 F.4th at 781. We stated: “[T]he benefit-of-the-doubt rule simply applies if the competing evidence is in ‘approximate balance,’ which Ortiz correctly interpreted as evidence that is ‘nearly equal.‘” Id. As we have explained, in Mr. Mattox‘s case, the Board
CONCLUSION
For the foregoing reasons, the decision of the Veterans Court affirming the decision of the Board denying Mr. Mattox‘s claim of service connection for PTSD is affirmed.
AFFIRMED
COSTS
No costs.