Supreme Court weighs veterans' disability denials, affecting 'untold numbers' of vets

WASHINGTON − Norman Thornton, a veteran of the first Gulf War, thinks the government downgraded his level of disability from PTSD.

Joshua Bufkin was denied post-traumatic stress disorder benefits after leaving the Air Force because doctors didn’t agree whether he qualified.

Both sought a review of their claims from a special veterans court − which sided against them.

Now the Supreme Court is considering how the U.S. Court of Appeals for Veterans Claims should review benefit denials and how to ensure decisions are tipped in a veteran’s favor when there are close calls.

The issue the justices took up Wednesday could have “profound implications for untold numbers of veterans,” lawyers for Thornton and Bufkin said in a legal filing about the disability determinations made by the U.S. Department of Veterans Affairs .

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“VA often errs in benefits adjudications, and the difference between an award and a denial has life-altering consequences for disabled veterans,” the lawyers wrote.

The challengers have the backing of several veterans’ groups who argue that veterans have been entitled to the benefit of the doubt for service-connected disability payments for more than a century. And Congress has twice stepped in to ensure that happens.

In 1988, Congress created the Veterans Court to review disputed determinations and codified the requirement that scales should be tipped in favor of the veteran in close cases.

But veterans’ groups complained that the new court was being too deferential to the VA when reviewing the agency’s decisions.

In 2002, Congress directed the Veterans Court to “take due account” of the VA’s application of the benefit-of-the doubt requirement.

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The veterans say Congress wanted a more thorough review, especially because the evidence is often not clear cut. The federal government says the Veterans Court must only review the decision for a clear error, not re-evaluate each piece of evidence.

To accept the federal government's view, Justice Clarence Thomas asked Wednesday, "don't we have to accept that Congress passed a meaningless provision?"

Sopan Joshi, the Justice Department attorney representing Veterans Affairs, said the language Congress added isn't meaningless. Joshi said Congress was reminding the Veterans Court of its obligation and the court reacted.

"I think it did have a good effect," he said.

But Melanie Bostwick, the lawyer representing the veterans, said the Veterans Court is still too often acting as a rubber stamp.

“It has to be some meaningful review," Bostwick said.

In Bufkin’s case, the Veterans Court found nothing obviously wrong with the VA’s determination that one doctor’s assessment about whether he suffered from service-related PTSD was more comprehensive and persuasive than another’s.

His lawyers argue the court failed to review whether the VA applied the benefit-of-the-doubt standard to the full set of evidence. Bufkin said he was traumatized by being caught between his wife’s threats to kill herself if he didn’t leave the military and the military’s alleged response that he could leave the service or get a divorce.

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The federal government said Bufkin’s case was not a close call as the preponderance of evidence was against him.

Similarly, in Thornton's case, the VA found that the cumulative evidence showed Thornton did not merit a higher level of disability payments.

Thornton has had difficulty with work and with social interactions, among other issues, qualifying him as 50% disabled, according to the VA. But Thornton said his disability rating should be higher based on one examiner's assessment of how "dissociative episodes" have affected his employment.

The U.S. Court of Appeals for the Federal Circuit agreed with the government that the Veterans Court properly reviewed both determinations.

A decision in Bufkin v. McDonough is expected by summer.

This article originally appeared on USA TODAY: Supreme Court weighs veterans' disability denials, affecting 'untold numbers' of vets