Lynch v. McDonough

Case: 20-2067 Document: 65 Page: 1 Filed: 12/17/2021

United States Court of Appeals
for the Federal Circuit
______________________

JOE A. LYNCH,
Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2020-2067
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-3106, Senior Judge Mary J.
Schoelen.
______________________

Decided: December 17, 2021
______________________

MARK RYAN LIPPMAN, The Veterans Law Group,
Poway, CA, argued for claimant-appellant. Also repre-
sented by KENNETH M. CARPENTER, Law Offices of Carpen-
ter Chartered, Topeka, KS; ADAM R. LUCK, Gloverluck,
LLP, Dallas, TX.

EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, 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
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2 LYNCH v. MCDONOUGH

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 Plow-
shares, Connecticut Veterans Legal Center. Also repre-
sented 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.
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. Prin-
cipi, 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”
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LYNCH v. MCDONOUGH 3

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, con-
sidered 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 night-
mares, 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. New-
some was not observed or reported during the VA exami-
nation. 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 Disagree-
ment with the RO disputing the 30% disability rating. In
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4 LYNCH v. MCDONOUGH

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 symp-
toms 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 con-
ducted by Dr. Newsome, Dr. Jabbour, and the two VA ex-
aminers—“[Mr. Lynch] does not have social and
occupational impairment 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 examin-
ers; however, those findings are not supported by the sub-
jective 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
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LYNCH v. MCDONOUGH 5

administered by the Secretary. When there is an
approximate balance of positive and negative evi-
dence regarding any issue material to the determi-
nation 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 re-
garding 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 sat-
isfactorily 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 omit-
ted). 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 determina-
tion, or (B) a challenge to a law or regulation as applied to
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6 LYNCH v. MCDONOUGH

the facts of a particular case.” But we may “review and
decide any challenge to the validity of any statute or regu-
lation or any interpretation thereof” and “interpret consti-
tutional 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 ap-
plied the correct legal standard.” Lamour v. Peake,
544 F.3d 1317, 1321 (Fed. Cir. 2008). We review the Vet-
erans 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 “equi-
poise of the evidence” standard to trigger the benefit-of-the-
doubt rule and that this decreased his chance of receiving
a disability rating greater than 30% for PTSD. See Appel-
lant’s Br. 12–13. According to Mr. Lynch, Ortiz read the
modifier “approximate” out of the term “approximate bal-
ance” 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 sug-
gests that Ortiz expressly requires equipoise of the evi-
dence for a claimant to receive the benefit of the doubt.
Second, he contends that Ortiz’s statement that “the bene-
fit of the doubt rule is inapplicable when the preponderance
of the evidence is found to be against the claimant,”
274 F.3d at 1364, is contrary to the statutory “approximate
balance” standard.
A
Contrary to Mr. Lynch’s suggestion that Ortiz sets
forth an equipoise-of-the-evidence standard to trigger the
benefit-of-the-doubt rule, Ortiz explicitly gives force to the
modifier “approximate” as used in 38 U.S.C. § 5107(b).
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LYNCH v. MCDONOUGH 7

Ortiz found § 5107(b) to be “clear and unambiguous on its
face” and recited dictionary definitions of the words “ap-
proximate” and “balance” in concluding that under the
statute “evidence is in approximate balance when the evi-
dence in favor of and opposing the veteran’s claim is found
to be almost exactly or nearly equal.” 274 F.3d at 1364
(cleaned up). Thus, Ortiz necessarily requires that the ben-
efit-of-the-doubt rule may be triggered in situations other
than equipoise of the evidence—specifically, situations
where the evidence is “nearly equal,” 1 i.e., an “approximate
balance” of the positive and negative evidence as set forth
in § 5107(b) and 38 C.F.R. § 3.102. Ortiz, 274 F.3d
at 1364–65; see also Best Power Tech. Sales Corp. v. Austin,
984 F.2d 1172, 1177 (Fed. Cir. 1993) (“It is a basic principle
of statutory interpretation . . . that undefined terms in a
statute are deemed to have their ordinarily understood
meaning. For that meaning, we look to the dictionary.”
(first citing United States v. James, 478 U.S. 597, 604
(1986); and then citing Bd. of Educ. v. Mergens, 496 U.S.
226, 237 (1990))).
Mr. Lynch further suggests that, post-Ortiz, this court
has “interpreted the benefit-of-the-doubt rule as setting
forth an absolute equality-of-the-evidence or equipoise-of-
the-evidence standard.” Reply Br. 3 (citing Skoczen v.
Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009)). Mr. Lynch
is mistaken. Skoczen interpreted 38 U.S.C. § 5107(a), not
38 U.S.C. § 5107(b), and merely referred to the § 5107(b)
standard in passing dicta. Skoczen, 564 F.3d at 1324. Ac-
cordingly, Skoczen does nothing to disturb Ortiz.

1 Although Ortiz also uses the words “too close to
call” and a “tie goes to the runner” analogy in discussing
the term “approximate balance,” the case makes clear that
it goes further than mere ties—“nearly equal” evidence
triggers the benefit-of-the-doubt rule. 274 F.3d
at 1364–65.
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8 LYNCH v. MCDONOUGH

Amicus curiae Military-Veterans Advocacy Inc.
(“MVA”) argues that in certain decisions citing Ortiz, the
Veterans Court has articulated an equipoise-of-the-evi-
dence threshold for giving the veteran the benefit of the
doubt. See MVA Br. 8. In isolated cases, that may be so.
See, e.g., Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (stating
that “[if] the evidence is not in equipoise . . . the benefit of
the doubt rule would not apply”). The Veterans Court’s rec-
itation in Chotta of the standard is incorrect. 2
So, let us be clear. Under § 5107(b) and Ortiz, a claim-
ant is to receive the benefit of the doubt when there is an
“approximate balance” of positive and negative evidence,
which Ortiz interpreted as “nearly equal” evidence. This
interpretation necessarily includes scenarios where the ev-
idence is not in equipoise but nevertheless is in approxi-
mate balance. Put differently, if the positive and negative
evidence is in approximate balance (which includes but is
not limited to equipoise), the claimant receives the benefit
of the doubt.
B3
As to whether Ortiz correctly concluded that the bene-
fit-of-the-doubt rule does not apply when “the preponder-
ance of the evidence is found to be against the claimant,”
274 F.3d at 1364, Mr. Lynch argues that Ortiz was wrongly
decided because “the totality of the . . . evidence can both

2 This misstep in Chotta does not appear to have neg-
atively affected that veteran’s case. See 22 Vet. App. at 86
(vacating and remanding on the basis that the Board failed
to consider certain lay evidence of record).
3 The earlier opinion in this case, reported at
999 F.3d 1391 (Fed. Cir. 2021), is withdrawn, and this
opinion substituted therefor. Part II.B of this opinion has
been considered and decided by the court en banc. See Or-
der in this case issued this date.
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LYNCH v. MCDONOUGH 9

preponderate in one direction and be nearly or approxi-
mately in balance,” Reply Br. 3. Mr. Lynch contends that
“these two standards cannot co-exist” and that therefore
Ortiz eliminates any meaning of the word “approximate” in
§ 5107(b). Reply Br. 3. Ortiz rejected such reasoning, stat-
ing that “if the Board is persuaded that the preponderant
evidence weighs either for or against the veteran’s claim, it
necessarily has determined that the evidence is not ‘nearly
equal’ . . . and the benefit of the doubt rule therefore has no
application.” 274 F.3d at 1365. On that basis, the panel
ruled on this issue that it was bound by Ortiz.
Ortiz correctly established that the benefit-of-the-
doubt rule does not apply when a factfinder is persuaded
by the evidence to make a particular finding. See 274 F.3d
at 1365–66. And Ortiz made clear that, under its formula-
tion, a finding by “the preponderance of the evidence” re-
flects that the Board “has been persuaded” to find in one
direction or the other. 274 F.3d at 1366. But Ortiz’s pre-
ponderance-of-the-evidence formulation—while correctly
viewing the issue as one of persuasion—nonetheless could
confuse because other cases link “preponderance of the ev-
idence” to the concept of equipoise. E.g., Medina v. Califor-
nia, 505 U.S. 437, 449 (1992) (stating that preponderance-
of-the-evidence burden matters “only in a narrow class of
cases where the evidence is in equipoise”); see also Gold-
man Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141 S. Ct.
1951, 1963 (2021). Accordingly, to eliminate the potential
for confusion going forward, we depart from Ortiz’s “pre-
ponderance of the evidence” language and determine that
the benefit-of-the-doubt rule simply applies if the compet-
ing evidence is in “approximate balance,” which Ortiz cor-
rectly interpreted as evidence that is “nearly equal.” 4

4 The dissent characterizes the majority opinion as rein-
stituting the preponderance of the evidence standard un-
der a different linguistic formulation. Dissent
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10 LYNCH v. MCDONOUGH

As a corollary, evidence is not in “approximate balance”
or “nearly equal,” and therefore the benefit-of-the-doubt
rule does not apply, when the evidence persuasively favors
one side or the other. To be clear, Ortiz (and the instant
case) were not wrongly decided. 5 In the instant case, for
example, the Board made extensive findings that show it
was persuaded that Mr. Lynch was not entitled to a disa-
bility rating greater than 30% for PTSD. See, e.g.,
J.A. 20–21. And the Veterans Court made plain that the
evidence was quite clearly against the veteran, not in ap-
proximate balance. 6
CONCLUSION
We have considered Mr. Lynch’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED

at 1–2. That is not a correct characterization of the major-
ity opinion.
5 Indeed, we are not aware of any case that improp-
erly applied Ortiz in an outcome-determinative manner.
6 Today’s change in our construction of § 5107(b)
does not provide grounds for claims of clear and unmistak-
able error (“CUE”) for prior Board decisions. CUE “does
not include the otherwise correct application of a statute or
regulation where, subsequent to the Board decision chal-
lenged, there has been a change in the interpretation of the
statute or regulation.” 38 C.F.R. § 20.1403(e); see also
George v. McDonough, 991 F.3d 1227, 1234 (Fed. Cir. 2021)
(“CUE must be analyzed based on the law as it was under-
stood at the time of the original decision and cannot arise
from a subsequent change in the law or interpretation
thereof.”).
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LYNCH v. MCDONOUGH 11

COSTS
No costs.
Case: 20-2067 Document: 65 Page: 12 Filed: 12/17/2021

United States Court of Appeals
for the Federal Circuit
______________________

JOE A. LYNCH,
Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2020-2067
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-3106, Senior Judge Mary J.
Schoelen.
______________________

REYNA, Circuit Judge, with whom NEWMAN and O’MALLEY,
Circuit Judges, join, concurring-in-part and dissenting-in-
part from Part II.B.
Today the court takes en banc action directed to this
court’s precedent articulated in Ortiz v. Principi, 274 F.3d
1361 (Fed. Cir. 2001). The purpose of the en banc action is
to “clarify” the court’s holding in Ortiz. The result is that
the court departs from its holding in Ortiz and sets a new
analytical standard for applying the benefit-of-the-doubt
rule under 38 U.S.C. § 5107. I agree with the court’s deci-
sion to reject the preponderance of evidence standard set
in Ortiz. I cannot, however, agree with the court’s install-
ment of a “persuasion of evidence standard,’’ and the
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2 LYNCH v. MCDONOUGH

refusal to overturn Ortiz in its entirety. For the reasons
stated below, I concur-in-part and dissent-in-part from the
decision of the court.
The majority rejects the preponderance of the evidence
rule established in Ortiz. Maj. Op. 9. I agree that our hold-
ing in Ortiz required fixing. This is because Ortiz carries
the potential for withholding benefits from veterans to
which they are otherwise entitled. By providing clarifica-
tion, the court recognizes the remedial nature of veterans’
benefits law, as intended by Congress—including through
its statutory expression of the veterans’ benefit-of-the-
doubt rule. Today’s opinion, therefore, is a step in the right
direction, and I am pleased to take that step with my col-
leagues.
I dissent, however, from the court’s refusal to recognize
that Ortiz was wrongly decided. In Ortiz, the court held
that the benefit-of-the-doubt rule does not apply in cases
where the Board of Veterans’ Appeals finds that a prepon-
derance of the evidence is against the veteran’s claim.
Ortiz, 274 F.3d at 1365–66. The court reached this holding
after determining that the statute required no interpreta-
tion and upon consulting dictionaries to construe the mean-
ing of “approximate” and “balance.” Id. at 1364–65.
Today’s en banc decision acknowledges that the preponder-
ance of the evidence formulation carries potential confu-
sion. As a result, “to eliminate the potential for confusion
going forward,” the majority “depart[s] from Ortiz’s ‘pre-
ponderance of the evidence’ language.” Maj. Op. 9. This
means two things. First, the “preponderance of the evi-
dence” standard is repealed and replaced with a “persua-
sive evidence” standard. Id. at 9–10. Second, the
analytical structure underpinning the preponderant evi-
dence rule in Ortiz not only remains, but now girds the per-
suasive evidence standard. Not only is the persuasive
evidence standard, like the preponderance rule, not con-
templated by the statute, but its analytical framework has
as provenance the now-estranged Ortiz’s preponderant
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LYNCH v. MCDONOUGH 3

evidence rule. This result is a far cry from the language
contemplated by Congress. Accordingly, I dissent from the
court’s adoption of the persuasive evidence standard.
As the court maintains Ortiz’s analytical framework,
we must be vigilant against the possibility that “close
cases” may evade review. Where the evidence is close, but
the Department of Veterans Affairs (VA) ultimately deter-
mines that the evidence “persuasively” forecloses a vet-
eran’s claim, the VA can make its determination without
explaining that the case was in fact a close call. Put differ-
ently, if the VA internally recognizes the evidence is close
but finds in the end that the evidence “persuasively” pre-
cludes the veteran’s claim, the VA does not need to disclose
that the evidence may have been “close.” There is no re-
quirement to do so, and the majority opinion does nothing
to change this. This shields such determinations from
meaningful appellate review under § 5107(b). This out-
come disincentivizes the agency from fulfilling its duty to
provide an adequate administrative record in certain cases
and thus hinders appellate review. See In re Sang Su Lee,
277 F.3d 1338, 1342 (Fed. Cir. 2002) (“For judicial review
to be meaningfully achieved . . . , the agency tribunal must
present a full and reasoned explanation of its decision. The
agency tribunal must set forth its findings and the grounds
thereof, as supported by the agency record, and explain its
application of the law to the found facts.”). In my view, the
VA should be motivated, if not required, to include a state-
ment and explanation in cases where it concludes the evi-
dence is not in approximate balance but thought the case a
close call. I would favor such a requirement to ensure that
the question of whether the evidence is in approximate bal-
ance under § 5107(b) is meaningfully subject to appellate
review in all cases.
In sum, I concur-in-part and dissent-in-part with the
majority decision. I agree with the decision to repeal the
preponderance of evidence rule adopted in Ortiz. But I dis-
agree with the decision not to overturn Ortiz in its entirety.
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4 LYNCH v. MCDONOUGH

I also disagree with the new rule the majority has minted,
the persuasion of evidence rule, for use in applying the ben-
efit-of-the-doubt provision set out in 38 U.S.C. § 5107.
The words of the statute are no mystery. They are
plain and have common meaning and require no further
definition. The imperative nature of the statute is also
clear. In any issue material to the veteran’s claim, the ben-
efit of the doubt shall go to the veteran.
(b) Benefit of the Doubt.—
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 evi-
dence regarding any issue material to the determi-
nation of a matter, the Secretary shall give the
benefit of the doubt to the claimant.
38 U.S.C. § 5107(b).