with whom Circuit Judge NEWMAN joins, dissenting.
I disagree with the court’s imposition of the traditional rule of issue preclusion embodied in Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941), upon the veterans’ system. The Hormel rule applies to appeals from adversarial trial courts or administrative hearings. It protects against surprise issues on appeal for which parties have not had the opportunity to present relevant evidence below. Id. at 556, 61 S.Ct. 719. Application of such a rule in the veterans’ system is *1360inappropriate because the facts are developed in non-adversarial circumstances, and the system is uniquely paternalistic. Therefore, I respectfully dissent.
I
Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), is the appropriate model. It held that a judicially-imposed requirement of issue exhaustion is inappropriate in the social security context because the parties have a nonadversarial relationship:
It is true that we have imposed an issue-exhaustion requirement even in the absence of a statute or regulation. But the reason we have done so does not apply here.... The desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding. Where the parties are expected to develop the issues in an adversarial administrative proceeding, it seems to us that the rationale for requiring issue exhaustion is at its greatest. Where, by contrast, an administrative proceeding is not adversarial, we think the reasons for a court to require issue exhaustion are much weaker.
Id. at 108-10, 120 S.Ct. 2080 (internal quotations and citations omitted) (emphasis added). Because social security proceedings are inquisitorial, far from adversarial, in which the function of the administrative judge is to investigate facts and develop arguments both for and against granting benefits, Sims concluded that “the Honnel analogy to judicial proceedings is at its weakest in this area. The adversarial development of issues by the parties — the ‘com[ing] to issue’ — on which that analogy depends simply does not exist.” Id. at 112, 120 S.Ct. 2080 (citation omitted).
The Sims rationale applies with equal, if not greater force in this arena. Indeed, “the degree to which the analogy to normal adversarial litigation applies,” id. at 109, 120 S.Ct. 2080, is even slighter than in Sims. The system for awarding veterans’ benefits is “imbued with special beneficence” from a sovereign grateful to a “special class of citizens, those who risked harm to serve and defend their country.” Bailey v. West, 160 F.3d 1360, 1370 (Fed.Cir.1998). It is “supposed to be a nonad-versarial, ex parte, paternalistic system,” that is uniquely pro-claimant. Collaro v. West, 136 F.3d 1304, 1309 (Fed.Cir.1998). Viewed in its entirety, the veterans’ system is constructed as the antithesis of an adversarial, formalistic dispute resolving apparatus. It is entirely inquisitorial in the regional offices and at the Board of Veterans’ Appeals where facts are developed and reviewed. The purpose is to ensure that the veteran receives whatever benefits he is entitled to, not to litigate as though it were a tort case. If issue preclusion is inappropriate in the inquisitorial social security forum, it should not be imposed upon the veterans’ system, either. The mandate of both is to provide what has been earned. But as we observed in Bailey, 160 F.3d at 1365, the salutary system has changed since the Veterans’ Judicial Review Act to the opposite of what Congress intended.
It is true that Sims involved court review of agency decisions, and we are reviewing a court judgment. But that is of no moment because the Veterans Court is not a fact finding body like a district court. Review permits no additional evidence, and does not disturb factual findings. The factual foundation of the administrative decision of the board passes through the Veterans Court to us as a matter of law. Therefore, the Honnel analogy is again inappropriate because we are authorized to address only issues of law.
*1361II.
Even if the court’s formulation of the Hormel framework were appropriate here, I would think the court should be less parsimonious in its discretionary review decisions. I would expect the court to decide the proper standard for rebutting service-connection. This question falls squarely within the third exception to issue preclusion set out by the court: “[W]e may decide to apply the correct law even if the parties do not argue it, if an issue is properly before this court.” Ante, at 1357 (relying on Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”)).
Forshey claimed that insufficient evidence was used to meet the preponderance of the evidence standard in 38 U.S.C. § 5107(b),1 the benefit of the doubt rule, to rebut the presumption of service connection set out in 38 U.S.C. § 105(a)2 and elucidated in 38 C.F.R. § 3.301(c)(2).3 Her argument is, in essence, and has been since the board level, that insufficient evidence existed to deny her benefits per section 3.301(c)(2). The court has already said the case is properly before us.4 The court’s proposition that this exception does not apply because Forshey did not explicitly urge that a clear and convincing standard be applied, ante, at 1357-58, defies logic. This exception grants us the authority to identify what type and how much evidence is needed to rebut service-connection under 38 U.S.C. § 105(a) and 38 C.F.R § 3.301(c)(2), and apply the proper constructions.
We have discretion to consider questions not raised below; we should exercise it. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). This court has already set out a series of cir*1362cumstances in which exceptions to issue preclusion arise. L.E.A. Dynatech, Inc. v. Allina, 49 F.3d 1527, 1531 (Fed.Cir.1995). We may choose to consider arguments if the issue is one of pure law; the proper resolution is beyond all doubt; there was no opportunity to raise the objection below; it is a significant question of general impact or public concern; or it is in the interest of substantial justice. Id. Even Hormel advocates an exception to the strict application of issue preclusion “as justice may require.” 312 U.S. at 559, 61 S.Ct. 719. “There may always be ... particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.” Id. at 557, 61 S.Ct. 719.
The issue in this case is a purely legal one, and requires no additional factual development. It is a significant question of public concern because fundamental due process is implicated. And the standard of review requires clarification so that the parties and factfinders understand the level of evidentiary probity needed to rebut the presumption of service-connection. Review of the standard by which veterans or their dependents may be denied benefits is in the interest of substantial justice. I see no need to constrain our discretion; because Congress created a veteran-friendly system, the court should generously indulge a presumption that the exceptions to issue preclusion apply.
III.
The standard of proof applied to rebut the section 105 presumption of service-connection was derived from an interpretation of 38 U.S.C. § 5107(b) (then § 3007(b)) in Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This statute provides that when the positive and negative evidence concerning an issue material to the determination of a veteran’s benefit claim is roughly in equipoise, the benefit of the doubt is to be given to the claimant. See id. at 55. The United States Court of Appeals for Veterans Claims likened this to the rule in baseball that “the tie goes to the runner.” Id. Gilbert determined that in light of section 5107(b), “the preponderance of the evidence must be against the claim for benefits to be denied.” Id. at 54.
In my view, section 5107(b) sets out not a standard of proof, but a rule for weighing evidence material to a claim. It is operative only after a claimant produces evidence to establish his claim. In contrast, where one relies on a presumption, he does not yet need to offer evidentiary support. Section 5107(b) does not address the rebuttal of a presumption.
A presumption has evidentiary value, but it is not a form of evidence. Routen v. West, 142 F.3d 1434, 1439 (Fed.Cir.1998). Instead, a presumption affords a party “the luxury of not having to produce specific evidence to establish the point at issue. When the predicate evidence is established that triggers the presumption, the further evidentiary gap is filled by the presumption. However, when the opposing party puts in proof to the contrary of that provided by the presumption, and that proof meets the requisite level, the presumption disappears.” Id. at 1440 (citations omitted) (emphasis added). When such evidence overcomes the presumption, “[t]he party originally favored by the presumption is now put to his factually-supported proof. This is because the presumption does not shift the burden of persuasion, and the party on whom that burden falls must ultimately prove the point at issue.... ” Id. Once a fact is no longer presumed, a party must *1363rely on actual evidence to establish its existence.
Negative evidence, actual evidence which weighs against a party, must not be equated with the absence of substantive evidence. Rebutting a presumption requires affirmative proof. See Amin v. Merit Sys. Prot. Bd., 951 F.2d 1247, 1254 (Fed.Cir.1991). Forshey correctly argues that the government failed to offer affirmative proof that the veteran’s death was proximately and immediately caused by his willful misconduct. It offered that the veteran had an elevated blood alcohol level, the weather was clear, the road surface was dry, it was daylight, and there was no sign of mechanical failure of the motorcycle. But this says nothing about causation; it reflects an absence of causal evidence. Forshey was denied benefits based on a negative inference from the lack' of an apparent cause. The absence of actual evidence is not substantive “negative evidence.”
Once all the actual positive and negative evidence is presented, proof is assessed in the manner required by section 5107(b), with doubt resolved in the veteran’s favor. The determination, then, of whether a presumption is rebutted does not involve a weighing of the evidence for and against the material issues in a claim in accordance with section 5107(b). Instead, the presumption is rebutted when the contrary evidence “meets the requisite level” to cast sufficient doubt on its viability. Routen, 142 F.3d at 1440. Other statutes related to veterans’ benefits have explicitly set forth this requisite level, see, e.g., 38 U.S.C. § 1154(b) (1994) (“Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.”), but section 105 is silent.
Even if the Secretary had promulgated a regulation setting out an evidentiary standard, we would not be bound to defer to a preponderance standard. See Gardner v. Brown, 5 F.3d 1456, 1463 (Fed.Cir.1993) (refusing to defer to a long-standing Veterans Administration regulation on four separate bases), aff'd, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). In this instance, however, section 3.301(c)(2) of the regulation does not provide an evi-dentiary standard by which the section 105(a) presumption that an injury occurs during active service may be rebutted. Instead, the Secretary argues that the preponderance of the evidence standard applies based on section 5107(b). To the contrary, I believe the veterans’ benefits system demands a more exacting standard.
IV.
A standard of proof serves to “instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions.” In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “[T]he minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.” Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Over time, three general standards have emerged: proof by a preponderance of the evidence, proof by clear and convincing evidence, and proof beyond a reasonable doubt.
The Supreme Court’s discussion in Addington v. Texas, 441 U.S. 418, 423-25, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), provides a helpful summary of the standards of proof and their rationales. In civil suits, the preponderance of the evidence standard has been employed, allocating the risk of error almost evenly between parties in a situation with which society is only *1364minimally concerned. At the other end is the reasonable doubt standard, typically reserved for criminal cases. It provides the toughest standard for rebuttal of the presumption that an individual is innocent until proven guilty, reflecting the grave concern for errors that could send an innocent individual to prison. As the Court noted, “[i]n the administration of criminal justice, our society imposes almost the entire risk of error upon itself.” Id. at 423-24, 99 S.Ct. 1804.
The clear and convincing evidence standard has been used in civil suits where “particularly important individual interests” are at stake, under circumstances where the interests are substantially more important than the “mere loss of money,” or where there are accusations of “quasi-criminal wrongdoing.” Id. at 424, 99 S.Ct. 1804. Under these conditions, societal interest dictates that one side should be afforded protection from the risk of error that exceeds the limits of a preponderance standard but falls short of the exacting standard in criminal cases. See, e.g., Markland v. Office of Personnel Management, 140 F.3d 1031, 1035 (Fed.Cir.1998) (agency establishing rationale for reduction in force acquires presumption of good faith and lawfulness rebuttable by clear and convincing evidence); Pennwalt Corp. v. Akzona Inc., 740 F.2d 1573, 1578-79 (Fed.Cir.1984) (party challenging presumptive validity of a patent must present clear and convincing evidence of invalidity).
In devising the veterans’ benefits system, Congress has provided many statutory advantages to lighten the burden of proving entitlement to benefits: several presumptions (including the one before us), the benefit of the doubt rule, and the duty of the Secretary to assist a claimant in developing the facts of his claim, see, e.g., Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (codified as amended in scattered sections of 38 U.S.C.A.). Furthermore, the Supreme Court’s mandate that any interpretive doubt about the meaning of language in a statute be resolved in the veteran’s favor derives from an appreciation of the benevolent intent behind the veterans’ system. See Brown v. Gardner, 513 U.S. 115, 117-18, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994).
It is apparent that a preponderance of the evidence standard does not fairly distribute the risk between a veteran and the government. Congress intends that “if any error occurs, it will occur in the veteran’s favor.” Jensen, 19 F.3d at 1417 (emphasis added). The government is more capable of shouldering the burden of error if an undeserving claimant prevails, than would be a deserving veteran or his surviv- or wrongly denied benefits. Therefore, no less than a showing of clear and convincing evidence to the contrary is sufficient to rebut the presumption of service-connection afforded a veteran under 38 U.S.C. § 105.
This conclusion fits comfortably within the statutory scheme of the veterans’ benefits system. The clear and convincing standard is explicitly present in other presumptive statutes. See 38 U.S.C. § 1154(b) (1994) (service-connection for disease or injury suffered by combat veterans must be rebutted by clear and convincing evidence); id. § 1111 (requiring clear and unmistakable evidence to rebut a presumption of sound condition); see also 38 C.F.R. § 3.306(b) (2001) (clear and unmistakable evidence necessary to rebut a presumption relating to service aggravation of preexisting conditions). There is no reason in law or logic for a different rule here.
This case is another illustration of the old adage: “Be careful what you wish for, *1365you just might get it.” Veterans sought for over a hundred years to secure judicial review of the Secretary’s decisions. Now that they have it, they are finding that judicialization is leading to prolonged delays and a growing complexity of rules that rival the tax code in opaqueness. Congress should revisit its legislative handiwork and restore the veterans’ system to its original purpose set out by President Lincoln: “[T]o care for him who shall have borne the battle, and for his widow, and his orphan.” Second Inaugural Address of Abraham Lincoln (Saturday, March 4, 1865), in Inaugural Addresses of the Presidents of the United States from George Washington 1789 to George Bush 1989, at 143 (U.S. Gov’t Printing Office, Bicentennial ed.1989).
. 38 U.S.C. § 5107(b) (1994) provides:
When, after consideration of all evidence and material of record in a case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section.
. 38 U.S.C. § 105(a) (1994) provides in relevant part:
An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty ... unless such injury or disease was a result of the person’s own willful misconduct or abuse of alcohol or drugs.
. 38 C.F.R. § 3.301(c)(2) (2001) (language unchanged since 1990) provides in relevant part:
The simple drinking of alcoholic beverage is not of itself willful misconduct.... If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct.
. The court carefully construes the language of our jurisdictional statute, 38 U.S.C. § 7292, and concludes that jurisdiction is proper because the Court of Appeals for Veterans Claims relied on 38 C.F.R. § 3.301(c)(2); explicitly addressed the negative evidence issue raised by 38 U.S.C. § 5107(b); and twice elaborated that denial of Forshey’s claims required the burden of proof embodied in section 5107(b), a preponderance of the evidence. Ante, at 1352-53. The original panel decision made the same jurisdictional determinations. See Forshey v. Gober, 226 F.3d 1299 (Fed.Cir.2000) (vacated).