Case: 21-2329 Document: 50 Page: 1 Filed: 08/09/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMAN F. THORNTON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2329
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-882, Judge Joseph L. Falvey, Jr.
______________________
Decided: August 9, 2023
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
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, ELIZABETH MARIE HOSFORD, PATRICIA
M. MCCARTHY; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
Case: 21-2329 Document: 50 Page: 2 Filed: 08/09/2023
2 THORNTON v. MCDONOUGH
______________________
Before LOURIE, CLEVENGER, and STARK, Circuit Judges.
CLEVENGER, Circuit Judge
Norman F. Thornton appeals from the final decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“Board”), which denied his claim for a
rating above 50% for his service-connected disability from
post-traumatic stress disorder (“PTSD”). Thornton v.
McDonough, No. 20-0882, 2021 WL 2389702 (Vet. App.
June 11, 2021). For the reasons set forth below, we affirm
the final decision of the Veterans Court.
I
Section 5107(b) of Title 38 provides that “[w]hen there
is an approximate balance of positive and negative evi-
dence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant.” If the competing evidence on a material
issue is in “approximate balance” or “nearly equal,” the
benefit of the doubt rule requires the Board to decide the
material issue in favor of the veteran. Lynch v.
McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).
In this case, Mr. Thornton argued to the Board that he
was entitled to the benefit of the doubt regarding the issue
of his entitlement to an increased rating for his PTSD. Af-
ter assessing the evidence of record concerning the sever-
ity, frequency, and duration of Mr. Thornton’s symptoms,
the Board concluded that “[t]here is no doubt to be resolved;
a higher rating is not warranted. 38 U.S.C. § 5107(b).”
Mr. Thornton appealed the Board’s adverse decision to
the Veterans Court. The scope of the Veterans Court’s re-
view authority is set forth in 38 U.S.C. § 7261. Relevant to
this case, § 7261(a)(4) requires the Veterans Court to re-
view adverse material fact determinations by the Board for
Case: 21-2329 Document: 50 Page: 3 Filed: 08/09/2023
THORNTON v. MCDONOUGH 3
clear error. In testing such fact determinations for clear
error, § 7261(b) requires the Veterans Court to review the
entire record of proceedings in the case before the Secre-
tary, including the parts of the record before the Board,
and, as part of that review, to “take due account of the Sec-
retary’s application of section 5107(b) of this title.” 38
U.S.C. § 7261(b)(1).
Because the overall evidence on the degree of Mr.
Thornton’s PTSD was not in approximate balance, the Vet-
erans Court concluded that the benefit of the doubt rule did
not apply – the same conclusion reached by the Board after
its assessment of the record. Thus, on review by the Vet-
erans Court, no clear error was shown in the Board’s as-
sessment of the balance of the factual evidence concerning
the severity of Mr. Thornton’s PTSD.
II
Mr. Thornton’s appeal to this court argues that the Vet-
erans Court misinterpreted § 7261(b)(1)’s requirement
that the Veterans Court, when undertaking review pursu-
ant to § 7261(a), “take due account of the Secretary’s appli-
cation of section 5107(b) of this title.” In addition to the
§ 7261(a) review of Mr. Thornton’s claim of entitlement to
the benefit of the doubt which the Veterans Court con-
ducted, Mr. Thornton argues that “taking due account” of
the benefit of the doubt rule requires the Veterans Court to
conduct an additional separate and independent de novo
review of the entire record, to assure that the veteran has
not improperly been denied the benefit of the doubt. Fur-
ther, Mr. Thornton argues that “taking due account” re-
quires that this additional level of review be conducted sua
sponte by the Veterans Court even if the veteran has not
challenged a Board’s determination that the benefit of the
doubt rule does not apply.
The same interpretation questions Mr. Thornton raises
in this case recently were presented to and decided by this
court in Bufkin v. McDonough, No. 2022-1089 (Fed. Cir.
Case: 21-2329 Document: 50 Page: 4 Filed: 08/09/2023
4 THORNTON v. MCDONOUGH
Aug. 3, 2023). As the decision in Bufkin explains, the stat-
utory command that the Veterans Court “take due account”
of the benefit of the doubt rule does not require the Veter-
ans Court to conduct any review of the benefit of the doubt
issue beyond the clear error review required by § 7261, and
“if no issue that touches upon the benefit of the doubt rule
is raised on appeal, the Veterans Court is not required to
sua sponte review the underlying facts and address the
benefit of the doubt rule.” Bufkin, slip op. at 7-9.
Because Mr. Thornton’s preferred interpretation of
§ 7261(b)(1) was rejected in Bufkin, we must also reject it
in this appeal. Other than the statutory interpretation is-
sue, Mr. Thornton does not fault the decision of the Veter-
ans Court, and we thus affirm the Veterans Court’s
decision.
AFFIRMED
COSTS
No costs.