(Slip Opinion)

OCTOBER  TERM,  2024

1

Syllabus

NOTE:  Where  it  is  feasible,  a  syllabus  (headnote)  will  be  released,  as  is
being  done  in  connection  with  this  case,  at  the  time  the  opinion  is  issued.
The  syllabus  constitutes  no  part  of  the  opinion  of  the  Court  but  has  been
prepared  by  the  Reporter  of  Decisions  for  the  convenience  of  the  reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BUFKIN v. COLLINS, SECRETARY OF VETERANS
AFFAIRS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

No. 23–713.  Argued October 16, 2024—Decided March 5, 2025

The Department of Veterans Affairs (VA) applies a “benefit-of-the-doubt
rule” that tips the scales in a veteran’s favor when evidence regarding
any issue material to a service-related disability claim is in “approxi-
mate balance.”  38 U. S. C. §5107(b).  Petitioners are veterans who ap-
plied for service-connected post-traumatic stress disorder (PTSD) dis-
ability benefits and were dissatisfied with the VA’s resolution of their
claims.    Petitioner  Joshua  Bufkin  claimed  that  his  PTSD  stemmed
from his military service, but the VA found no clear link.  Petitioner
Norman  Thornton  obtained  service-connected  PTSD  disability  bene-
fits, but the VA denied his most recent request to increase his disabil-
ity  rating.  These  adverse  determinations  were  reviewed  de novo  by
the Board of Veterans’ Appeals, which rendered final decisions on be-
half of the VA denying the claims.  Petitioners then challenged the ad-
verse  determinations  before  the  U. S.  Court  of  Appeals  for  Veterans
Claims (Veterans Court).  Under §7261(a), the Veterans Court reviews
legal  issues  de  novo  and  factual  issues  for  clear  error.    And  under
§7261(b)(1), the Veterans Court must “take due account” of the VA’s
application of the benefit-of-the-doubt rule.  Applying those standards,
the Veterans Court affirmed the VA’s adverse benefit determinations,
finding that the Board’s approximate-balance determinations were not
clearly erroneous.  The petitioners then appealed to the Federal Cir-
cuit,  challenging  the  Veterans  Court’s  legal  interpretation  of
§7261(b)(1), and arguing that the statutory command to “take due ac-
count” of the VA’s application of the benefit-of-the-doubt rule requires
the Veterans Court to review the entire record de novo and decide for
itself  whether  the  evidence  is  in  approximate  balance.    The  Federal
Circuit rejected this argument and affirmed.

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Syllabus

Held: The VA’s determination that the evidence regarding a service-re-
lated disability claim is in “approximate balance” is a predominantly
factual determination reviewed only for clear error.  Pp. 8–17.

(a) Under  §7261(b)(1)’s  plain  text,  the  Veterans  Court  must  “take
due  account”  of  the  VA’s  application  of  the  benefit-of-the-doubt  rule.
This  requirement  directs  the  Veterans  Court  to  give  appropriate  at-
tention to the VA’s work.  The Veterans Court must review the VA’s
application of the benefit-of-the-doubt rule “n making the determi-
nations under subsection (a).”  §7261(b)(1).  Accordingly, the standards
of review provided in subsection (a) also govern the Veterans Court’s
review  of  benefit-of-the-doubt  issues.    Section  7261(b)(1)  makes  ex-
plicit the Veterans Court’s previously implicit duty to review the VA’s
application of the benefit-of-the-doubt rule, pursuant to the standards
set forth in subsection (a).   Pp. 8–10.

(b) The appropriate standard of review for any given challenge de-
pends on whether the challenge is factual or legal in nature.  The par-
ties contest whether a veteran’s challenge to the VA’s determination
that the evidence on a particular material issue is not in approximate
balance involves a legal inquiry subject to de novo review, or a factual
finding, or at least a predominantly factual, mixed question of law and
fact, subject to clear-error review.

The approximate-balance determination involves two steps.  First,
the VA reviews each item of evidence and assigns weight to it—a fact-
finding inquiry reviewed only for clear error.  Second, the VA deter-
mines whether the evidence is in approximate balance.  See §5107(b).
This second step includes both legal and factual components: factual
because it involves marshaling and weighing evidence, and legal be-
cause the “approximate balance” determination involves whether the
evidence satisfies a legal standard.  The VA’s approximate-balance de-
termination  is  thus  at  most  a  mixed  question.    And  the  appropriate
standard of review for a mixed question depends “on whether answer-
ing it entails primarily legal or factual work.”  U. S. Bank N. A. v. Vil-
lage at Lakeridge, LLC, 583 U. S. 387, 396.

Reviewing  a  determination  whether  record  evidence  is  approxi-
mately balanced is “about as factual sounding” as any question gets.
Id., at 397.  In Bufkin’s case, the Board weighed medical opinions and
family testimony to assess his PTSD claims.  Similarly, the Board in
Thornton’s  case  analyzed  symptom  severity  and  medical  evidence  to
assess his disability rating.  Both cases demonstrate that approximate-
balance determinations require case-specific factual review warrant-
ing clear-error review.  Pp. 10–13.

(c) Petitioners’ counterarguments are unpersuasive.  First, petition-
ers urge that by amending §7261(b)(1) to include the modest phrase,
“take  due  account,”  Congress  imposed  a  new  standard  of  review  for

Cite as:  604 U. S. ____ (2025)

3

Syllabus

challenges to the VA’s application of the benefit-of the-doubt rule.  But
had Congress intended to do so, it would have identified a standard,
just  as  it  did  in  §7261(a).    Petitioners  next  argue  that,  even  if
§7261(b)(1) incorporates §7261(a)’s standards of review, the VA’s ap-
proximate-balance determination is much like a court’s probable-cause
determination, which involves a mixed-question inquiry that appellate
courts review de novo.  Ornelas v. United States, 517 U. S. 690, 699.
Two features distinguish the probable-cause determination from the
VA’s  determination  here.    First,  probable  cause  is  a  constitutional
standard,  creating  a  strong  presumption  that  determinations  under
that standard are subject to de novo review.  By contrast, the approxi-
mate-balance determination is a creature of statute, not the Constitu-
tion.  Second, probable cause poses a question that requires substan-
tial  “legal  work,”  U. S.  Bank,  583  U. S.,  at  398,  but  the  VA’s
approximate-balance  determination  lacks  a  comparable  legal  compo-
nent.

Petitioners contend that the Federal Circuit’s reading of §7261(b)(1)
renders  the  provision  superfluous.    While  this  Court’s  reading  of
§7261(b)(1)  might  involve  some  redundancy,  the  canon  against  sur-
plusage does not apply here because petitioners have not identified a
competing interpretation that would avoid redundancy.  See Marx v.
General Revenue Corp., 568 U. S. 371, 385.  Pp. 13–17.

75 F. 4th 1368, affirmed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C.
J.,  and  ALITO,  SOTOMAYOR,  KAGAN,  KAVANAUGH,  and  BARRETT,  JJ.,
joined.  JACKSON,  J.,  filed  a  dissenting  opinion,  in  which  GORSUCH,  J.,
joined.

Cite as:  604 U. S. ____ (2025)

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Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
United  States  Reports.  Readers  are  requested  to  notify  the  Reporter  of
Decisions,  Supreme  Court  of  the  United  States,  Washington,  D. C.  20543,
pio@supremecourt.gov, of any typographical or other formal errors.

SUPREME COURT OF THE UNITED STATES

_________________

No. 23–713
_________________

JOSHUA E. BUFKIN, PETITIONER v. DOUGLAS A.
COLLINS, SECRETARY OF VETERANS
AFFAIRS

NORMAN F. THORNTON, PETITIONER v. DOUGLAS
A. COLLINS, SECRETARY OF VETERANS
AFFAIRS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT



 JUSTICE THOMAS delivered the opinion of the Court.
When evaluating a veteran’s claim for service-related dis-
ability  benefits,  the  Department  of  Veterans  Affairs  (VA)
applies a unique standard of proof known as the “benefit-of-
the-doubt rule.”  This rule requires the VA to “give the ben-
efit of the doubt to the claimant” whenever “there is an ap-
proximate balance of positive and negative evidence” on any
issue  material  to  the  claim.    38  U. S. C.  §5107(b).    When
reviewing  the  VA’s  benefits  decisions,  the  United  States
Court  of  Appeals  for  Veterans  Claims  (Veterans  Court)
must  “take  due  account”  of  the  VA’s  application  of  the
benefit-of-the-doubt rule.  §7261(b)(1).  The question before
us is what the Veterans Court must do to comply with that
statutory command.  We hold that the Veterans Court must
review  the  VA’s  application  of  the  rule  the  same  way  it
would any other determination—by reviewing legal issues
de  novo  and  factual  issues  for  clear  error.    See  §7261(a).

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BUFKIN v. COLLINS

Opinion of the Court

And, we hold that the VA’s determination that the evidence
is in approximate balance is a predominantly factual deter-
mination reviewed only for clear error.

I
A
Congress provides veterans a wide range of benefits, in-
cluding compensation for disabilities caused or aggravated
by active-duty military service.  §§1110, 1131.  The VA, led
by the Secretary of Veterans Affairs, administers the laws
that provide for those benefits.  §§301, 303.

Veterans  who  suffer

from  service-connected  post-
traumatic stress disorder (PTSD) are among those entitled
to disability benefits.  To establish service-connected PTSD,
the VA requires medical evidence diagnosing the condition
and  linking  the  veteran’s  symptoms  with  an  “in-service
stressor,”  as  well  as  credible  evidence  that  the  in-service
stressor occurred.  38 CFR §3.304(f ) (2023).  When the VA
finds those conditions satisfied, it assigns a disability rating
that  reflects  reductions  in  earning  capacity.    38  U. S. C.
§1155; 38 CFR §4.130.  This rating determines the amount
of compensation a veteran receives.

A veteran begins the claims process by submitting a re-
quest for benefits to the VA.  A VA regional office then ad-
judicates the claim.  If the regional office issues an adverse
decision,  the  veteran  may  seek  de  novo  review  from  the
Board of Veterans’ Appeals.  The Board is an administra-
tive body within the VA that renders final decisions for the
agency.  38 U. S. C. §§7101, 7104(a).

Congress designed the VA’s adjudicatory process to func-
tion  “ ‘with  a  high  degree  of  informality  and  solicitude  for
the claimant.’ ”  Henderson v. Shinseki, 562 U. S. 428, 431
(2011) (quoting Walters v. National Assn. of Radiation Sur-
vivors, 473 U. S. 305, 311 (1985)).  For example, Congress
imposes  no  statute  of  limitations  on  a  veteran’s  claim  for
benefits.  The process at both the regional offices and the

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Opinion of the Court

Board is ex parte and nonadversarial.  38 CFR §§3.103(a),
20.700(c).  And, the VA must assist veterans in developing
the  evidence  necessary  to  substantiate  their  claims.  38
U. S. C. §5103A(a)(1).

Congress also requires the regional offices and the Board
to  give  veterans  the  benefit  of  the  doubt  on  close  issues.
Specifically, the VA must “consider all information and lay
and  medical  evidence  of  record,”  and,  “hen  there  is  an
approximate balance of positive and negative evidence re-
garding any issue material to the determination of a mat-
ter, the  shall give the benefit of the doubt to the claim-
ant.”  §5107(b).    This  rule  reflects  a  pro-veteran  policy
choice  that  dates  back  to  the  post-Civil  War  era.  See  50
Fed. Reg. 34454 (1985).

A  veteran  who  receives  an  adverse  decision  from  the
Board may appeal to the Veterans Court, an Article I tribu-
nal.  The  Veterans  Court  has  exclusive  jurisdiction  to  re-
view final decisions of the Board.  §7252(a).

Section 7261 defines the scope of the Veterans Court’s re-
view.  Subsection (a), which sets forth the court’s adjudica-
tory powers, is modeled after the scope-of-review provision
in the Administrative Procedure Act (APA).  See 5 U. S. C.
§706.  It empowers the Veterans Court to decide relevant
questions  of  law;  to  compel  action  unlawfully  withheld  or
unreasonably delayed; and to hold unlawful and set aside
VA findings, conclusions, rules, and regulations that are ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.  38 U. S. C. §§7261(a)(1)–(3).  Un-
like the APA, however, §7261(a) imposes a slightly different
standard of review for factual findings.  The Veterans Court
may set aside or reverse a factual finding only if “the find-
ing is clearly erroneous,” in contrast to the APA’s “substan-
tial  evidence”  standard.    §7261(a)(4);  see  Dickinson  v.
Zurko, 527 U. S. 150, 153, 162–163 (1999) (examining the
“subtle” difference between the two standards).

Subsection (b) sets forth additional requirements that the

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BUFKIN v. COLLINS

Opinion of the Court

Veterans  Court  must  follow  “n  making  the  determina-
tions  under  subsection  (a).”    §7261(b).  As  originally  en-
acted, the provision required only that the Veterans Court
“ ‘take due account of the rule of prejudicial error.’ ”  Veter-
ans’ Judicial Review Act, §301(a), 102 Stat. 4115 (now cod-
ified  at  38  U. S. C.  §7261(b)(2)).    We  have  held  that  this
statutory  command  requires  the  Veterans  Court  to  apply
the same kind of harmless-error rule that courts ordinarily
apply in civil cases.  Shinseki v. Sanders, 556 U. S. 396, 406
(2009).

In 2002, Congress amended subsection (b) to add the pro-
vision  at  issue  here.  Veterans  Benefits  Act,  §401(b),  116
Stat. 2832.  Codified at §7261(b)(1), it directs the Veterans
Court to “ ‘take due account of the ’s application of sec-
tion 5107(b) of this title.’ ”  In other words, when conducting
judicial  review  under  subsection  (a),  the  Veterans  Court
must  “take  due  account”  of  the  VA’s  application  of  the
benefit-of-the-doubt rule.

In most cases, an appeal to the Veterans Court is a vet-
eran’s final opportunity for judicial review of a benefits de-
cision.  Although veterans may appeal certain legal issues
to the United States Court of Appeals for the Federal Cir-
cuit, see §7292, that court has held that it lacks jurisdiction
to  review  most  factual  determinations,  including  whether
the VA properly applied the benefit-of-the-doubt rule in in-
dividual  cases,  see  Ferguson  v.  Principi,  273  F. 3d  1072,
1076 (2001).

B
Petitioners  are  veterans  who  applied  for  service-
connected  PTSD  disability  benefits  and  were  dissatisfied
with the VA’s resolution of their claims.

1
Petitioner  Joshua  Bufkin  served  in  the  Air  Force  from
late 2005 to early 2006.  Although Bufkin intended to join

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5

Opinion of the Court

the military police, he never received a job assignment be-
cause  he  could  not  pass  the  required  training  classes.
Bufkin blamed his poor performance on marital stress.  He
reported that his wife opposed his service and had threat-
ened to commit suicide if he stayed in the military.  Bufkin
ultimately  requested  and  obtained  a  nonprejudicial  hard-
ship discharge.

Seven years later, Bufkin sought disability benefits from
the VA.  He claimed that his military service caused several
psychiatric  conditions,  including  PTSD.  To  support  his
PTSD claim, Bufkin submitted a letter from a VA physician
who  had  recently  treated  him.  The  physician  explained
that  Bufkin’s  wife  suffered  from  depression,  and  that
Bufkin  felt  forced  to  make  a  choice  between divorcing  his
wife  or  leaving  the  military.    The  physician  diagnosed
Bufkin  with  PTSD  and  opined  that  the  primary  stressor
was the perceived threat to his wife’s life.

The  VA  regional  office  denied  Bufkin’s  claim  on  the
ground that the medical evidence was insufficient to estab-
lish a link between his symptoms and his military service.
Bufkin sought reconsideration, and the VA ordered a sec-
ond examination by a second VA physician.  The new phy-
sician determined that Bufkin did not meet the criteria for
PTSD.  He explained that the first physician was unable to
review  Bufkin’s  military  or  medical  records,  a  limitation
that may have had a “significant impact” on Bufkin’s initial
diagnosis.  App.  in  No.  2022–1089  (CA  Fed.),  pp.  29–30.
Bufkin also submitted letters from his wife and mother de-
scribing changes they observed in his personality after his
military service.

The VA regional office reviewed the new information and
reaffirmed its denial of Bufkin’s claim.  Bufkin filed a notice
of  disagreement.    He  argued  that  the  evidence  for  and
against his claim was roughly equal and that he was there-
fore entitled to “the benefit of the doubt.”  §5107(b).  Bufkin
then  underwent  a  third  VA  examination  by  yet  another

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BUFKIN v. COLLINS

Opinion of the Court

physician.  Like  the  second  physician,  this  physician  con-
cluded that Bufkin’s symptoms did not meet the criteria for
PTSD.  She also noted that Bufkin’s symptoms started one
year  after  his  discharge,  and  that  no  evidence  indicated
that  his  military  service  caused  a  disability.    The  VA  re-
gional office again reaffirmed its decision to deny benefits.
Bufkin  appealed  to  the  Board.  While  the  appeal  was
pending, he submitted a short statement from a fourth phy-
sician.  This  physician  stated  that,  in  his  opinion,  Bufkin
suffered from PTSD, but he noted other doctors might dis-
agree  with  that  diagnosis.    He  suggested  that,  at  a  mini-
mum, Bufkin suffered from severe anxiety disorder.

The  Board  concluded  that  Bufkin  did  not  suffer  from
PTSD  and  denied  his  claim.  In  a  detailed  opinion,  the
Board recounted each physician’s findings and medical con-
clusions.  The Board observed that one physician diagnosed
Bufkin with PTSD,  two physicians determined he did not
have PTSD, and one physician thought the issue was debat-
able.  After  carefully  reviewing  each  medical  opinion,  the
Board explained that it found the second physician’s report
“especially  persuasive.”  App.  to  Pet.  for  Cert.  61a.    The
Board noted that the one physician to diagnose Bufkin with
PTSD  had  not  reviewed  his  military  or  medical  records.
The Board also reviewed the letters from Bufkin’s wife and
mother but found that they lacked probative value because
neither  individual  had  relevant  medical  expertise.    When
taken as a whole, the Board explained, the evidence was not
in  approximate  balance.  Accordingly,  the  Board  deter-
mined  that  Bufkin  was  not  entitled  to  the  benefit  of  the
doubt.

2
Petitioner  Norman  Thornton  served  in  the  Army  from
1988 to 1991.  After being honorably discharged, Thornton
applied for  and received benefits for an “ ‘undiagnosed ill-

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7

Opinion of the Court

ness.’ ”  Id., at 32a.  Years later, he sought additional bene-
fits for service-connected PTSD.  The VA granted benefits
for  the  PTSD  claim,  initially  rating  his  condition  as  10%
disabling and later increasing the rating to 30%.

In  2015,  Thornton  applied  for  another  increase  to  his
PTSD  disability  rating  and  underwent  a  new  VA  medical
examination.  The physician concluded that Thornton suf-
fered some common PTSD symptoms, including depressed
mood,  anxiety,  memory  loss,  and  sleep  impairment,  but
questioned  whether  PTSD  was  the  cause  of  those  symp-
toms.  The physician did not find several of the more severe
symptoms that earlier medical examinations had revealed,
such  as  suicidal  ideation,  impaired  impulse  control,  and
panic attacks.  Nevertheless,  the regional office increased
Thornton’s PTSD disability rating to 50%.  Thornton then
sought  an  additional  increase  to  70%  and  underwent  an-
other  medical  evaluation,  but  the  regional  office  main-
tained the 50% rating.

Thornton appealed to the Board, which reviewed the evi-
dence de novo.  As in Bufkin’s case, the Board thoroughly
recounted each medical report and assessed the credibility
of each physician’s findings.  The Board ultimately declined
to increase Thornton’s 50% disability rating.1

3
Both petitioners appealed the Board’s resolution of their
PTSD claims to the Veterans Court.  They argued that the
evidence  concerning  their  diagnoses  was  in  “approximate
balance,” so they were entitled to the benefit of the doubt.
See  §5107(b).    In  both  cases,  the  Veterans  Court  upheld

——————

1 At the same time, the Board granted Thornton a “total disability” rat-
ing for his separate claim of unemployability, based on the combined ef-
fect of his service-connected PTSD and the undiagnosed illness.  App. to
Pet.  for  Cert.  86a–89a.    Thornton  currently  receives  full  benefits,  but
those benefits are subject to continual review.  He appeals only the denial
of the increase to his PTSD disability rating.

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BUFKIN v. COLLINS

Opinion of the Court

the  Board’s  decisions  on  the  ground  that  the  Board’s
approximate-balance determinations were not clearly erro-
neous.

The  petitioners  then  appealed  to  the  Federal  Circuit,
challenging  the  Veterans  Court’s  legal  interpretation  of
§7261(b)(1).  They  argued  that  the  statutory  command  to
“take due account” of the VA’s application of the benefit-of-
the-doubt  rule  requires  the  Veterans  Court  to  review  the
entire record de novo and decide for itself whether the evi-
dence is in approximate balance.

The Federal Circuit rejected this argument and affirmed
the  Veterans  Court  in  both  cases.    75  F. 4th  1368  (2023);
2023 WL 5091653 (Aug. 9, 2023).  The court held that “the
statutory command that the Veterans Court ‘take due ac-
count’ of the benefit of the doubt rule does not require the
Veterans Court to conduct any review of the benefit of the
doubt  issue  beyond  the  clear  error  review  required  by”
§7261(a).  Id., at *2.

We  granted  certiorari  to  decide  what  it  means  to  “take
due  account”  of  the  VA’s  application  of  the  benefit-of-the-
doubt rule.  601 U. S. ___ (2024).

II
A
We start, as always, with the text.  Section 7261(b)(1) pro-
vides  that  “n  making  the  determinations  under  subsec-
tion  (a),”  the  Veterans  Court  “shall”  “take  due  account  of
the ’s application of .”

The  plain  meaning  of  the  text  reveals  the  scope  of  the
Veterans  Court’s  task.   It  is  undisputed  that  the  word
“shall”  imposes  a  mandatory  command.    Shapiro  v.
McManus, 577 U. S. 39, 43 (2015).  “Shall” means “must.”
Kingdomware Technologies, Inc. v. United States, 579 U. S.
162, 171–172 (2016).  It is likewise undisputed that to “take
account of ” something means to give it attention or consid-
eration.  See  American  Heritage  Dictionary  1763  (4th  ed.

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9

Opinion of the Court

2000) (defining “take account of ” as “o take into consid-
eration”).  The word “due” qualifies the attention that the
VA must give.  “Due” means “appropriate” or “proper.”  See
4 Oxford English Dictionary 1105 (2d ed. 1989) (“Merited,
appropriate:  proper,  right”);  Black’s  Law  Dictionary  515
(7th ed. 1999) (“Just, proper, regular, and reasonable”).

Taken together, the statutory command to “take due ac-
count”  of  the  VA’s  application  of  the  benefit-of-the-doubt
rule requires the Veterans Court to give appropriate atten-
tion to the VA’s  work,  at least when the issue is properly
presented.  See id., at 516 (defining “due consideration” as
“he degree of attention properly paid to something, as the
circumstances merit”).2

The text makes clear that the appropriate attention due
is  that  which  is  required  under  subsection  (a).    Sec-
tion 7261(b)(1) states that the Veterans Court must “take
due  account”  of  the  VA’s  application  of  the  benefit-of-the-
doubt rule only “n making the determinations under sub-
section (a).”  This language highlights that taking due ac-
count is not a freestanding task but rather an aspect of ju-
dicial review under subsection (a).

The  upshot  is  straightforward.  Review  of  the  VA’s
benefit-of-the-doubt decision is just another determination
made “under subsection (a).”  §7261(b)(1).  Accordingly, the
standards of review provided in subsection (a) also govern
the Veterans Court’s review of benefit-of-the-doubt issues.
In particular, subsection (a) requires the Veterans Court to
review the VA’s conclusions of law de novo and its findings
of  fact  for  clear  error.  See  §§7261(a)(1)  and  (4).  Which
standard applies will depend on whether a veteran raises a
legal or factual objection.

——————

2 Petitioners invite us to decide whether the Veterans Court must ad-
dress the VA’s application of the benefit-of-the-doubt rule when a veteran
does not raise the issue as a ground for reversal.  Because both petition-
ers  adequately  preserved  and  raised  their  challenges  below,  we  leave
that question for another day.

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Opinion of the Court

Section  7261(b)(1)  makes  explicit  the  Veterans  Court’s
previously  implicit  duty  to  review  the  VA’s  application  of
the benefit-of-the-doubt rule, pursuant to the standards set
forth in subsection (a).  Of course, this duty predated Con-
gress’s enactment of §7261(b)(1); subsection (a) always re-
quired the Veterans Court to review all relevant findings of
fact and conclusions of law.  See §§7261(a)(1) and (4).  But,
Congress’s enactment underscores the benefit-of-the-doubt
rule’s status as a paramount consideration.

B
The  next  question,  then,  is  the  appropriate  standard  of
review for challenges to the VA’s application of the benefit-
of-the-doubt rule.  The applicable standard will vary with
the challenge, as the application of the rule has both factual
and legal components.  A veteran may challenge any aspect
of  the  VA’s  application  of  the  benefit-of-the-doubt  rule  on
appeal.

No one disputes that challenges to the VA’s legal conclu-
sions are subject to de novo review.  For example, if the vet-
eran  argues  that  the  VA  misunderstood  the  definition  of
“approximate balance,” the Veterans Court would construe
the challenge as a legal one and review it de novo.  So too if
the veteran argues that the VA gave the benefit of the doubt
to the wrong party.

These  arguments,  however,  are  not  the  typical  argu-
ments a veteran raises on appeal.  In mine-run cases, in-
cluding the two before us, a veteran challenges the VA’s de-
termination  that  the  evidence  on  a  particular  material
issue is not in approximate balance.

Petitioners assert that the approximate-balance determi-
nation is a legal inquiry subject to de novo review.  The Gov-
ernment counters that the determination is a factual find-
ing,  or  at  least  a  mixed  question  that  is  predominantly
factual and reviewed for clear error.  After closely examin-
ing  the  way  in  which  the  VA  conducts  the  approximate-

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11

Opinion of the Court

balance inquiry, we conclude it is a predominantly factual
question and thus subject to clear-error review.

The  approximate-balance  determination  involves  two
steps.  First, the VA reviews each item of evidence in the
record and assigns weight to it.  Both sides agree that this
aspect of the VA’s analysis is factfinding reviewed only for
clear error.  Second, the VA assesses the weight of the evi-
dence  as  a  whole,  deciding  whether  “there  is  an  approxi-
mate balance of positive and negative evidence” on any ma-
terial issue.  §5107(b).  The VA gives the benefit of the doubt
to the veteran only after determining that the positive evi-
dence and negative evidence on a material issue are in ap-
proximate balance.  Otherwise, the VA simply resolves the
issue  in  favor  of  the  party  with  the  more  persuasive  evi-
dence.

The  second  step—deciding  whether  the  evidence  as  a
whole is approximately balanced—has both legal and fac-
tual components.  The task is partly factual because it in-
volves marshaling and weighing evidence.  See U. S. Bank
N. A.  v.  Village  at  Lakeridge,  LLC,  583  U. S.  387,  396
(2018).  The  VA  must  categorize  the  evidence  based  on
whether it supports or undermines the veteran’s claim.  Af-
ter doing so, the VA compares the relative strength and per-
suasiveness of the evidence on each side.  Assigning weight
to  evidence—whether  individual  pieces  of  evidence  or  col-
lections of it—is an inherently factual task.  See ibid.  But,
the VA’s decision also involves a legal determination.  After
assessing the weight of the assorted evidence, the VA must
decide  whether  the  evidence  is  in  “approximate  balance.”
See  §5107(b).    In  other  words,  the  VA  must  determine
whether  the  evidence  satisfies  a  legal  standard.    Because
the VA’s approximate-balance determination involves both
legal and factual work, it is at most a mixed question, not a

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BUFKIN v. COLLINS

Opinion of the Court

purely legal one.3

The appropriate standard of review for a mixed question
depends “on whether answering it entails primarily legal or
factual work.”  U. S. Bank, 583 U. S., at 396.  Some mixed
questions require a court to “expound on the law” by “am-
plifying  or  elaborating  on  a  broad  legal  standard.”  Ibid.
When applying the law involves developing legal principles
for use in future cases, appellate courts typically review the
decision  de  novo.  Ibid.    Other  mixed  questions  require
courts to resolve “case-specific factual issues.”  Ibid.  When
the tribunal below is “immerse” in facts and compelled to
“marshal and weigh evidence” and “make credibility judg-
ments,” the appellate court “should usually review a deci-
sion with deference.”  Ibid.

Reviewing  a  determination  whether  record  evidence  is
approximately  balanced  is  “about  as  factual  sounding”  as
any question gets.  Id., at 397.  Consider Bufkin’s case.  To
decide  whether  Bufkin  was  entitled  to  the  benefit  of  the
doubt,  the  Board  reviewed  four  medical  opinions  and  two
letters  from  Bufkin’s  family  members.    After  assigning
weight  to  each  item,  the  Board  assessed  whether  the  evi-
dence was roughly equal.  To make that determination, the
Board had to consider evidence of Bufkin’s symptoms and
their  causes,  while  assessing  the  credibility  of  the  physi-
cians who treated him.  Thornton’s case is no different.  The
Board  assessed  the  weight  of  his  symptoms,  the  degree
to  which  they  affected  his  day-to-day  life,  and  the  credi-
bility  of  each  physician.    These  cases  illustrate  that  the
approximate-balance  determination  necessarily  immerses

——————

3 We need not decide whether the VA’s approximate-balance determi-
nation is best characterized as a mixed question or a factual one.  See
Alexander v. South Carolina State Conference of the NAACP, 602 U. S. 1,
18–19 (2024) (observing that “a finding of fact” may involve application
of a “standard of proof ” with a “substantial legal component”).  Whether
the determination is mixed or factual, clear-error review is appropriate
because it is at least predominantly factual.

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13

Opinion of the Court

the  Board  “in  case-specific  factual  issues.”    Id.,  at  396.
When that is so—that is, when the initial decisionmaker is
“marshal and weigh evidence” and “mak cred-
ibility judgments”—its work is fact intensive, and its deter-
minations should be reviewed with deference.  Ibid.

C
Petitioners and the dissent offer various paths to a differ-

ent result.  But, their arguments are not persuasive.

First,  petitioners  urge  us  to  hold  that  with  one  modest
phrase, “take due account,” Congress imposed a new stand-
ard of review for challenges to the VA’s application of the
benefit-of-the-doubt rule.  Before the Federal Circuit, peti-
tioners argued that §7261(b)(1) established a de novo stand-
ard of review.  They hesitate to call the standard “de novo
review”  before  this  Court,  instead  describing  it  as  “APA-
plus.”  Brief for Petitioners 25, 41–42.

However labeled, the directive to “take due account” does
not  do  the  work  that  petitioners  envision.    Had  Congress
intended to impose a new standard of review for challenges
to  the  VA’s  application  of  the  benefit-of-the-doubt  rule,  it
would  have  clearly  named  a  standard—just  as  it  did  in
§7261(a).  But, as we have explained, Congress chose not to
announce any new standard in §7261(b)(1).  It instead in-
corporated the pre-existing standards of review set forth in
subsection (a).

Petitioners  contend,  in  the  alternative,  that  even  if
§7261(b)(1)  incorporates  the  standards  of  review  in
§7261(a), the VA’s approximate-balance determination is a
legal  question  subject  to  de  novo  review  under  §7261(a).
The dissent adopts a similar view, arguing that the approx-
imate-balance  determination  is  a  predominantly  legal
mixed question.  Post, at 12–16 (opinion of JACKSON, J.).

The  de  novo  standard  applies,  they  say,  because  the
approximate-balance  determination  resembles  other  legal
or  predominantly  legal  questions  that  courts  review  de

14

BUFKIN v. COLLINS

Opinion of the Court

novo.  They  point  to  judicial  review  of  a  court’s  probable-
cause determination as one such analogue.  Post, at 14–15.
Probable  cause  is  the  standard  by  which  a  court  assesses
whether a police officer’s search or seizure was permissible
under  the  Fourth  Amendment.    For  example,  “probable
cause to search . . . exist where the known facts and cir-
cumstances are sufficient to warrant a man of reasonable
prudence  in  the  belief  that  contraband  or  evidence  of  a
crime  will  be  found.”    Ornelas  v.  United  States,  517  U. S.
690, 696 (1996).  We have held that this inquiry is a mixed
question that courts review de novo.  See id., at 699.

Two features of the probable-cause determination distin-
guish it from the approximate-balance determination, how-
ever, and underscore why courts review it de novo.  First,
because  probable  cause  is  a  constitutional  standard,  we
start with a strong presumption that determinations under
that  standard  are  subject  to  de  novo  review,  even  if  they
require  courts  to  “plung  into  a  factual  record.”  U. S.
Bank, 583 U. S., at 396, n. 4.  Second, probable cause at bot-
tom poses a question that requires substantial “legal work.”
Id., at 398.  Because probable cause asks whether the “of-
ficer’s understanding of the facts and his understanding of
the  relevant  law”  was  “reasonable,”  Heien  v.  North  Caro-
lina, 574 U. S. 54, 61–64 (2014), it requires an objective, le-
gally  grounded  inquiry  as  to  what  a  hypothetical  person
could have found, see Kentucky v. King, 563 U. S. 452, 464
(2011).  The answer to how a hypothetical person would act
is, by its nature, one that courts refine over time, building
out principles that “acquire content only through applica-
tion.”  Ornelas, 517 U. S., at 697.  De novo review is there-
fore  essential  so  that  courts  can  ensure  “unif  prece-
dent”  that  will  “provid  law  enforcement  officers  with  a
defined set of rules which, in most instances, makes it pos-
sible  to  reach  a  correct  determination  beforehand  as  to
whether an invasion of privacy is justified.”  Ibid. (internal
quotation marks omitted).

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15

Opinion of the Court

The  VA’s  approximate-balance  determination  differs  on
both  counts.  First,  the  standard  is  a  creature  of  statute.
Because it does not dwell “n the constitutional realm,” it
is  not  entitled  to  the  presumption  of  de  novo  review  that
applies  to  probable  cause.    U. S.  Bank,  583  U. S.,  at  396,
n. 4.  Second,  the  approximate-balance  inquiry  does  not
have a comparable legal component.  Instead, as these cases
exemplify, that inquiry tends to be case specific and fact in-
tensive, with courts evaluating the weight of the evidence
for  and  against  a  particular  veteran’s  claim.    To  decide
Bufkin’s claim, for example, the VA reviewed a panoply of
medical  and  lay  evidence,  and  Bufkin’s  central  argument
before the Veterans Court was that the overall balance of
this evidence was closer than the VA thought.  Thornton’s
claim  similarly  presented  case-specific,  fact-bound  issues
about the existence and severity of symptoms.  Resolution
of these claims is unlikely to generate guidance for the VA
or future courts in the way that probable-cause precedents
do for police and the courts.
  The VA’s approximate-balance determination is likewise
distinct from a court’s conclusion that evidence is sufficient
to  support  a  criminal  conviction,  a  conclusion  that  courts
review  de novo.  See  Jackson  v.  Virginia,  443  U. S.  307,
318–319  (1979).  While  the  sufficiency-of-the-evidence  in-
quiry  necessarily  turns  on  facts,  the  reviewing  court  does
not decide for itself whether the evidence establishes guilt
beyond  a  reasonable  doubt.    Instead,  it  construes  all  evi-
dence and makes all reasonable inferences in favor of the
prosecution,  and  asks  whether  “any  rational  trier  of  fact
could have found the essential elements of the crime beyond
a reasonable doubt.”  Id., at 319.  Courts therefore conduct
their review through a legal lens, applying a hypothetical,
objective standard and putting a thumb on the scale in fa-
vor of the prevailing party—the prosecution.  No one—peti-
tioners  and  the  dissent  included—wants  the  Veterans
Court to do that.  Instead, petitioners and the dissent would

16

BUFKIN v. COLLINS

Opinion of the Court

have the Veterans Court “weigh the evidence” in the first
instance and then make “inferences from basic facts to ulti-
mate  facts”—precisely  what  a  court  may  not  do  on  suffi-
ciency review.  Ibid.

Petitioners and the dissent also rely heavily on the asser-
tion  that  our  reading  of  §7261(b)(1)  renders  the  provision
superfluous.  Post, at 9–11.  That objection is a serious one.
“We are reluctant to treat statutory terms as surplusage in
any setting.”  TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001)
(internal  quotation  marks  omitted).    Our  reluctance  in-
creases when Congress amends a statute, as we ordinarily
presume  that  when  Congress  does  so,  “ ‘it  intends  its
amendment  to  have  real  and  substantial  effect.’ ”    Intel
Corp. v. Advanced Micro Devices, Inc., 542 U. S. 241, 258–
259 (2004).

But,  our  reading  of  §7261(b)(1)  gives  that  provision  a
function, even if it might involve some redundancy.  As we
have explained, Congress’s amendment makes express the
Veterans Court’s obligation to review challenges to the VA’s
application of the benefit-of-the-doubt rule according to the
standards set forth in §7261(a).  Moreover, as the dissent
notes, we have left open the possibility that Congress’s en-
actment requires the Veterans Court to review the VA’s ap-
plication of the benefit-of-the-doubt rule even if the veteran
fails to present that issue on appeal.  See n. 2, supra; post,
at  10.  If  the  Court  were  to  decide  that  Congress’s  enact-
ment  changed  the  party-presentation  requirement,  then
the enactment of §7261(b)(1) would serve an additional in-
dependent function.

Notably, the dissent fails to offer a reading of the text that
avoids  redundancy.  According  to  the  dissent,  the  VA’s
approximate-balance determination is a predominantly le-
gal question subject to de novo review.  Post, at 12–16.  But,
if  the  dissent  were  correct,  then  the  approximate-balance
determination  would  have  been  subject  to  de  novo  review
even  before  the  enactment  of  §7261(b)(1).  All  agree  that

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17

Opinion of the Court

under  §7261(a),  which  predated  Congress’s  enactment  of
§7261(b)(1), the Veterans Court is required to review ques-
tions of law de novo.  Thus, under the dissent’s interpreta-
tion—no  less  than  ours—the  enactment  of  §7261(b)(1)
merely underscores a pre-existing duty.  The canon against
surplusage can be meaningful when a competing interpre-
tation would avoid superfluity.  Microsoft Corp. v. i4i L. P.,
564  U. S.  91,  106  (2011).    But,  when  both  interpretations
involve the same redundancy, the canon against surplusage
simply does not apply.  See Marx v. General Revenue Corp.,
568  U. S.  371,  385  (2013)  (declining  to  apply  the  canon
against  surplusage  when  no  interpretation  would  give  ef-
fect to every word).

In any event, “ometimes the better overall reading of
the statute contains some redundancy.”  Rimini Street, Inc.
v. Oracle USA, Inc., 586 U. S. 334, 346 (2019).  Here, the
text  leaves  no  doubt  that  the  Federal  Circuit’s  reading  of
the statute is the better one.

*

*

*
Section 7261(b)(1) does not establish a new standard of
review for challenges to the VA’s application of the benefit-
of-the-doubt rule.  Instead, it requires the Veterans Court
to apply the appropriate standard of review under §7261(a).
Because the VA’s approximate-balance determination is a
predominantly  factual  question,  the  Veterans  Court  re-
views it for clear error.  §7261(a)(4).

The judgment of the Court of Appeals is affirmed.

III

It is so ordered.

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1

JACKSON, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 23–713
_________________

JOSHUA E. BUFKIN, PETITIONER v. DOUGLAS A.
COLLINS, SECRETARY OF VETERANS
AFFAIRS

NORMAN F. THORNTON, PETITIONER v. DOUGLAS
A. COLLINS, SECRETARY OF VETERANS
AFFAIRS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT



 JUSTICE  JACKSON,  with  whom  JUSTICE  GORSUCH  joins,

dissenting.

The Court draws two conclusions from today’s evaluation
of  Congress’s  “take  due  account”  admonition.    See  38
U. S. C. §7261(b)(1).  First, it holds that when the United
States  Court  of  Appeals  for  Veterans  Claims  (Veterans
Court) reviews the Department of Veterans Affairs’ (VA’s)
application of the “benefit-of-the-doubt” rule, that appellate
tribunal must use the “same” standards of review that ap-
ply to its assessment of any other VA claims determination.
Ante,  at  1.
  Second,  the  Court  concludes  that  whether
evidence  is  in  “approximate  balance”  for  purposes  of  the
benefit-of-the-doubt rule is a “predominantly factual deter-
mination” to be reviewed only for clear error.  Ante, at 2.

The  majority  is  wrong  in  both  respects.    Nothing  about
the  text,  context,  or  drafting  history  of  subsection  (b)(1)
demonstrates that “take due account” actually means “pro-
ceed as normal.”  Reading the provision in that fashion, as
the majority does, makes little sense.  That interpretation

2

BUFKIN v. COLLINS

JACKSON, J., dissenting

is also inconsistent with how we have treated identical lan-
guage elsewhere in this same statute and renders meaning-
less the “take due account” command that Congress specif-
ically amended §7261(b) to insert.

The majority’s clear-error conclusion fares no better, in-
sofar as its reasoning ignores what appellate courts do and
what we have consistently said about substantially similar
circumstances.    That  is,  even  if  the  majority  were  correct
that subsection (b)(1) instructs the Veterans Court to carry
on applying the usual standards, clear-error review would
not  be  appropriate  because  whether  the  VA  properly  ap-
plied the benefit-of-the-doubt rule does not present a ques-
tion  of  fact.  The  VA’s  benefit-of-the-doubt  determination
poses, at most, a mixed question of law and fact—and one
that  is  substantively  indistinguishable  from  the  kinds  of
mixed questions that this Court has long said are subject to
de novo review on appeal.

In short, the Court today concludes that Congress meant
nothing  when  it  inserted  subsection  (b)(1)  in  response  to
concerns  that  the  Veterans  Court  was  improperly  rub-
berstamping the VA’s benefit-of-the-doubt determinations,
and also that the Veterans Court is not obliged to do any-
thing  more  than  defer  to  those  agency  decisions  notwith-
standing Congress’s “take due account” direction.  I respect-
fully dissent.

I
Under the time-honored benefit-of-the-doubt rule, veter-
ans  asserting  claims  for  service-connected  disabilities  are
entitled to have any reasonable doubt on a material issue
resolved in their favor.  Congress codified this rule in 1988:
Section 5107(b) of Title 38 states unequivocally that the VA
must “give the benefit of the doubt to the claimant” when-
ever “there is an approximate balance of positive and nega-
tive evidence regarding any issue material to the” veteran’s
benefits claim.  This generous standard of proof honors the

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3

JACKSON, J., dissenting

sacrifices of those who have served in the Armed Forces.

Recognizing the weighty interests at stake in cases that
involve  benefits  for  veterans,  Congress’s  1988  legislation
also  established  judicial  review  of  the  VA’s  benefits  deci-
sions by the Veterans Court, a specialized Article I tribunal.
Section 7261(a) lays out in detail the authority that the Vet-
erans Court has been given.  As relevant here, the Veterans
Court is authorized to (1) “decide all relevant questions of
law”;  (2)  “compel  action  of  the  Secretary  unlawfully  with-
held or unreasonably delayed”; and (3) “hold unlawful and
set aside” certain VA decisions.  §§7261(a)(1)–(3).  Notably,
clause (4) of §7261(a) states that “in the case of a finding of
material  fact  adverse  to  the  claimant  made  in  reaching  a
decision in a case before the  with respect to benefits,”
the  Veterans  Court  shall  “hold  unlawful  and  set  aside  or
reverse  such  finding  if  the  finding  is  clearly  erroneous.”
§7261(a)(4).

For present purposes, all parties agree that §7261(a) has
always  authorized  the  Veterans  Court  to  review  the  VA’s
application of the benefit-of-the-doubt rule.  But judicial re-
view  of  that  issue  proved  illusory  from  the  start,  because
the Veterans Court historically applied a deferential stand-
ard of review for assessing the VA’s benefit-of-the-doubt de-
terminations.  See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49,
57–58  (1990);  Wensch  v.  Principi,  15  Vet.  App.  362,  367
(2001).  As a result, veterans groups routinely complained
to Congress that judicial review by the Veterans Court was
inappropriately  deferential.  See,  e.g.,  Hearing  before  the
Senate  Committee  on  Veterans’  Affairs,  107th  Cong.,  2d
Sess.,  47  (2002)  (statement  of  the  legislative  director  of  a
veterans group); see also Brief for Federal Circuit Bar As-
sociation as Amicus Curiae 11–14.

Congress responded in 2002, when it amended §7261(b)
to specifically require the Veterans Court to “take due ac-
count  of ”  the  VA’s  application  of  the  benefit-of-the-doubt
rule.  §7261(b)(1).  In its entirety, the amended subsection

4

BUFKIN v. COLLINS

JACKSON, J., dissenting

(b) states:

“(b) In making the determinations under subsection
(a), the  Court shall review the record of pro-
ceedings before the Secretary and the Board of Veter-
ans’ Appeals . . . and shall—

“(1) take due account of the Secretary’s application of

section 5107(b) of this title; and

“(2) take due account of the rule of prejudicial error.”

§7261(b).1

The  plain  text  of  §7261(b)(1)  thus  requires  the  Veterans
Court to “take due account” of the VA’s obligations under
the  benefit-of-the-doubt  rule  when  it  reviews  VA  benefits
determinations under §7261(a).

II

The dispute before us concerns the meaning of subsection
(b)(1)’s “take due account” clause.  The majority and I agree
that subsection (b)(1) imposes a “statutory command” that
the Veterans Court “give appropriate attention to the VA’s
work” related to its application of the benefit-of-the-doubt
rule.  Ante, at 9.  But the majority concludes that the “ap-
propriate attention due is that which is required under sub-
section  (a).”  Ibid.  In  my  view,  that  holding  is  unmoored
from subsection (b)(1)’s text, ignores §7261’s overall struc-
ture and drafting history, and renders entirely superfluous
Congress’s requirement that the Veterans Court “take due
account” of the application of the benefit-of-the-doubt rule.
The better reading of the statute recognizes that subsection
(b)(1)  requires  the  Veterans  Court  to  determine,  without

——————

1 Subsection (b)(1) cross references §5107(b), which (as explained above
and bears repeating) codifies the benefit-of-the-doubt rule: “When there
is an approximate balance of positive and negative evidence regarding
any issue material to the determination of a matter, the Secretary shall
give the benefit of the doubt to the claimant.”  §5107(b).  The reference
to “the Secretary” in §5107(b) and §7261(b)(1) includes the VA’s regional
offices and the Board of Veterans’ Appeals.  See ante, at 2–3.

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5

JACKSON, J., dissenting

deference, whether the VA properly applied the benefit-of-
the-doubt rule.

A
The  primary  textual  pillar  of  the  majority’s  conclusion
that  “eview  of  the  VA’s  benefit-of-the-doubt  decision  is
just another determination made ‘under subsection (a)’ ” is
its observation  that subsection (b)(1)’s review applies only
“ ‘n  making  the  determinations  under  subsection  (a).’ ”
Ante,  at  9  (quoting  §7261(b)(1)).    Based  on  that  prefatory
language,  the  majority  reasons  that  subsection  (b)(1)  is
merely an “aspect of ” the review that the Veterans Court
performs under subsection (a), such that the “standards of
review provided in subsection (a) also govern the Veterans
Court’s review of benefit-of-the-doubt issues.”  Ante, at 9.

But the fact that the Veterans Court must apply subsec-
tion  (b)(1)  “n  making  the  determinations  under  subsec-
tion  (a)”  does  not  justify  collapsing  these  two  provisions.
The  word  “in,”  when  paired  with  a  gerund—here,  “mak-
ing”—is generally “equivalent in sense to a temporal clause
introduced by when, while, if,  in the event of.”  7 Oxford
English Dictionary 760 (2d ed. 1989) (emphasis in original).
The “in making” clause in subsection (b) thus merely pro-
vides that when the Veterans Court makes one of the deter-
minations authorized by subsection (a), it must also satisfy
its duty to “take due account of ” the VA’s application of the
benefit-of-the-doubt rule.  In other words, the “in making”
clause  the  majority  seizes  upon  to  justify  its  same-
standards  holding  simply  establishes  that  review  under
subsection (b)(1) occurs alongside review under subsection
(a), not that they are the same thing.

Interpreting subsection (b)(1) to require a separate, con-
current review of the VA’s compliance with the benefit-of-
the-doubt rule is consistent with how this Court has inter-
preted  subsection  (b)(1)’s  parallel  provision—subsection

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JACKSON, J., dissenting

(b)(2).  Subsection (b)(2) directs that, “n making the de-
terminations  under  subsection  (a),”  the  Veterans  Court
shall  “take  due  account  of  the  rule  of  prejudicial  error.”
§7261(b)(2).  In Shinseki v. Sanders, 556 U. S. 396 (2009),
we held that subsection (b)(2) “requires the Veterans Court
to apply the same kind of ‘harmless-error’ rule that courts
ordinarily apply in civil cases,” id., at 406.  We did not sug-
gest—much less hold—that subsection (a)’s standards of re-
view governed subsection (b)(2)’s “take due account” clause.
To  the  contrary,  we  explained  that  the  Veterans  Court  is
not  prevented  from  “directly  asking  the  harmless-error
question”  and  “resting  its  conclusion  on  the  facts  and  cir-
cumstances of the particular case.”  Id., at 408.

Thus,  there  is  no  dispute  that,  under  subsection  (b)(2),
the Veterans Court analyzes whether any error was harm-
less de novo, without applying the standards of review pre-
scribed  by  subsection  (a).    And  because  subsection  (a)’s
standards  do  not  apply  when  the  Veterans  Court  “take
due account of the rule of prejudicial error” under subsec-
tion (b)(2), it is oddly discordant for the majority to conclude
that  those  standards  do  apply  when  the  Veterans  Court
“take due account of the Secretary’s application of ” the
benefit-of-the-doubt rule.  See FCC v. AT&T Inc., 562 U. S.
397, 408 (2011) (“ ‘dentical words and phrases within the
same  statute  should  normally  be  given  the  same  mean-
ing’ ”).

An understanding of how subsection (b)(2)’s “take due ac-
count” language functions in practice further clarifies sub-
section (b)(1), as subsection (b)(2) existed prior to subsection
(b)(1)  and  plainly  served  as  its  model.  The  majority  does
not dispute that the VA’s appellate tribunal, the Board of
Veterans’ Appeals, sometimes applies the rule of prejudicial
error in the first instance.  See, e.g., Medrano v. Nicholson,
21 Vet. App. 165, 170 (2007).2  If the Board determines that

——————

2 This happens often in the context of notice errors.  Consistent with

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7

JACKSON, J., dissenting

an error was harmless and denies a veteran’s claim, then
per subsection (b)(2), the Veterans Court reviews the record
for prejudicial error and does so “de novo, in other words,
without any deference to the Board,” before affirming.  Id.,
at 171.  Subsection (b)(1) works in precisely the same way:
If the Veterans Court is inclined to affirm the VA’s denial
of  benefits,  subsection  (b)(1)  requires  it  to  first  confirm
de novo that the benefit-of-the-doubt rule was properly ap-
plied.

B
Nor does the drafting  history of the relevant provisions
support  the  majority’s  contention  that  subsection  (b)(1)  is
an “aspect” of subsection (a), or that subsection (a)(4) sub-
stantively limits the review that subsection (b)(1) requires.
In  fact,  the  historical  account  suggests  the  opposite.    The
initial Senate bill amended subsection (a)(4)—rather than
subsection  (b)—to  command  that  the  Veterans  Court
“tak into account” the VA’s application of the benefit-of-
the-doubt  rule.    S. Rep.  No.  107–234,  p.  40  (2002)  (italics
deleted).  That  bill  also  proposed  two  other  relevant
changes: It authorized the Veterans Court to “reverse” the
VA’s factual findings rather than remand them, and it elim-
inated  the  “clearly  erroneous”  standard  of  review.    Ibid.
(italics deleted).  Accordingly, under the Senate’s bill, sub-
section (a)(4) would have authorized the Veterans Court to
“set aside or reverse” any factual finding of the VA that was
“unsupported by substantial evidence of record, taking into

——————
the pro-claimant nature of the veterans-disability system, the VA has a
statutory obligation to notify veterans of certain information.  Shinseki
v. Sanders, 556 U. S. 396, 400 (2009) (citing 38 U. S. C. §5103(a)).  If the
VA  breaches  that  duty,  the  Board  may  nonetheless  deny  a  veteran’s
claim if it determines that the notice error was harmless.  The Veterans
Court reviews any such harmlessness determination de novo.  See, e.g.,
Medrano,  21  Vet.  App.,  at  170,  173;  Lowery  v.  McDonough,  2024  WL
3949253, *4, *5–*6 (Vet. App., Aug. 27, 2024) (unpublished); Weaver v.
Shinseki, 2011 WL 2745773, *1 (Vet. App., July 13, 2011) (unpublished).

8

BUFKIN v. COLLINS

JACKSON, J., dissenting

account  the  Secretary’s  application  of ”  the  benefit-of-the-
doubt rule.  Ibid. (italics deleted).

Had Congress adopted this proposal, the majority’s con-
flation of subsections (a) and (b)(1) might stand on firmer
ground.  But  Congress  plainly  rejected  that  approach.    It
instead amended subsection (a)(4) only to empower the Vet-
erans  Court  to  reverse  certain  factual  findings  (i.e.,  those
that are material and adverse to the claimant), and neither
modified  subsection  (a)(4)’s  clear-error  standard  nor  in-
serted  a  requirement  that  the  Veterans  Court  review  the
VA’s  application  of  the  benefit-of-the-doubt  rule  into  that
provision.  §401, 116 Stat. 2832.  At the end of the day, then,
instead  of  incorporating  a  benefit-of-the-doubt-rule  re-
minder into subsection (a)(4), Congress crafted an entirely
new statutory provision—subsection (b)(1)—to address ju-
dicial  review  of  the  VA’s  application  of  the  benefit-of-the-
doubt rule.  Ibid.

Recognizing  that  review  under  subsection  (b)(1)  is  dis-
tinct  from  review  under  subsection  (a)(4)  respects  Con-
gress’s choice to separate those two provisions.  It also com-
ports  with  subsection  (b)(1)’s  language  and  the  statute’s
overall  design.    No  one  disputes  that  Congress  sought  to
subject the VA’s benefit-of-the-doubt decisions to increased
judicial scrutiny while otherwise preserving the VA’s not-
clearly-erroneous  factual  findings.  Reading  subsection
(b)(1) to be such a congressional mandate furthers that ob-
jective,  while  the  majority’s  conclusion  that  subsection
(b)(1)  implicitly  incorporates  subsection  (a)(4)’s  limited
clear-error standard undermines it.

C

The usual indicators of statutory meaning thus confirm
that subsection (b)(1) was meant to have bite.  But the ma-
jority’s reading renders it toothless.  According to the ma-
jority, subsection (b)(1) does not impose any new obligation

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9

JACKSON, J., dissenting

on the Veterans Court; instead, that provision merely “un-
derscores” the importance of §5107(b)’s benefit-of-the-doubt
rule.  Ante, at 10.  At oral argument, the Government put
the  matter  even  more  bluntly,  arguing  that  subsection
(b)(1) is an “exclamation point” that does “duplicate work”
and is ultimately “redundant.”  Tr. of Oral Arg. 42, 44.  This
interpretation, which the majority adopts, violates the “car-
dinal principle of statutory interpretation” that courts ordi-
narily “ ‘ “give effect, if possible, to every clause and word of
a statute.” ’ ”  Williams v. Taylor, 529 U. S. 362, 404 (2000)
(quoting United States v. Menasche, 348 U. S. 528, 538–539
(1955)).

The  majority  acknowledges  that  the  surplusage  argu-
ment is “a serious one” and that its interpretation “might
involve some redundancy.”  Ante, at 16.  Still, the majority
maintains that subsection (b)(1) has a “function” even if it
performs zero independent work.  Ibid.  That is because, as
the majority sees it, subsection (b)(1) makes “express” the
Veterans Court’s duty to hear challenges to the VA’s appli-
cation of the benefit-of-the-doubt rule under subsection (a),
and  may  even  require  the  Veterans  Court  to  do  so
sua sponte.  Ibid.  But  the  majority  cannot  overcome  the
surplusage  problem  simply  by  asserting  that  subsection
(b)(1) emphasizes or clarifies a pre-existing duty.  To state
the obvious, “most superfluous language” can be justified as
providing  “clarity.”  NLRB  v.  SW  General,  Inc.,  580  U. S.
288, 304 (2017).  Perhaps for this reason, the majority does
not  identify  any  other  case  in  which  this  Court  held  that
Congress passed an amendment with no substantive effect.
Moreover, the majority does not and cannot explain why
any  such  expression  of  the  Veterans  Court’s  duties  was
needed—much less why Congress would go out of its way to
amend  the  statute  to  underscore  an  existing  obligation.
Subsection (a) covers the waterfront of possible exercises of
judicial  authority  and  has  always  required  the  Veterans
Court to consider any argument “presented” by a veteran.

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JACKSON, J., dissenting

Subsection (a) cannot be reasonably read to exclude consid-
eration  of  a  veteran’s  claim  that  the  VA  misapplied  the
benefit-of-the-doubt rule.  And no one actually thought this;
indeed, prior to Congress’s enactment of subsection (b)(1),
the Veterans Court regularly considered challenges to the
VA’s application of the benefit-of-the-doubt rule—it just did
so deferentially.  See supra, at 3–4.

Thus,  the  problem  that  Congress  enacted  subsection
(b)(1) to address was not that the Veterans Court seemed to
have  limited  authority  under  subsection  (a).  Nor  was  it
that the Veterans Court was somehow unaware of its duty
to  review  the  VA’s  application  of  the  benefit-of-the  doubt
rule upon request.  Rather, as I have explained, Congress
enacted  subsection  (b)(1)  after  veterans  service  organiza-
tions brought to its attention how the Veterans Court was
performing that review—i.e., it was giving too much defer-
ence to the VA’s benefit-of-the-doubt determinations.  Ibid.
Congress’s indisputable focus was on the improper degree
of deference the Veterans Court was affording to the VA’s
determinations, a target that the majority’s reading misses
completely.  Nor  is  the  majority’s  surplusage  problem
solved  by  the  “possibility”  that  subsection  (b)(1)  requires
sua sponte review of the VA’s benefit-of-the-doubt determi-
nations.  Ante, at 16.  Even assuming that subsection (b)(1)
seeks to effect that change, sua sponte review would make
no difference unless the Veterans Court proceeds nondefer-
entially.  A  rubberstamp  applied  to  every  case  remains  a
rubberstamp.

Finally, the majority maintains that if Congress had in-
tended for subsection (b)(1) to do anything other than un-
derscore the pre-existing duty to consider challenges to the
VA’s  benefit-of-the-doubt  determinations,  it  would  have
more clearly said so.  Ante, at 13.  That gets things exactly
backwards.  Ordinarily, when Congress amends a statute,
“ ‘ “we presume it intends its amendment to have real and
substantial  effect.” ’ ”  Husky  Int’l  Electronics,  Inc. v.  Ritz,

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11

JACKSON, J., dissenting

578 U. S. 355, 359 (2016) (quoting United States v. Quality
Stores,  Inc.,  572  U. S.  141,  148  (2014)).    The  majority  in-
stead  presumes  that  Congress  intended  to  enact  a  do-
nothing amendment.  But if Congress had wanted to main-
tain the status quo, why enact subsection (b)(1) at all?  The
presumption  is,  and  should  be,  that  Congress  expects  a
change when it goes through the trouble of amending a stat-
ute.  And, here, the majority’s reasoning has plainly failed
to overcome that presumption.

D

The  veterans  canon  resolves  whatever  lingering  doubt
might remain about the proper interpretation of subsection
(b)(1).  We have “long applied ‘the canon that provisions for
benefits  to members  of  the  Armed  Services  are  to  be  con-
strued in the beneficiaries’ favor.’ ”  Henderson v. Shinseki,
562 U. S. 428, 441 (2011) (quoting King v. St. Vincent’s Hos-
pital, 502 U. S. 215, 220–221, n. 9 (1991)).  Likewise, under
the veterans canon, “interpretive doubt is to be resolved in
the veteran’s favor.”  Brown v. Gardner, 513 U. S. 115, 118
(1994).

The  veterans  canon  strongly  supports  interpreting  sub-
section  (b)(1)  to  represent  more  than  Congress’s  grandilo-
quence.  Requiring subsection (b)(1) to affect the judicial re-
view  the  Veterans  Court  provides  aligns  with  the
significance  of  the  benefit-of-the-doubt  rule  and  mitigates
the unique problems that arise in veterans’ cases, including
that  veterans  are  “often  unrepresented”  before  the  VA.
Sanders, 556 U. S., at 412.  Veterans’ claims also often in-
volve  a  considerable  time  lag  that  produces  problems  of
proof, since no statute of limitations applies to such claims.
D. Nagin, The Credibility Trap: Notes on a VA Evidentiary
Standard, 45 U. Memphis L. Rev. 887, 894, 898 (2015).  An
appeal to the Veterans Court is generally a veteran’s “final
opportunity” to correct the VA’s mistakes.  Ante, at 4.  Non-

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BUFKIN v. COLLINS

JACKSON, J., dissenting

deferential review of the VA’s benefit-of-the-doubt determi-
nations plainly minimizes the risk that veterans with bor-
derline claims will be denied benefits to which they are en-
titled.

Therefore,  the  veterans  canon  “garnish  an  already
solid argument” based on the statute’s text and structure.
Arellano  v.  McDonough,  598  U. S.  1,  14  (2023).    Reading
subsection  (b)(1)  as  a  standalone  command  that  requires
the  Veterans  Court  to  review  the  VA’s  application  of  the
benefit-of-the-doubt rule nondeferentially obviously favors
veterans more than an interpretation that reduces the pro-
vision to an exclamation point.

III
The  majority  does  not  stop  at  the  mistaken  conclusion
that Congress enacted subsection (b)(1) for no reason other
than  to  reiterate  the  Veterans  Court’s  pre-existing  statu-
tory duties.  It also proceeds to analyze how a challenge to
the  VA’s  application  of  the  benefit-of-the-doubt  rule  fares
when filtered through the authority conferred to the Veter-
ans  Court  in  subsection  (a).  In  this  regard,  the  majority
reasons  that  part—but  not  all—of  the  VA’s  application  of
the benefit-of-the-doubt rule must be reviewed for clear er-
ror.  Ante, at 10.  But in my view, the Court mischaracter-
izes the “approximate balance” assessment under §5107(b),
which is the part of the analysis that is at issue here.  The
majority  maintains  that  that  aspect  of  the  benefit-of-the-
doubt rule involves the type of predominately factual find-
ing that appellate courts ordinarily review with deference.
Ante, at 12–13.  Stated simply, such is not the case.

A

To understand the majority’s mistake, one must first be
clear  eyed  about  the  two  steps  that  are  necessary  for
the  Veterans  Court  to  review  the  VA’s  application  of  the

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13

JACKSON, J., dissenting

benefit-of-the-doubt rule.  First, the Veterans Court identi-
fies and reviews the VA’s relevant factual findings concern-
ing the evidence presented.  Then, the Veterans Court de-
termines  whether,  based  on  the  VA’s  plausible  factual
findings, the “positive and negative evidence” is in “approx-
imate balance” (what I call the approximate-balance stand-
ard).

All agree that the clear-error standard applies to the VA’s
factual findings regarding the evidence that  the Veterans
Court examines at step one.  So, for example, the Veterans
Court must accept the VA’s determination that a particular
piece  of  evidence  is  reliable  or  that  an  individual  medical
examiner is qualified, unless those findings are clearly er-
roneous.  It is at the second step—when the Veterans Court
determines  whether  the  evidence  is  in  approximate  bal-
ance—that questions of law come in.

At step two, the Veterans Court is essentially being asked
to decide whether a legal standard (“approximate balance”)
has  been  satisfied  on  the  established  facts.  As  a  general
matter, this Court has long treated the application of a legal
standard to a given set of facts as an exercise that poses a
legal  question.  See,  e.g.,  Guerrero-Lasprilla  v.  Barr,  589
U. S. 221, 227–228 (2020).  What the majority misses in its
effort to shoehorn §5107(b)’s approximate-balance inquiry
into  the  question-of-fact  category  is  the  true  nature  of
that  assessment,  as  well  as  the  fact  that  making  the
approximate-balance determination is more nuanced than
simply weighing the evidence on hand.

For one thing, the court must have a standard for decid-
ing when the evidence before it is in “approximate balance”
as a matter of law.  In our common-law legal system, devis-
ing that standard happens over time, on a case-by-case ba-
sis.  Therefore,  applying  it  might  well  involve  examining
Veterans Court precedents concerning the meaning of “ap-
proximate  balance,”  as  well  as  past  cases  that  establish

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BUFKIN v. COLLINS

JACKSON, J., dissenting

when and under what circumstances certain kinds of evi-
dence  will  be  found  to  qualify.  One  can  easily  imagine  a
body  of  case  law  developing  to  illuminate  the  substantive
and  procedural  contours  of  the  approximate-balance  in-
quiry and the factors that are to be considered.  Thus, ap-
plying  §5107(b)’s  “approximate  balance”  test  is  in  no  way
akin to “finding” a “material fact” that is ultimately subject
to subsection (a)(4)’s clear-error review, as even the Govern-
ment appeared to concede at oral argument.  See Tr. of Oral
Arg. 59.  Rather, application of the “approximate balance”
test presents a “classic mixed question of law” that requires
applying a “legal standard” to “historical facts.”  Ibid.

Where Congress has not prescribed a standard of review
for evaluating a mixed question, the appropriate degree of
deference  reflects  “the  nature  of  the  mixed  question”  and
“which kind of court . . . is better suited to resolve it.”  U. S.
Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. 387, 395
(2018) (citing Miller v. Fenton, 474 U. S. 104, 114 (1985)).
In  general,  trial  courts’  “expertise”  as  factfinders  justifies
deference to their factual determinations.  Anderson v. Bes-
semer City, 470 U. S. 564, 574–575 (1985).  For this reason,
appellate  courts  “usually”  review  with  deference  mixed
questions  that  require  resolving  “case-specific  factual  is-
sues.”  U. S. Bank, 583 U. S., at 396.  But, as I have already
explained, that is not what is happening here.

Even if the majority is correct to assume that §5107(b)’s
“approximate  balance”  standard  calls  for  a  mere  head-to-
head weighing of the positive and negative evidence, that is
still an insufficient basis upon which to rest the majority’s
clear-error  conclusion,  because  deference  is  “not  always”
given  regarding  such  fact-specific  inquiries.  Ibid.,  n. 4.
There are circumstances where de novo review is appropri-
ate “even when answering a mixed question primarily in-
volves plunging into a factual record.”  Ibid.

Consider one common example.  Whether probable cause

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15

JACKSON, J., dissenting

existed to support a search or seizure in the Fourth Amend-
ment context is a mixed question of law and fact that appel-
late  courts  review  de novo.  Ornelas  v.  United  States,
517  U. S.  690,  696–699  (1996).    And  review  of  probable-
cause  determinations  proceeds  in  two  steps,  just  like  the
approximate-balance  inquiry.  At  step  one,  the  appellate
court  identifies  the  relevant  historical  facts  and  reviews
them for clear error.  Id., at 696–697, 699.  At step two, the
court  decides  whether  an  objectively  reasonable  police  of-
ficer would believe that those facts establish probable cause
to search.  Id., at 696–697.  The second step is a legal ques-
tion  that  asks  whether  the  facts  satisfy  a  legal  standard.
Ibid.

Another highly fact-sensitive inquiry is whether evidence
presented at trial is sufficient to support a verdict—and ap-
pellate courts review that determination de novo as well.  In
a civil case, the trial court may grant judgment to a moving
party  as  a  matter  of  law  after  the  nonmoving  “party  has
been fully heard on an issue during a jury trial,” if it “finds
that  a  reasonable  jury  would  not have  a  legally  sufficient
evidentiary basis to find for the party on that issue.”  Fed.
Rule  Civ.  Proc.  50(a)(1).  When  making  this  decision,  the
trial judge determines whether, reviewing the facts in the
light most favorable to the nonmovant, the evidence is suf-
ficient to meet the applicable evidentiary standard.  Reeves
v.  Sanderson  Plumbing  Products,  Inc.,  530  U. S.  133,  150
(2000); see also 9B C.  Wright & A. Miller, Federal Practice
and  Procedure  §2524  (3d  ed.  2008)  (explaining  that  the
sufficiency-of-the-evidence inquiry is a legal question deter-
mined by the court).  And, on appeal, the reviewing court
undertakes the same sufficiency analysis by evaluating the
evidence without any deference to the trial court’s determi-
nation.  Ibid.; see also Reeves, 530 U. S., at 150.3

——————

3 In criminal cases, too, whether evidence is legally sufficient to sup-
port  a  conviction  is  reviewed  de novo,  considering  the  evidence  in  the

16

BUFKIN v. COLLINS

JACKSON, J., dissenting

These examples demonstrate that nondeferential appel-
late review of factbound legal issues is not unprecedented.
And  under  §7261(b)(1),  the  Veterans  Court  must  follow
suit.  Section 7261(b)(1) directs the Veterans Court to eval-
uate  the  VA’s  approximate-balance  decisions  by  first  ac-
cepting the agency’s not-clearly-erroneous factual findings
about  the  evidence  presented  and  then  determining
whether  that  evidence  satisfies  the  approximate-balance
standard,  without  deference  to  the  VA’s  own  conclusions.
This  analysis—which  “has  both  legal  and  factual  compo-
nents,” ante, at 11—is plainly analogous to the sufficiency-
of-evidence  and  probable-cause  questions  that  appellate
courts regularly review de novo.

B

The majority dismisses these compelling parallels on the
grounds that assessing the sufficiency of the evidence or de-
termining the existence of probable cause are more “legal”
than the approximate-balance inquiry.  Ante, at 14–15.  The
majority  further  emphasizes  that  evaluating  whether  the
evidence  is  approximately  balanced  for  §5107(b)  purposes
is a “fact intensive” inquiry that is better left to the “tribu-
nal below” than the appeals court.  Ante, at 12–13.  It also
unfurls a surplusage argument of its own: If de novo review
applies to the VA’s approximate-balance determination, the
majority  says,  then  subsection  (b)(1)  is  superfluous  under
petitioners’  interpretation  because  that  determination
“would have been subject to de novo review even before the
enactment of §7261(b)(1).”  Ante, at 16.

None of this reasoning is persuasive.  To start, the major-
ity’s  efforts  to  distinguish  sufficiency  and  probable-cause
review from the approximate-balance inquiry fall flat.  For
example, according to the majority, the probable-cause in-
quiry  is  distinguishable  because  reviewing  courts  assess
——————
light most favorable to the prosecution.  Jackson v. Virginia, 443 U. S.
307, 318–319 (1979).

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17

JACKSON, J., dissenting

probable cause from the standpoint of an objectively reason-
able officer, and courts are required to consider and “refine
over  time”  what  a  “hypothetical  person”  would  deem  rea-
sonable as a matter of law.  Ante, at 14.  The majority says
that sufficiency challenges likewise require courts to use a
“legal lens, applying a  hypothetical, objective standard”—
i.e., what a reasonable jury could find.  Ante, at 15.

But the approximate-balance inquiry is not meaningfully
different.  Before  the  Veterans  Court  can  determine
whether the VA erred in deciding that the positive and neg-
ative evidence is not in “approximate balance,” it must first
have an understanding of what “balanced” evidence looks
like in this context.  Identifying “balance” might involve a
hypothetical  and  objective  examination  of  the  evidence—
just like a review of the sufficiency of the evidence or prob-
able cause.  Imagine two doctors testify in favor of a claim-
ant’s diagnosis and two doctors testify against it.  Does the
mere fact that the same number of witnesses are presented
on both sides mean that the evidence is “balanced,” as a le-
gal matter?  The Veterans Court would need to develop a
legal rule to decide.  It would also need to decide how the
quality of the evidence factors in: What if one of the doctors
is the Nobel laureate who discovered the condition at issue
while others are recent medical-school graduates?  Does the
testimony of a doctor who has examined the claimant bal-
ance evenly against one who has not?

It is thus quite likely that legal standards will need to be
developed  to  govern  the  assessment  of  “approximate  bal-
ance”—which is why the majority is wrong to contend that
resolving  approximate-balance  challenges  will  rarely  pro-
duce generally applicable precedents.  Ibid.  Regardless, the
mere fact that the assignment here involves a fact-intensive
and  “multi-faceted”  decision—such  that  “ ‘one  determina-
tion  will  seldom  be  a  useful  “precedent”  for  another’ ”—
should not impede our recognition of the significant ques-
tions  of  law  that  are  embedded  in  the  application  of  the

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JACKSON, J., dissenting

approximate-balance standard.  Ornelas, 517 U. S., at 698;
see also Dupree v. Younger, 598 U. S. 729, 734 (2023) (ob-
serving  that  sufficiency  challenges  “depend  on  . . .  the
facts”).

The  majority’s  attempt  to  distinguish  probable  cause
from the approximate-balance standard because the latter
is “a creature of statute,” ante, at 15, is similarly off base.
To be sure, application of the benefit-of-the-doubt rule is not
constitutional in nature.  But this principle is not a mere
statutory creation, either—it predates §5107(b) and in fact
“dates back to the post-Civil War era.”  Ante, at 3 (citing 50
Fed. Reg. 34454 (1985)); see also, e.g., H. R. Rep. No. 387,
46th Cong., 3d Sess., 132–133 (1881) (testimony of a Bureau
of  Pensions  physician  explaining  that  when  the  evidence
left “room for doubt” regarding the extent of a veteran’s dis-
ability,  the  practice  was  to  “give  him  the  benefit  of  the
doubt” if “he appear like an honest man”).  In any event,
the  majority  does  not  explain  why  the  statutory-versus-
constitutional  distinction  has  any  rational  bearing  on  the
amount of deference the Veterans Court owes to the VA’s
benefit-of-the-doubt determinations.

Speaking of statutes, it is also significant that, under the
judicial  review  scheme  Congress  has  crafted  for  veterans’
benefits claims, the Veterans Court is no ordinary appellate
tribunal.  The thrust of the majority’s reasoning seems to
be that, as an “appellate court,” the Veterans Court should
do what appeals courts typically do: defer to the lower tri-
bunal’s assessment of these “ ‘case-specific factual issues.’ ”
Ante, at 13.  But the “contrast between ordinary civil litiga-
tion” and the statutory requirements for adjudicating vet-
erans’  benefits  claims  “could  hardly  be  more  dramatic.”
Henderson, 562 U. S., at 440.

To  begin,  the  institutional  advantages  that  generally
warrant  deference  to  trial  courts  on  factual  issues  do  not
exist in this context, because the final decisionmaker for the
VA—the Board of Veterans’ Appeals—is itself an appellate

Cite as:  604 U. S. ____ (2025)

19

JACKSON, J., dissenting

body.  See id., at 431 (citing §§7101, 7104(a)).  What is more,
the Veterans Court is “an Article I tribunal” that Congress
placed  within  “a  unique  administrative  scheme.”    Id.,  at
437–438.  Such tribunals often develop “special ‘expertise’ ”
that guides them “ ‘in making complex determinations in a
specialized  area  of  the  law.’ ”    Sanders,  556  U. S.,  at  412.
And that is particularly true of the Veterans Court, which
regularly reviews “case-specific raw material” in veterans’
cases.  Ibid.  This feature distinguishes the Veterans Court
from Article III appellate courts because it gives that court
the  “experience”  and  “expertise,”  Anderson,  470  U. S.,  at
574, that “enabl it to make empirically based” judgments
on fact-specific issues, Sanders, 556 U. S., at 412—such as
whether the benefit-of-the-doubt rule applies.

Considering these unique features of the Veterans Court
and the legal landscape in which it operates, there is good
reason to believe that the Veterans Court is actually “better
suited to resolve” the approximate-balance inquiry than the
VA itself.  U. S. Bank, 583 U. S., at 395.  This is especially
so given the need for fairness and consistency in the appli-
cation of the “approximate balance” standard.

Thus,  even  though  review  of  the  VA’s  approximate-
balance  determination  requires  applying  a  legal  standard
to a set of facts, the Veterans Court is well equipped to do
so, and de novo review of the VA’s determination best pro-
motes  the  “sound  administration  of  justice.”  Miller,  474
U. S., at 114.  In concluding otherwise, the majority mini-
mizes the “singular characteristics” of the review scheme at
issue,  Henderson,  562  U. S.,  at  440,  and  disregards  Con-
gress’s choice to task the Veterans Court with ensuring that
the VA complies with the benefit-of-the-doubt rule.

Finally,  because  §7261(a)  unquestionably  authorizes
de novo  review  of  questions  of  law,  the  majority  contends
that  applying  de novo  review  to  the  VA’s  approximate-
balance determinations would render subsection (b)(1) su-
perfluous.  Ante, at 16.  But that reasoning assumes that it

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JACKSON, J., dissenting

was  always  clear  that  an  approximate-balance  challenge
raises  a  legal  question  (an  assumption  belied  by  the  very
holding that the majority announces today).  Quite to the
contrary,  before  Congress  enacted  subsection  (b)(1)  to  re-
quire  that  the  Veterans  Court  “take  due  account”  of  the
VA’s benefit-of-the-doubt determinations, that court—erro-
neously,  in  my  view—reviewed  benefit-of-the-doubt  chal-
lenges with deference.  See supra, at 3–4, 10.  Properly un-
derstood,  subsection  (b)(1)  accomplishes  the  clear  and
important  mission  of  abrogating  the  Federal  Circuit  and
Veterans Court cases requiring such deference.  The major-
ity simply ignores this point.  See ante, at 16–17.

*

*

*
In  response  to  complaints  that  the  Veterans  Court  was
not doing enough to ensure that the VA was, in fact, giving
the benefit of the doubt to veterans, Congress inserted into
a demonstrably pro-claimant administrative scheme the re-
quirement  that  the  Veterans  Court  “take  due  account”  of
the  VA’s  application  of  the  benefit-of-the-doubt  rule.
§7261(b)(1).  The reading that the majority adopts today re-
duces that provision to a rhetorical flourish and all but en-
sures that the Veterans Court will continue rubberstamp-
ing the VA’s application of the benefit-of-the-doubt rule.

If the majority’s holding is correct, then “Congress went
through an awful lot to achieve relatively little.”  Wilkinson
v. Garland, 601 U. S. 209, 227 (2024) (JACKSON, J., concur-
ring in judgment).  The far better reading of this statute—
one  that  fully  comports  with  the  text,  structure,  context,
history,  and  purpose  of  the  provision  Congress  wrote—is
that the Veterans Court must review without deference the
VA’s approximate-balance determination, and thereby fully
assess  that  agency’s  compliance  with  Congress’s  com-
mands.

