Lynch v. McDonough

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




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                    JOE A. LYNCH,
                   Claimant-Appellant

                            v.

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

                        2020-2067
                  ______________________

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

                Decided: December 17, 2021
                  ______________________

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

     EVAN WISSER, Commercial Litigation Branch, Civil Di-
 vision, United States Department of Justice, Washington,
 DC, argued for respondent-appellee. Also represented by
 BRIAN M. BOYNTON, ERIC P. BRUSKIN, MARTIN F. HOCKEY,
 JR.; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of
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 2                                      LYNCH   v. MCDONOUGH



 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.

    MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
 LLP, Washington, DC, for amicus curiae Military-Veterans
 Advocacy Inc. Also represented by Melanie Hallums,
 Wheeling, WV; JOHN B. WELLS, Law Office of John B.
 Wells, Slidell, LA.

    STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP
 (US), San Diego, CA, for amici curiae Swords to Plow-
 shares, Connecticut Veterans Legal Center. Also repre-
 sented by EDWARD HANOVER, East Palo Alto, CA; JESSE
 MEDLONG, San Francisco, CA.
                 ______________________

      Before DYK, CLEVENGER, and PROST, Circuit Judges.
   MOORE, Chief Judge, LOURIE, DYK, PROST, TARANTO,
 CHEN, HUGHES, STOLL, and CUNNINGHAM, Circuit Judges,
         have joined Part II.B of this opinion.
     Opinion concurring in part and dissenting in part from
        Part II.B filed by Circuit Judge REYNA, in which
          Circuit Judges NEWMAN and O’MALLEY join.
 PROST, Circuit Judge.
     Joe A. Lynch appeals the final decision of the United
 States Court of Appeals for Veterans Claims (“Veterans
 Court”) affirming the Board of Veterans’ Appeals’ (“Board”)
 denial of his claim for a disability rating greater than 30%
 for service-connected post-traumatic stress disorder
 (“PTSD”). Lynch v. Wilkie, No. 19-3106, 2020 WL 1899169
 (Vet. App. Apr. 17, 2020) (“Decision”). In affirming the
 Board’s denial, the Veterans Court relied on Ortiz v. Prin-
 cipi, 274 F.3d 1361, 1364 (Fed. Cir. 2001), to determine
 that the “benefit of the doubt rule” under 38 U.S.C.
 § 5107(b) did not apply to Mr. Lynch’s claim. Mr. Lynch
 argues that Ortiz departs from the “approximate balance”
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 LYNCH   v. MCDONOUGH                                       3



 of the evidence standard, as set forth in 38 U.S.C.
 § 5107(b), to trigger the benefit-of-the-doubt rule, and that
 Ortiz was therefore wrongly decided. Today’s opinion, con-
 sidered and decided in part by the court en banc, addresses
 Ortiz.
                        BACKGROUND
     Mr. Lynch is a veteran who served on active duty in the
 United States Marine Corps from July 1972 to July 1976.
 In March 2015, Mr. Lynch presented for counseling upon
 the recommendation of his veteran peer group and was
 evaluated on two separate occasions by Dr. Gwendolyn
 Newsome, a private psychologist. Mr. Lynch described
 symptoms, including phobias about confined spaces, panic
 attacks, memory problems, mood swings, frequent night-
 mares, antisocial behaviors, and depression. J.A. 25–26.
 He attributed these symptoms to intrusive memories from
 his time in service and completed the military version of
 the PTSD Checklist. J.A. 25–26. Dr. Newsome reported
 that Mr. Lynch’s symptoms and the results of the PTSD
 Checklist supported a diagnosis of PTSD. J.A. 25–26.
     In March 2016, Mr. Lynch filed a claim of entitlement
 to PTSD, accompanied by Dr. Newsome’s report, with the
 Department of Veterans Affairs (“VA”). In August 2016,
 Mr. Lynch underwent a VA PTSD examination. The VA
 examiner confirmed the diagnosis of PTSD but reported
 that Mr. Lynch’s PTSD did not result in symptoms that
 were severe enough to interfere with occupational or social
 functioning or to require continuous medication. J.A. 18,
 39. The examiner reviewed Dr. Newsome’s report but
 noted that the level of impairment observed by Dr. New-
 some was not observed or reported during the VA exami-
 nation. J.A. 39, 44. The relevant regional office (“RO”) of
 the VA subsequently granted Mr. Lynch’s PTSD claim with
 a 30% disability rating.
    In October 2016, Mr. Lynch filed a Notice of Disagree-
 ment with the RO disputing the 30% disability rating. In
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 4                                      LYNCH   v. MCDONOUGH



 support, Mr. Lynch submitted two additional psychological
 evaluations conducted by a private psychiatrist,
 Dr. H. Jabbour. See J.A. 49, 58. In July 2017, Mr. Lynch
 underwent a second VA PTSD examination. The examiner
 documented Mr. Lynch’s symptomatology and addressed
 the conflicting medical opinions regarding the severity of
 Mr. Lynch’s symptoms, noting, for example, that some of
 Dr. Jabbour’s conclusions “were more extreme than what
 was supported by available evidence.” J.A. 60. In August
 2017, the RO continued Mr. Lynch’s 30% disability rating.
      Mr. Lynch appealed to the Board, arguing that the RO
 assigned too low a rating for his PTSD because his symp-
 toms are worse than those contemplated by the assigned
 30% rating. The Board denied Mr. Lynch’s appeal, finding
 that based on the record—including the evaluations con-
 ducted by Dr. Newsome, Dr. Jabbour, and the two VA ex-
 aminers—“[Mr. Lynch] does not have social and
 occupational impairment manifested by reduced reliability
 and productivity” that would warrant a disability rating
 greater than 30% for PTSD. See J.A. 20. The Board noted
 that “[Mr. Lynch’s] private examiners have described more
 severe impairment than that identified by the VA examin-
 ers; however, those findings are not supported by the sub-
 jective symptoms provided by [Mr. Lynch].” J.A. 21. The
 Board concluded that “the preponderance of the evidence is
 against the claim and entitlement” for a disability rating
 greater than 30% for PTSD. J.A. 21.
     Mr. Lynch then appealed the Board’s decision to the
 Veterans Court, arguing in relevant part that the Board
 misapplied 38 U.S.C. § 5107(b) and wrongly found that he
 was not entitled to the “benefit of the doubt.” See Decision,
 2020 WL 1899169, at *3. The benefit-of-the-doubt rule is
 codified at 38 U.S.C. § 5107, which provides:
     The Secretary shall consider all information and
     lay and medical evidence of record in a case before
     the Secretary with respect to benefits under laws
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 LYNCH   v. MCDONOUGH                                        5



     administered by the Secretary. When there is an
     approximate balance of positive and negative evi-
     dence regarding any issue material to the determi-
     nation of a matter, the Secretary shall give the
     benefit of the doubt to the claimant.
 38 U.S.C. § 5107(b) (emphasis added). The implementing
 regulation in turn provides:
     When, after careful consideration of all procurable
     and assembled data, a reasonable doubt arises re-
     garding service origin, the degree of disability, or
     any other point, such doubt will be resolved in favor
     of the claimant. By reasonable doubt is meant one
     which exists because of an approximate balance of
     positive and negative evidence which does not sat-
     isfactorily prove or disprove the claim.
 38 C.F.R. § 3.102 (emphasis added).
     The Veterans Court rejected Mr. Lynch’s assertion that
 he was entitled to the benefit of the doubt and affirmed the
 Board’s decision, reasoning that “the doctrine of reasonable
 doubt . . . d[oes] not apply here because the preponderance
 of the evidence is against the claim.”              Decision,
 2020 WL 1899169, at *5 (internal quotation marks omit-
 ted). In support of its reasoning, the Veterans Court relied
 on Ortiz, which stated that “the benefit of the doubt rule is
 inapplicable when the preponderance of the evidence is
 found to be against the claimant.” 274 F.3d at 1364.
 Mr. Lynch now appeals the Veterans Court’s decision.
                         DISCUSSION
                               I
     We have limited jurisdiction to review decisions by the
 Veterans Court. Under 38 U.S.C. § 7292(d)(2), except to
 the extent that an appeal presents a constitutional issue,
 we may not “review (A) a challenge to a factual determina-
 tion, or (B) a challenge to a law or regulation as applied to
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 6                                       LYNCH   v. MCDONOUGH



 the facts of a particular case.” But we may “review and
 decide any challenge to the validity of any statute or regu-
 lation or any interpretation thereof” and “interpret consti-
 tutional and statutory provisions, to the extent presented
 and necessary to a decision.” 38 U.S.C. § 7292(c). And “we
 have authority to decide whether the Veterans Court ap-
 plied the correct legal standard.” Lamour v. Peake,
 544 F.3d 1317, 1321 (Fed. Cir. 2008). We review the Vet-
 erans Court’s legal determinations de novo. Gazelle v.
 Shulkin, 868 F.3d 1006, 1009 (Fed. Cir. 2017).
                               II
     Mr. Lynch raises two issues on appeal. He argues that
 Ortiz was wrongly decided because it sets forth an “equi-
 poise of the evidence” standard to trigger the benefit-of-the-
 doubt rule and that this decreased his chance of receiving
 a disability rating greater than 30% for PTSD. See Appel-
 lant’s Br. 12–13. According to Mr. Lynch, Ortiz read the
 modifier “approximate” out of the term “approximate bal-
 ance” set forth in 38 U.S.C. § 5107(b) by requiring an equal
 or even balance of the evidence to give the benefit of the
 doubt to the claimant. See Appellant’s Br. 16–19. We have
 jurisdiction under 38 U.S.C. § 7292(a), (c).
      Mr. Lynch’s argument is two-pronged. First, he sug-
 gests that Ortiz expressly requires equipoise of the evi-
 dence for a claimant to receive the benefit of the doubt.
 Second, he contends that Ortiz’s statement that “the bene-
 fit of the doubt rule is inapplicable when the preponderance
 of the evidence is found to be against the claimant,”
 274 F.3d at 1364, is contrary to the statutory “approximate
 balance” standard.
                               A
     Contrary to Mr. Lynch’s suggestion that Ortiz sets
 forth an equipoise-of-the-evidence standard to trigger the
 benefit-of-the-doubt rule, Ortiz explicitly gives force to the
 modifier “approximate” as used in 38 U.S.C. § 5107(b).
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 LYNCH   v. MCDONOUGH                                        7



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



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



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



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



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



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



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




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



                         COSTS
 No costs.
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    United States Court of Appeals
        for the Federal Circuit
                   ______________________

                      JOE A. LYNCH,
                     Claimant-Appellant

                              v.

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

                         2020-2067
                   ______________________

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

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



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



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



 I also disagree with the new rule the majority has minted,
 the persuasion of evidence rule, for use in applying the ben-
 efit-of-the-doubt provision set out in 38 U.S.C. § 5107.
      The words of the statute are no mystery. They are
 plain and have common meaning and require no further
 definition. The imperative nature of the statute is also
 clear. In any issue material to the veteran’s claim, the ben-
 efit of the doubt shall go to the veteran.
     (b) Benefit of the Doubt.—
     The Secretary shall consider all information and
     lay and medical evidence of record in a case before
     the Secretary with respect to benefits under laws
     administered by the Secretary. When there is an
     approximate balance of positive and negative evi-
     dence regarding any issue material to the determi-
     nation of a matter, the Secretary shall give the
     benefit of the doubt to the claimant.
 38 U.S.C. § 5107(b).