Notable Cases
A Breakthrough Case for Veterans’ CUE Claims: Baker v. McDonough
U.S. Court of Appeals for the Federal Circuit — 2024 U.S. App. LEXIS 32168 (December 19, 2024)
Mr. Bacharach represented Air Force veteran Deborah Baker before the United States Court of Appeals for the Federal Circuit. The decision we secured is now changing how the VA has to review veterans’ CUE claims across the country.
The Law
Under the time-honored benefit-of-the-doubt rule, veterans 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” whenever “there is an approximate balance of positive and negative evidence regarding any issue material to the” veteran’s benefits claim. This generous standard of proof honors the sacrifices of those who have served in the Armed Forces.
The Fight
Ms. Baker’s case traced back to 1992. Ms. Baker was discharged after a military neurologist diagnosed her with “probable multiple sclerosis (‘MS’).” Nevertheless, the VA denied her claim for service-connected disability because, in its view, the evidence did not “definitively” prove MS. Decades later, when we asked the VA to correct that decision as a clear and unmistakable error — a “CUE” motion — the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims refused. Their reasoning will sound familiar to any veteran who has fought these battles: because the 1992 evidence was “ambiguous” and “reasonable minds could differ,” they said, there was no CUE.
The Breakthrough
On December 19, 2024, the Federal Circuit agreed with Mr. Bacharach. In Baker v. McDonough, 2024 U.S. App. LEXIS 32168, the court held that the Board and the Veterans Court committed legal error by never asking, or determining, whether the 1992 evidence was in approximate balance. If it was, the VA had a statutory duty to resolve the doubt in Ms. Baker’s favor. The failure to apply that duty is a legal error — not a mere disagreement over how to weigh the evidence. The Federal Circuit vacated the decision and sent the case back to the U.S. Court of Appeals for Veterans Claims. The Veterans Court remanded the case to the BVA for review under the correct legal standard. Eventually, Ms. Baker was awarded service connection for her multiple sclerosis, as of 1992.
Why It Matters for Veterans
For decades, “ambiguous evidence” functioned as an automatic shield for the VA in CUE cases. If reasonable minds could differ, there was no CUE — case closed. The Baker case fundamentally changes that. Ambiguity in an old decision can now be the beginning of a viable CUE argument rather than the end of it, when that ambiguity reflects genuine evidentiary balance and the adjudicator improperly applied a different legal standard.
In practical terms: if a prior VA decision in your case denied benefits because the evidence was not “definitive” or “conclusive” — even though the positive and negative evidence was approximately equally balanced — Baker provides a powerful new path to challenge that denial, even if more than 30 years have gone by, as they had in Ms. Baker’s case.
This spring, the National Organization of Veterans’ Advocates included, as part of a continuing-legal-education session, a section titled “The Baker Breakthrough.” I am proud to have been the attorney who brought Ms. Baker’s case — and prouder still that her fight is now helping veterans around the country reopen doors that had long been considered closed.
If you believe an earlier VA decision in your case may have ignored the benefit-of-the-doubt rule, contact our office to discuss whether a CUE motion under Baker may be available to you. Prior results do not guarantee a similar outcome in any future case.
Where It Began: Baxter v. Derwinski
U.S. Court of Appeals for Veterans Claims (then the U.S. Court of Veterans Appeals) — No. 90-273 (1992)
The Law
For most of the twentieth century, a veteran denied benefits by the VA had nowhere to go. The agency’s decisions were effectively final, unreviewable by any court, and a statute dating to the Civil War capped at ten dollars what a veteran could pay a lawyer to help. In practice that meant most veterans were represented, if at all, by service organizations rather than counsel.
Congress ended that on November 18, 1988. The Veterans’ Judicial Review Act created the United States Court of Veterans Appeals — renamed the U.S. Court of Appeals for Veterans Claims in 1999 — and for the first time gave veterans both a court and the right to hire a lawyer to take them there.
The Fight
Harry Baxter’s appeal was docketed as case number 90-273: one of the first few hundred appeals ever filed in the new court. We filed the appellant’s brief on February 6, 1992.
The Secretary of Veterans Affairs asked the Court for more time to respond. Then he asked for more time again. On April 28, 1992 — having twice extended his own deadline — the Secretary moved to remand the case rather than file a brief defending the Board’s decision.
The Result
On May 1, 1992, the Court granted the motion and vacated the decision of the Board of Veterans’ Appeals. Judgment and mandate issued on May 18, 1992. The Secretary never filed a brief on the merits.
Why It Matters for Veterans
Two reasons, and the second is the one that matters to you.
The first is simply that we were there. This firm filed its first appeal in the veterans court in 1990, the court’s first full year of operation, and has been winning cases there for over 34 years. There are not many firms in the country that can say that, because there was no such court to practice in before 1988.
The second is what the docket shows. The VA had denied Mr. Baxter’s claim and the Board had affirmed it. But when the agency was finally required to explain that position to a court — in writing, on the record, against a brief — it asked for more time, asked again, and then abandoned the decision rather than defend it.
That pattern has not gone away. A denial that looks unanswerable in a VA letter often looks very different once someone makes the agency defend it. If the VA or the Board has told you no, that is not necessarily the end of the matter. It may only mean that no one has yet made them explain themselves.
Prior results do not guarantee a similar outcome in any future case.