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.