Andrews v. McDonough, No. 19-0352 (Argued December 9, 2020 Decided June 22, 2021);’burden of proof’; air guns and reusable syringes; hepatitis C; probative value of evidence is highly contextual and it’s often difficult to assess; Stevens v. Principi, 289 F.3d 814, 817-18 (Fed. Cir. 2002) (“When an agency has employed the wrong legal standard in evaluating evidence in the case, the appropriate remedy is normally for the reviewing court to remand the case to the agency for the agency to reassess the evidence under the correct factual standard.”);

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0352
DAVID A. ANDREWS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued December 9, 2020 Decided June 22, 2021)
James D. Ridgway, with whom Glenn R. Bergmann was on the brief, both of Bethesda,
Maryland, for the appellant.
Alexander You, with whom Richard J. Hipolit, Acting General Counsel; Mary Ann Flynn,
Chief Counsel; and Joan E. Moriarty, Deputy Chief Counsel, were on the brief, all of Washington,
D.C., for the appellee.
Before ALLEN, TOTH and FALVEY, Judges.

TOTH, Judge: “The term ‘burden of proof’ is one of the ‘slipperiest members of the family
of legal terms’.” Schaffer v. Weast, 546 U.S. 49, 56 (2005) quoting 2 J. Strong, McCormick on
Evidence § 342, p. 433 (5th ed. 1999). This appeal requires us to grasp some of the slipperiest
issues in veterans law, namely how claims are proven and how this Court reviews them.
Both parties acknowledge that the Board erred in relying on an inadequate medical exam;
the dispute here centers on the remedy. Marine Corps veteran David A. Andrews asks the Court
to review the evidence of record and reverse the Board’s ruling that service connection is not
warranted for his hepatitis C, rather than remand for additional fact finding. He contends that
reversal is the only proper remedy given that the evidence of record meets the “benefit of the
doubt” standard spelled out in the law and specifically referenced by the statute laying out the
Court’s scope of review. By contrast, the Secretary contends that to reverse would