Hansen-Sorensen v. Wilkie
Opinion
Curtis L. Hansen served in the Army National Guard for six years, which included, at the start of the service in 1959, a period of 182 days of active duty for training. Mr. Hansen died from amyotrophic lateral sclerosis (ALS) in 1998. A decade later, in May 2009, his widow, appellant Myrna Hansen-Sorensen, applied to the Secretary of Veterans Affairs, the head of the Department of Veterans Affairs (VA), for benefits under
This appeal concerns whether Mr. Hansen's active duty for training constitutes "active military, naval, or air service"-a phrase that, as relevant here, limits the scope of the ALS Rule and of the term "veteran" as used in § 1310(a).
See
I
In
The term "active military, naval, or air service" includes- *1382 (A) active duty;
(B) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and
(C) any period of inactive duty during which the individual concerned was disabled or died-(i) from any injury incurred or aggravated in line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.
We held in
Bowers v. Shinseki
that the above provision's separate treatment of (A) and (B) means that "active duty for training" does not come within "active duty."
See
Under
Bowers
, for Mrs. Hansen-Sorensen to meet the "active military, naval, or air service" requirement of the ALS Rule, she had to show that Mr. Hansen, who had only active duty for training, "incurred or aggravated" his ALS "in line of duty" and "was disabled" "during" his period of active duty for training.
II
Mrs. Hansen-Sorensen argues that
Bowers
has been superseded-specifically, that it no longer controls after the Secretary's post-
Bowers
adoption of two regulations. Like the Veterans Court, we are not persuaded. Neither of the two regulations modifies the ALS Rule or
Bowers
's controlling interpretation of
The first of the two post-
Bowers
regulations at issue was adopted in 2015 and appears in
*1383
Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide,
The second post-
Bowers
regulation invoked by Mrs. Hansen-Sorensen was adopted in 2017 and appears in
We conclude, contrary to Mrs. Hansen-Sorensen's contention, that the C-123 and Camp Lejeune rules do not alter the Bowers statutory interpretation of the phrase "active military, naval, or air service" or the application of that phrase in the ALS Rule. The two new rules do not change the language of the ALS Rule, which incorporates word for word that statutory phrase. Not surprisingly, given that this court interpreted the statutory phrase without deference, the two new rules also do not purport to alter what we held in Bowers about the meaning of that phrase in an ALS case: "active duty for training" is not "active duty," so for a person who had only the former and came down with ALS-like Mr. Hansen and Mr. Bowers-to qualify under the ALS Rule, there must be a showing that the ALS was "incurred or aggravated" in the line of duty and that the person became disabled from that disease during the training period.
As relevant here, all that the two new rules do is establish that the "incurred or aggravated in line of duty" and "during which the individual concerned was disabled" requirements of § 101(24)(B) and (C) are met in specified circumstances. Those circumstances involve individuals who come down with specified diseases and had specified experiences (with C-123 aircraft or at Camp Lejeune) presenting risks of harm from specified chemical agents (herbicides or water contaminants). The Secretary made empirical judgments about those circumstances.
See
It is undisputed that this case does not come within the circumstances covered by the C-123 or Camp Lejeune Rules. For the situation covered by the ALS Rule, at issue here, the Secretary has not made the same kind of empirical judgment or adopted the same kind of shortcut to making the showings required by § 101(24)(B) for a person with "active duty for training" but not "active duty." Thus, the two post- Bowers rules do not involve a new legal interpretation, or a factual or policy determination, that applies to this case and removes it from the controlling force of Bowers .
Although Mrs. Hansen-Sorensen has framed her challenge as one based on an altered legal interpretation, she has also suggested that the Secretary's different regulatory treatment of the ALS situation, on one hand, from the C-123 and Camp Lejeune situations, on the other, is arbitrary and capricious. This court is authorized to set aside any regulation relied on by the Veterans Court that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
But Mrs. Hansen-Sorensen has not made a persuasive showing of arbitrariness on such grounds in this matter. In particular, she has not shown that the ALS situation is truly "like" the C-123 or Camp Lejeune situations. In the latter two situations, the Secretary, based on empirical studies, made a judgment about likely connections of specific diseases to specific experiences involving likely exposure to specific harm-causing chemicals (herbicides or water contaminants). The exposures underlying those two rules do not underlie the ALS Rule, which relies on different empirical studies that the Secretary did not treat as tying ALS to any specific harm-causing chemical agent, use of specific equipment, or periods of time at a specific location.
See
Presumption of Service Connection for Amyotrophic Lateral Sclerosis,
We have not been presented a focused, detailed examination of the different empirical studies relevant to the different situations that are the subject of the several rules at issue. In this circumstance, we have no basis for concluding that the Secretary cannot reasonably distinguish the ALS situation from the C-123 and Camp Lejeune situations in making judgments about whether to declare categorically or to presume that specific diseases or injuries were "incurred or aggravated in line of duty," or that certain individuals became disabled during specified periods, under § 101(24)(B) and (C). In so concluding, *1385 we express no view on what a different agency or judicial record might reveal.
III
For the foregoing reasons, we affirm the decision of the Veterans Court.
No costs.
AFFIRMED
Reference
- Full Case Name
- Myrna HANSEN-SORENSEN, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee
- Cited By
- 1 case
- Status
- Published