909 F.3d 1379
Fed. Cir.2018Background
- Curtis Hansen served in the Army National Guard (1959–approx.) and had 182 days of active duty for training; he later died of ALS in 1998.
- In May 2009 his widow, Myrna Hansen‑Sorensen, applied for dependency and indemnity compensation under 38 U.S.C. § 1310(a) relying on the VA’s 2008 regulation (the ALS Rule) that presumes service connection where ALS "manifested at any time after discharge" for persons who served in "active military, naval, or air service."
- The threshold statutory phrase "active military, naval, or air service" is defined in 38 U.S.C. § 101(24), which treats (A) active duty and (B) active duty for training as distinct categories.
- In Bowers v. Shinseki this court held that "active duty for training" is not "active duty," so reservists must show their disabling condition was "incurred or aggravated in line of duty" and disabled "during" that training to qualify under § 101(24)(B).
- The VA later adopted two rules (C‑123 and Camp Lejeune) that create presumptions of exposure/injury for narrow factual classes, but those rules do not amend the ALS Rule or § 101(24)’s text and do not apply to Hansen’s facts.
- The Veterans Court and the Board denied benefits because Hansen had only active duty for training and Mrs. Hansen‑Sorensen did not show ALS was incurred/ aggravated or became disabling during that training; this Court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hansen’s active duty for training counts as "active military, naval, or air service" for the ALS Rule | Hansen‑Sorensen: ALS Rule’s phrase should cover Hansen’s training service; post‑Bowers VA rules show changed approach | Secretary: § 101(24) treats active duty and active duty for training separately; ALS Rule incorporates statutory phrase and requires §101(24)(B) showings | "Active duty for training" is not "active duty"; absent a showing ALS was incurred/ aggravated and disabling during training, threshold unmet; claim fails |
| Whether post‑Bowers C‑123 and Camp Lejeune regulations supersede or modify Bowers’ statutory interpretation | Hansen‑Sorensen: those regulations demonstrate VA changed treatment of reservists and render Bowers inapplicable | Secretary: those rules create narrow presumptions for specific exposures but do not alter ALS Rule or the statutory text interpreted in Bowers | C‑123 and Camp Lejeune do not alter Bowers; they only provide statutory‑text shortcuts for specified factual classes and do not apply here |
| Whether VA’s differing regulatory treatment (ALS vs C‑123/Camp Lejeune) is arbitrary and capricious | Hansen‑Sorensen: treating these situations differently is arbitrary and inconsistent | Secretary: empirical bases differ; VA reasonably distinguished ALS evidence from specific exposure studies | No persuasive showing of arbitrariness; VA can reasonably distinguish the situations on empirical grounds |
| Whether deference (Chevron/Auer) changes outcome | Hansen‑Sorensen: post‑Bowers regulations and deference principles support VA’s broader regulatory approach | Secretary: Bowers interpreted the statute without deference; regulations do not re-write statute | Court applies Bowers’ interpretation; deference principles do not alter the statutory holding here |
Key Cases Cited
- Bowers v. Shinseki, 748 F.3d 1351 (Fed. Cir.) (statutory interpretation that "active duty for training" is distinct from "active duty")
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (agency deference framework cited for regulatory challenges)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its own regulations)
- Kaiser Found. Hosps. v. Sebelius, 708 F.3d 226 (D.C. Cir.) (discusses when treating like cases differently may be arbitrary)
- Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365 (Fed. Cir.) (agency must reasonably explain differing regulatory implementations of similar statutory text)
- NLRB v. General Stencils, Inc., 438 F.2d 894 (2d Cir.) (agency inconsistency may be arbitrary and capricious)