"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Wednesday, July 3, 2013

Bowers: Active Duty Presumption for ALS



Kay M. Bowers v. Eric K. Shinseki, Opinion Number 10-3399, decided February 19, 2013 concerns the interpretation of a regulation making ALS a presumed service-connected disease.

The veteran’s widow appealed a denial of service connection for her husband’s ALS.   The veteran had served in the Army National Guard from March 1872 until March 1978 with a continuous period of active duty for training for more than 90 days from August 1972 to February 1973.  The veteran was diagnosed with ALS in 2009.

38 CFR 3.318 makes ALS a presumed illness if it manifests after “active military, naval or air service.”  The veteran’s widow argued the plain language of the regulation was clear and her husband should have been granted benefits.  

However, 38 USC Section 101 defines the term “active military, naval or air service” as among other things “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 the line of duty.”

The Court used the definition of the term “active military, naval or air service” to conclude that “the Secretary has limited that presumption to only those who served 90 consecutive days of ‘active military, naval or air service’”.  Id. at *8.  And explained that “this language implies a requirement that the individual attain veteran status, in that the statutory definition of “active military, naval or air service” excludes those who have served on active duty for training regardless of the length of that service—unless it can be shown that ‘the individual concerned was disabled or died from a disease or injury incurred or aggravated’ during that period of active duty for training.”  Id. at *8.  “Thus, even though Mr. Bowers served on ‘active duty’ for more than 90 consecutive days, he is not entitled to the presumption of service connection for amyotrophic lateral sclerosis because he is not a veteran for VA disability compensation purposes.”  Id. at *8.

Decided by Judge Hagel, Moorman, and Bartley.

Monday, July 1, 2013

Shephard: Incarceration and Overpayment




Catherine A. Shephard v. Eric K. Shinseki, Opinion Number 11-2074, decided February 27, 2013 involves VA overpayments of benefits.

The veteran was incarcerated from November 2002 until November 2008.  The VA discovered the incarceration in September 2003 and proposed to reduce the rating in June 2004 to 10% pursuant to VA regulations concerning compensation to incarcerated veterans.  The VA notified the veteran of an overpayment of $63,000 and when she was released from prison the veteran sought reinstatement of her full compensation and to be paid for the benefits that were reduced.

38 USC Section 5313(a)(1)) states that a veteran “shall not be paid for such compensation … for the period of beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends.”

Veteran argued she should receive the accrued compensation amount after release.  The Court looked at the plain language of the statute and legislative history and found that the purpose was to prevent the incarcerated from drawing benefits.

The Court did remand as to reasons and bases for the whether the $63,000 debt was properly created.

Decided by C.J. Kasold, and Judges Schoelen and Pietsch.