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.
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