Hansen-Sorensen: The ALS Rule and Active Duty for Training

Hansen-Sorensen v. Wilkie, Opinion Number 2017-2418 is a Federal Circuit decision questioning whether the exceptions created by the VA for Camp Lejeune contaminated water exposure and C-123 Agent Orange exposure expand the definition of “active military, naval or air service.”

The veteran here had 182 days of active duty for training followed by six years in the National Guard.  He ultimately died to ALS.  A special presumption applies to ALS saying “the development of [ALS] manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that

disease.” 38 C.F.R. § 3.318(a) (ALS Rule).

The VA and Veterans Court ruled active duty for training did not qualify as “active military, naval or air service.”  The Federal Circuit in Bowers v. Shinseki, 748 F.3d 1351 (Fed. Cir 2014) grappled with this question, closely examined 38 U.S.C. Section 101(24) and determined that active duty for training does not come within the meaning active duty.  In Bowers the Court specifically held

the ALS Rule did not apply to a man who had served in the National Guard, and had a period of “active duty for training” but not “active duty,” where his widow had not

shown that her late husband’s ALS was incurred or aggravated in the line of duty.  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. 38 U.S.C. § 101(24)(B).  In the absence of such a showing, the threshold requirement of the ALS Rule is not met, and no presumption of service connection arises under that rule.

Id. at *3.

In this case, the veteran’s surviving spouse sought to show the new rules for Camp Lejeune and C-123 contamination supersede the Bowers and expanded the scope of active duty for training.  Both of these regulations impacted those exposed during active duty for training.

The Court rejected the arguments stating

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 80 Fed. Reg. at 35,246–47  discussing 2014 National Academy of Sciences Institute of Medicine study of scientific literature and knowledge regarding “residual exposure to Agent Orange from service on aircraft formerly used during Operation Ranch Hand in Vietnam”); 82 Fed. Reg. at 4174–83 (discussing a variety of studies of effects of contaminants at Camp Lejeune). Based on those judgments, the Secretary, exercising general authority under 38 U.S.C. § 501(a), codified a legal shortcut in each situation for meeting, not altering or circumventing, the

standard of § 101(24)(B) and (C) for coming within the “active military, naval, or air service” language—as the two new rules, quoted in part above, make clear on their

face.

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.

Id. at *6-7.

The Federal Circuit also considered the Appellant’s argument that the distinction between the Camp Lejeune and C-123 rules and the ALS rule represents an arbitrary and capricious distinction.  The Court rejected this argument noting the empirical studies relied upon by the VA.

While I understand the distinction and arguments attempted to be made by counsel, the Federal Circuit ultimately found a plausible distinction between the different rules and deferred to the VA’s view of the evidence in creating these presumptions (without specifically stating it was deferring to the agency).  I believe this case represents the last word in ALS cases involving those with active duty for training service.

Decision by Judge Taranto and joined by Judges Lourie and Dyk.

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Harper: What Happens When TDIU Is Decided While the Underlying Claim is on Appeal to the Board

Harper v. Wilkie, Case Number 16-3519, decided December 6, 2018 considers what happens when TDIU was granted by the RO while waiting on an appeal to the Board on the underlying PTSD rating.  The veteran disagreed with the effective date but the Board stated it did not have jurisdiction as to the effective date because the veteran had not filed a separate NOD as to that issue.

The veteran argued “that the Board erred in concluding that the issue of entitlement to TDIU prior to February 2016 was not on appeal. Specifically, Mr. Harper asserts that, pursuant to Rice v. Shinseki, 22 Vet.App. 447 (2009), the issue of entitlement to TDIU

became "part and parcel" of his appeal for a higher initial disability rating for PTSD

in February 2014 when he explicitly raised the issue while his appeal was pending. Id. at 15. He asserts that, although "entitlement to TDIU for the period after February 2016 became moot as a result of the RO's decision, the issue of entitlement to TDIU prior to that date remained on appeal.”  Id. at *3. 

The Secretary countered by arguing the veteran did not appeal the May 2016 RO decision granting TDIU which also set the effective date for the TDIU award and thus the Board and Court lacked jurisdiction to consider the effective date.  Id. at *3. 

The Court held: “the Board erred in determining that it did not have jurisdiction over the issue of entitlement to TDIU before February 2016. Contrary to the Secretary's assertion, Mr. Harper did not need to appeal the May 2016 RO decision because the issue of entitlement to TDIU became part and parcel of the underlying PTSD claim and the RO's grant of TDIU served only as a partial grant of his request for TDIU.”  Id. at *4. 

The Court principally relied on Rice v. Shinseki, 22 Vet.App. 447 (2009) an dan unpublished decision by the Federal Circuit— Palmatier v. McDonald, 626 F. App'x 991, 994 (Fed. Cir. 2015)— in its analysis. It explained because of Rice, once Mr. Harper’s PTSD claim was in appellate status by virtue of the December 2008 NOD, the issue of TDIU became part of the underlying PTSD claim when he filed an application for TDIU in February 2014.  Thus, the Board had jurisdiction to consider the issue of the effective date.  The Court explained the grant of TDIU by the RO as only a partial grant of benefits.

The Court also dealt with a  reasons and bases argument regarding the scheduler PTSD rating and found as to at least one issue that simply listing as evidence without addressing it in its analysis does not satisfy the duty to provide an adequate reasons or bases.  Id. at *8 (“The Board cannot satisfy its duty to provide adequate reasons or bases by merely listing evidence and then reaching a conclusion.”)

This is a helpful decision to veterans as it is not unusual for TDIU to be granted at one stage while an appeal to the Board already exists.  It reinforces the notion that “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or . . . as part of a claim for increased compensation.”  Id. at *4 (quoting Rice).  The case also reminds us that the VA is forever finding effective dates that are harmful to veterans and often the only way to fight them is to go to the Court.

The decision was written by Chief Judge Davis and joined in by Judges Meredith and Toth.  This itself is instructive as these are by no means the most pro-veteran judges on the Court, the fact these judges ruled so forcefully suggests the Court is concerned about the VA’s treatment of TDIU claims.

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