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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