Snyder: 90 Days of Service Upheld in the ALS Regulation

Snyder v. McDonald, Case Number 2020-2168, decided June 9, 2020 discusses and upholds the 90 day active duty requirement for the presumption of ALS. 

The veteran served for 50 days during the Vietnam era (a period of war), he received an honorable discharge due to a knee injury.  Four decades later he sought service connection for Amyotrophic Lateral Sclerosis (ALS).

The Court explained that the veteran had argued to “meet the fundamental requirement of service connection, solely on an argument about a VA regulation, adopted in 2008 and made final in 2009, that provides a presumption of service connection for veterans with ALS if specified preconditions are satisfied. 38 C.F.R. § 3.318(a), (b).”  Id. at *2.  However, it noted the veteran

“undisputedly does not satisfy one of those preconditions—that the veteran “have active, continuous service of 90 days or more.” Id. § 3.318(b)(3). Nevertheless, Mr. Snyder argued in the Veterans Court that the 90-day-service precondition is unlawful, because contrary to the statutory scheme and arbitrary and capricious, and that the presumption should remain in place with the precondition nullified, entitling him to a finding of service connection.”

Id. at *2.  The Court noted the ALS presumption is entirely a regulatory creation and Congress has not spoken as to an ALS presumption.  Id. at *3.  The Court noted the underlying IOM Report which led to the VA’s ALS presumption noting and discussed the regulation.  Id. at *6.  The presumption contained three exceptions: 1) where there is affirmative evidence ALS was not incurred during or aggravated by military service, 2) there is affirmative evidence ALS was caused by the veteran’s own willful misconduct, and 3) service connection would not be presumed if the veteran did not have 90 days of active and continuous service.  Id. at *7.  The VA explained in its rulemaking: “We believe that 90 days is a reasonable period to ensure that an individual has had sufficient contact with activities in military service to encounter any hazards that may contribute to development of ALS.”  Id. at *7.

The veteran argued the VA exceeded its statutory authority and the 90 day limitation was arbitrary and capricious.  First, the Court  noted 38 U.S.C. Section 501(a) gives authority for the regulation and the 90 day requirement does not impermissibly redefine the term “veteran.”  As to the arbitrary and capricious argument, the Court deferred to the agency because the action was reasonable and reasonably explained.  Id. at *12.  The Court determined:

“In these circumstances, neither the evidence nor logic required the Secretary to limit his options to either ignoring length of service altogether or declining to adopt a presumption at all. The Secretary could reasonably choose a familiar short period to avoid what he reasonably found would be too demanding an evidentiary standard (no presumption) or too lenient a standard (no minimum service period) for applying the statutory requirement of service connection to veterans with ALS. We conclude that the Secretary “reasonably considered the relevant issues and reasonably explained the decision” and made a choice within the “zone of reasonableness.””

Id. at *16.

Decision by Judge Taranto and joined in by Judges Linn and Chen.

To know more about whether Thomas Andrews can help you, please visit my website.