Veteranclaims’s Blog

December 12, 2018

Hansen-Sorensen v. Wilkie, No. 2017-2418(Decided: December 11, 2018); 38 U.S.C. § 1310(a); Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide, 80 Fed. Reg. 35,246, 35,246 (June 19, 2015); 38 C.F.R. § 3.307(a)(7) (Camp Lejeune Rule);

Excerpt from decision below:

“We held in Bowers v. Shinseki that the above provision’s separate treatment of (A) and (B) means that “active duty for training” does not come within “active duty.” See 748 F.3d 1351, 1353 (Fed. Cir. 2014).”

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“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.”

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United States Court of Appeals for the Federal Circuit
______________________
MYRNA HANSEN-SORENSEN,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-2418
______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 15-2685, Senior Judge William A. Moorman.
______________________
Decided: December 11, 2018
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
NATHANAEL YALE, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR., JOSEPH H. HUNT; BRIAN D.
GRIFFIN, DEREK SCADDEN, Office of General Counsel,
United States Department of Veterans Affairs, Washington,
DC.
2 HANSEN-SORENSEN v. WILKIE
______________________
Before LOURIE, DYK, and TARANTO, Circuit Judges.

TARANTO, Circuit Judge.
Curtis L. Hansen served in the Army National Guard
for six years, which included, at the start of the service in
1959, a period of 182 days of active duty for training. Mr.
Hansen died from amyotrophic lateral sclerosis (ALS) in
1998. A decade later, in May 2009, his widow, appellant
Myrna Hansen-Sorensen, applied to the Secretary of
Veterans Affairs, the head of the Department of Veterans
Affairs (VA), for benefits under 38 U.S.C. § 1310(a), which
provides that “[w]hen any veteran dies after December 31,
1956, from a service-connected or compensable disability,
the Secretary shall pay dependency and indemnity compensation
to such veteran’s surviving spouse, children,
and parents.” As this case comes to us, Mrs. Hansen-
Sorensen sought to qualify based on the “serviceconnected”
language and rested that effort entirely on a
regulation adopted by the Secretary in 2008, which declares
that, with exceptions not applicable here, “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).
This appeal concerns whether Mr. Hansen’s active duty for training constitutes “active military, naval, or air service”—a phrase that, as relevant here, limits the scope of the ALS Rule and of the term “veteran” as used in § 1310(a). See 38 U.S.C. § 101(2) (“The term ‘veteran’ means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.”). The
phrase at issue has a statutory definition. 38 U.S.C. § 101(24). The Court of Appeals for Veterans Claims, in agreement with the Board of Veterans’ Appeals, held that
HANSEN-SORENSEN v. WILKIE 3

Mr. Hansen’s “active duty for training” service does not
qualify, and it denied the benefits claim on that basis.
Hansen-Sorensen v. Shulkin, 2017 WL 2062313 (Vet. App.
May 15, 2017). We have jurisdiction under 38 U.S.C.
§ 7292 to review the Veterans Court’s legal ruling. We
agree with the ruling, and we therefore affirm.
I
In 38 U.S.C. § 101(24), Congress set forth a definition
of “active military, naval, or air service”:
The term “active military, naval, or air service”
includes—
(A) active duty;
(B) 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 line of duty; and
(C) any period of inactive duty during which the
individual concerned was disabled or died—(i)
from any injury incurred or aggravated in line of
duty; or (ii) from an acute myocardial infarction, a
cardiac arrest, or a cerebrovascular accident occurring
during such training.
We held in Bowers v. Shinseki that the above provision’s separate treatment of (A) and (B) means that “active duty for training” does not come within “active duty.” See 748 F.3d 1351, 1353 (Fed. Cir. 2014). In
adopting that statutory interpretation, we did not mention
deference to the VA. Nor did we cite any authority on
deference, whether regarding statutory interpretation,
e.g., Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), or regulatory interpretation,
e.g., Auer v. Robbins, 519 U.S. 452 (1997). Based
on our interpretation of § 101(24), we held in Bowers that
the ALS Rule did not apply to a man who had served in
4 HANSEN-SORENSEN v. WILKIE

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. 748 F.3d at 1351–53.
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. It is undisputed
that Mrs. Hansen-Sorensen did not make the showing
that Mr. Hansen incurred or aggravated ALS during his
training or that he became disabled from ALS during that
period. Therefore, unless Bowers has somehow been
superseded, Mrs. Hansen-Sorensen’s claim fails.
II
Mrs. Hansen-Sorensen argues that Bowers has been
superseded—specifically, that it no longer controls after
the Secretary’s post-Bowers adoption of two regulations.
Like the Veterans Court, we are not persuaded. Neither
of the two regulations modifies the ALS Rule or Bowers’s
controlling interpretation of 38 U.S.C. § 101(24).
The first of the two post-Bowers regulations at issue
was adopted in 2015 and appears in 38 C.F.R.
§ 3.307(a)(6)(v) (C-123 Rule). Earlier, the Secretary had
provided, in a provision whose title referred (and still
refers) to “presumptive service connection,” that certain
diseases associated with exposure to certain herbicide
agents would be “considered to have been incurred in or
aggravated by service” under specified circumstances. 38
C.F.R. §§ 3.307, 3.307(a), 3.307(a)(6) (2014). In 2015, the
Secretary enlarged the class of covered individuals to
include, under specified circumstances, reservists who
HANSEN-SORENSEN v. WILKIE 5

had worked with a specific model of airplane (C-123) that
had been used to spray herbicides. Id. § 3.307(a)(6)(v).
The Secretary explained that the addition enabled specified
“individuals who were exposed to herbicides during
reserve service to establish veteran status for VA purposes
and eligibility for some VA benefits.” Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide, 80 Fed. Reg. 35,246, 35,246 (June 19, 2015). Under the rule, the specified individuals are presumed to have been exposed to a herbicide agent; “[s]uch exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C)”; and if a described individual develops a specified disease, “it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service.” 38 C.F.R. § 3.307(a)(6)(v).
The second post-Bowers regulation invoked by Mrs. Hansen-Sorensen was adopted in 2017 and appears in 38 C.F.R. § 3.307(a)(7) (Camp Lejeune Rule). Much as the C-123 Rule addresses individuals connected in specified ways with certain aircraft used for herbicide spraying, the Camp Lejeune Rule addresses individuals who spent
specified amounts of time at Marine Corps Base Camp Lejeune during the almost 35 years in which its water was contaminated. See Diseases Associated With Exposure
to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (Jan. 13, 2017). Under the rule, “[a] veteran, or former reservist or member of the National Guard” who had the specified time at Camp Lejeune in the period “shall be presumed to have been
exposed during such service to the [identified] contaminants,” unless affirmative evidence establishes otherwise.
Id. § 3.307(a)(7)(iii). In addition, “[e]xposure described in
paragraph (a)(7)(iii) of this section is an injury under 38
U.S.C. 101(24)(B) and (C)”; and if such an individual
develops a specified disease, “VA will presume that the
6 HANSEN-SORENSEN v. WILKIE

individual concerned became disabled during that service
for purposes of establishing that the individual served in
the active military, naval, or air service.” Id.
§ 3.307(a)(7)(iv).
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
HANSEN-SORENSEN v. WILKIE 7
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.
Although Mrs. Hansen-Sorensen has framed her challenge
as one based on an altered legal interpretation, she
has also suggested that the Secretary’s different regulatory
treatment of the ALS situation, on one hand, from the
C-123 and Camp Lejeune situations, on the other, is
arbitrary and capricious. This court is authorized to set
aside any regulation relied on by the Veterans Court that
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 38 U.S.C. § 7292(d)(1).
In various contexts, courts have recognized that treating
“like cases differently” can be arbitrary and capricious.
Kaiser Found. Hosps. v. Sebelius, 708 F.3d 226, 233 (D.C.
Cir. 2013); see, e.g., Nat’l Org. of Veterans’ Advocates, Inc.
v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1379–80 (Fed.
Cir. 2001) (explaining that an agency must have a reasonable
explanation for adopting two regulations that
implement virtually identical statutory language differ8
HANSEN-SORENSEN v. WILKIE
ently); NLRB v. General Stencils, Inc., 438 F.2d 894, 904–
05 (2d Cir. 1971).
But Mrs. Hansen-Sorensen has not made a persuasive
showing of arbitrariness on such grounds in this matter.
In particular, she has not shown that the ALS situation is
truly “like” the C-123 or Camp Lejeune situations. In the
latter two situations, the Secretary, based on empirical
studies, made a judgment about likely connections of
specific diseases to specific experiences involving likely
exposure to specific harm-causing chemicals (herbicides or
water contaminants). The exposures underlying those
two rules do not underlie the ALS Rule, which relies on
different empirical studies that the Secretary did not
treat as tying ALS to any specific harm-causing chemical
agent, use of specific equipment, or periods of time at a
specific location. See Presumption of Service Connection
for Amyotrophic Lateral Sclerosis, 74 Fed. Reg. 57,072,
57,072 (Nov. 4, 2009) (referring to 2006 report of the
National Academy of Sciences Institute of Medicine).
We have not been presented a focused, detailed examination
of the different empirical studies relevant to the
different situations that are the subject of the several
rules at issue. In this circumstance, we have no basis for
concluding that the Secretary cannot reasonably distinguish
the ALS situation from the C-123 and Camp Lejeune
situations in making judgments about whether to
declare categorically or to presume that specific diseases
or injuries were “incurred or aggravated in line of duty,”
or that certain individuals became disabled during specified
periods, under § 101(24)(B) and (C). In so concluding,
we express no view on what a different agency or judicial
record might reveal.
III
For the foregoing reasons, we affirm the decision of
the Veterans Court.
HANSEN-SORENSEN v. WILKIE 9
No costs.
AFFIRMED

 

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