from the United States Court of Appeals for Veterans Claims
in No. 15-2685, Senior Judge William A. Moorman.
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.
Lourie, Dyk, and Taranto, Circuit Judges.
Taranto, Circuit Judge.
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 "service-connected" 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).
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 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.
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"
(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.
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." See748 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
the National Guard, and had a period of "active duty for