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Hansen-Sorensen v. Wilkie

United States Court of Appeals, Federal Circuit

December 11, 2018

MYRNA HANSEN-SORENSEN, Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

          Appeal 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.

          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 "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).

         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 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." 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 ...


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