this is a regulatory presumption regulation that allows persons who suffer from a l s to have presumptive service connection if their condition manifests any time after discharge at issue in this case is whether or not the lower court heard and its interpretation that imposed a veteran status requirement upon the application of this presumption in the regulation which has two sets out those persons that are covered by the regulations and indicates that it is when the condition is manifest at any time after discharge from active military naval or air service is sufficient to establish service connection for this disease in sub heart b of that regulation it describes those circumstances which exclude individuals from being covered by this regulatory presumption and it is b three that indicate that if the veteran did not have active continuous service of ninety days or more than they would not be eligible for this presumption in this case the lower court expressly found that mr bowers had served on active service for more than ninety consecutive days but it doesn't say active service right that the heart ace is active military naval or air serv that's correct so how is it that his national guard service qualified his national guard service did not qualify when he was called to active duty and served a period of active duty for six months eighteen days as shown by his d d two fourteen discard which is in the record at the joint appendix at age twenty three that is his period of active service expressively indicates that it was his total period of active service to read this regulation the way in which the v a proposes to read now is strictly exclusionary this regulation is intended to a compass of persons who had naval or air service to include reserve duty reserve training i don't believe that necessary in this case but isn't that phrase actually specifically defined in the statute yes additionally it doesn't encom training but that is not what this regulation covers this regulation expressly covers a condition that is developed or manifested at any time after discharge so the regulation does not pertain to circumstances which occurred but are if you will implied back to the period of active duty service for the purposes of entitlement to compensation what that's a tory authority do you think the secretary would i'm not sure that the in this case the interpretation of this regulation requires a determination of that question was doesn't it i mean if the secretary doesn't have statutory authority to act training not be a plop however this regulation was not framed in those terms to the contrary it was everybody but that's what i'm asking you is that it seems that the the logic of your argument is that we can ignore all th stuff because under the plain language of this regulation he company anyway but i don't see how the staff secretary would ever have the statutory authority to give national guard members that never qualify as a veteran veteran status what congress intended to do by limiting the scope of the compensation that would be affordable to persons who served in the reserves for periods of active duty for training is expressly the find in terms of whether or not a disease or an injury is incurred during that specific period this regulation does not pertain to that this regulation pertains to a condition which manifest after destructive sure but every a presumption of service connection for the presumption that the disease actually was caused by service under that same definitional standard if mr bowers had become symptomatic of a less while he was on his period of active duty for service he would qualify under that definition because diseases are not excluded and therefore you have to read this regulation in the full context and you have to assume this court most assume that the secretary acted within his authority to adopt the position that the government takes the government is saying that the secretary could do this but it couldn't do it the way  our argument i mean i think this is where i understand you're going if your argument that presumption is enough to make him qualify as a veteran under twenty four b one as written has active duty for training who is diagnosed with a last that occurred in the line of service be eligible for the presumption why isn't t status just the way mr carpenter said it right there at the end why doesn't this regulation apply to him even if he is not at this well it does not apply to him because congress is specifically mandated through passing thirty eight u s c one that only veterans can receive veterans disability claims and that's also seen in one one one zero and one of level thirty one which is the  four to follow your statutory argument and i think if i hear mr carpenter right he's saying but then the veterans administration extended this program be on the reach of the statute to include those who are were on active duty as reserve officers pointed out there is no authority actually for the veterans from the veterans affairs to extend out disability benefit benefits to individuals beyond which congress is mandated like me see my doctor case of a disability americans arguments would be to say that the department of veterans affairs is extending benefits to individuals which congress cannot receive benefits well but i guess maybe mr carpenter's argument is under one hundred twenty four b that national guard service when a person was called up into active duty for training moved them into the category of those who have active military naval or air service well active military naval air service doesn't do twenty four b your honor but must keep reading on twenty four being assessed any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred aggravated in the line of duty or why doesn't this presumption relate can suggest that he was disabled  saying you know he wouldn't know that that's circular we would be veteran status includes anyone who was in active military or naval air service which then itself includes somebody just like mr bowers at least during the period of time when he was called up for active duty during training i know only an individual who was injured longer is called up for active duty and well i guess the question is why doesn't the fact that he developed a less afterwards  qualify given the presumption as the board pointed out in the veterans court firm to there's no evidence that mr bowers with actually injured or a l s while he was in the service but i know too much more just ask this question but i need to ask again but didn't we assume that it happened there five virtue of the presumption the presumption has said doesn't matter when the onset is service there's references to veterans why it's so the presumption only applies to veterans one must first be a veteran to benefit from this presumption and this is consistent with one hundred one two and twenty four so here's a crazy hypothetical suppose that mr bowers was in fact lost part of a toe a foot or whatever during his active duty training you would then agree that he meets the definition of veteran correct  courthouse to decide whether one injury will make you a veteran for another injury i've looked at the veterans court cases there is some disagreement if you look at the smithy's construct the case it will show that perception should never attach whatsoever  a veteran who's been on active duty for training if you look at the biggest case which is in all the pretty things as well as a tally of all the opinions in the concurrences it appears that those judges would believe one injury would qualify you for jump the hoops there and say ah you're a veteran no we cannot iran to be skipping the first step to check to see whether he is a veteran whether perception should be plotted them it would be circular at that point you would  be provided why he just i don't i guess forget about what the statutes regs say you may be right may be wrong mr get perspective why does it make sense to distinguish for purposes of presumption prevail as between someone who's in the national guard and called up and serve side by side with someone who's an active duty the active duty guy by virtue of his exposure gets a lesser the presumption applies these benefits the guy standing right next to him happens to been a national guard guy who was called up in active service during the same time contracts the same disease but isn't covered just why would house agree with that hypothetical your honor if i signed up for the army and i went through basic training went through advanced training and at the end of my advanced training left the service and never actually had any active duty beyond training later develops at ls i would be in the same situation as mr powers i will only observe active duty for training and therefore the presumption would not apply to me so the line here that is being drawn is not between necessarily national guardsman and someone who is in our marines air force or the army or rather someone who served on active duty and someone who served on active duty for training also a person who's enlisted  and signed up for the regular military if they only serve go to boot camp and serve for training and then somehow leave or get washed out or something they don't qualify for veteran status they would only  training that's right and if you take a look at the one hundred one even further this is not a section of one of one that has come up and you have twenty one active duty court this case excuse me turns on the question of what the function is of this presumption and i believe the greater that you said it correctly that it is this presumption that makes him a veteran because he qualifies under the language of this presumption and this regulation because he manifested at a time after he had been discharged and he developed a  them together and and understand whether it was the intent of congress to create xclusive and that would cover the type of regulation that was written by the secretary the secretary wrote this regulation and could have imposed with the patients he imposed three and those limitations do not cover the circumstances in this case or quite frankly the circumstances of any person who serve in the car but isn't the presumption here it's just a presumption to show a sort of connection between his current that the and injury or disease incurred in service this is the different things i know sometimes that it's all but there's two different things going on here and in twenty four the aren't they talking about an actual injury or disease incurred in service that would qualify you as veteran status for active duty training  that i believe it is your honor because what this presumption does is that it relates back to active service during his period in which he was on active duty for training he had a period of service for more than ninety days now this obviously would not necessarily extend to a person in the guard who only serve we can because obviously he can't get ninety days of continuous service if he never has but for the ninety days i get in the service with the logic of what i mean what i'm trying to press you on is you think the presumption covers both the in service concurrence and the service connection is a presumption yes it does your honor support for that because i think we've been very critical in distinguishing between those two yes because it mirrors the statute and i believe it's thirty eight u s c eleven twelve which does essentially the same thing with a series of what are called chronic diseases and in those chronic diseases these are conditions just like this regulation contemplates that never were incurred during the period of active duty service the last war in fact manifest after this drop this regulation does exactly the same thing and it creates and heilman to service connected compensation that covers all of the elements of that in time because what congress did in eleven twelve was to cover a series of product diseases and put specific periods of time for the period of that presumptive period what this regulation does event that might have caused sales i'm sorry to the contrary one of the the diseases are all diseases that occur post service and relate back to service by the nature of that presumption this presumption by regulation merely mirrors that statutory presumption in none of those conditions do you have evidence of that chronic disease while on active duty but i do you have evidence of a specific at least in the radiation provides the in service injuriously radiation is actually covered under a different portion of that statutes but the chronic disease force and for instance psychosis or arthritis are conditions that simply did not develop during the period of active duty service but if they develop post service within the time periods provided for by congress then that condition is presumptively service connected the other thing that the statute does the regulation doesn't do is it requires a level of disability i believe it's manifested to a degree of ten percent or more this regulation has no such a requisite if you have the manifestation of a ls if it develops at any time of service to whatever degree you're entitled from that point of manifestation to compensation to jim did you sorry go ahead i guess i want to come back to what i think was probably the very first question judge has asked you which is still a threat anything very clearly in my mind and it is that congress to find by statute who qualified as a veteran and it seems clear to me that no mr powers doesn't meet that definition because he was not on active duty and nor was he injured or disabled during a period of active duty for training now so in order for me to go with you i have to believe that the secretary somehow had the authority through regulation to extend benefits to someone that didn't qualify by statute as a veteran now in this case we have the very governmental agency that in x the rigid regulations telling us that's not what it's regulation means it seems reasonable why wouldn't i give deference to that interpretation because in this case we have a discharge from active duty service there was six months of active duty service he received a duty to fourteen which acknowledged his total period of active service so you say he qualifies under twenty four a active duty i thought i understood you to say he qualifies under twenty four be in response to the question whether he did i said i believe he does under b but i believe you also does under  because in this case he has a discharge summary given a disk discharge paper that's what they give you when you have had an extended period of active duty service this was not just being called up for active duty for training they put him on active duty for six months eighteen days and i gave him a d v d perhaps i'm confused about the fact he was on active duty not active duty for training i thought i understood mr  the six months to be devoted to active duty for training honestly on i do not have any idea what the nature of what he did was other than what is d d to fourteen digit fourteen i've never seen one that says active duty for training am nor have i your so so and so if you go to the earlier the fact that so but that would render be entirely superfluous if i was going to accept your interpretation of the stat shoot and then anyone who's on active duty for training is also one active duty and there obligations you are subject to whole to active duty service and that active duty service can be extended beyond your normal two week training during the summer and in this case his was extended for a period of six months but then he receive training if it's training it's still training even if extended right it doesn't somehow convert it to active duty well i disagree your honor because the definition is that there is a release or discharge from service in the definition there is a discharge from service in this case i don't understand it the facts of this case is i understood it like he was on active duty training for an extended period of time because he completed his basic training and then within two an additional advantage during the whole upper advance it was all training i'm sorry i don't know i did not  let's assume that's correct because i think that's the right of the record if it's all active duty for training even if it's more than ninety days if it's six months and it doesn't even part of the active duty under twenty four a day of it it's still an active duty for remember which statutes in particular but under one hundred one two the term veteran means a person who served in active military naval or air service and who was discharged early there from but no but it's and mr critz doesn't help you i mean it sorry i think you know no your honor i think that's critical to this case because the question here becomes whether or not on its face this regulation as authored by the secretary does or does not provide the benefit contemplated and the benefit contemplated is for any person who served on active duty and i was discharged for more than ninety days is benefit of this regulation the question then to be resolved is is that somehow in excess of the secretaries of ford and the only way that it becomes in excess of the secretary's authority is if you read