one to define the term veteran to mean person a person who served in the active military naval or air service in section one zero one twenty four at a den of five three specific subcategories of such service again in september of two thousand and fifteen the secretary did rule making concerning whether or not reserve units reserve component members were entitled to presumption for exposure to agent orange when  their stateside duties in cleaning c one twenty three aircraft and reservists and guard members who were present at camp during a specified period were presumed to have been contaminated by the water at that facility these regulations rely upon a new interpretation of the phrase previously interpreted active military naval and air service these interpretations by the secretary cannot be limited to the reserve components who clean c one twenty three aircraft or reservists or guard members who were simply present at camp allusion these new interpretations remove any previous limitation that trims to the veteran status must be excluded and all individuals who served on active duty for training as well as in active duty for training must now be considered to be that are in the veterans court in the decision on appeal did not address this question under the existing rules of deference this court in powers deferred to the secretary's then interpretation of that phrase in mauer's this court deferred secretary's interpretation of the freyd phrase as excluding active duty for training service members and thus mr bowers did not qualify as a veteran for the same presumption that mr hanson seeks under three point thirty eight c f r three point three one eight if so what we have here is a situation in these two regulations where they the statutory language in there say that their presume to have become disabled during their period of service correct and saw well i'm not sure that's a different haven't done that here with respect to why is that it's arbitrary and capricious for them to do that with respect to the three situations that they did do it but not with  s because the substance of all three regulations are the same it is mere presence within active military service that causes the presumption  that's the question because it's to their current diseases or conditions correct the disease or conditions are different your honor but the qualification for compensation which mr hanson has been excluded from is based upon his non status as a veteran the v a in these subsequent regulations as confer the status of veterans on these individuals there is no rational basis for allowing the presumption in these two circumstances and not in the circumstance for a ls ls is a very generous  regulation that simply requires that it any time after a period of service for example your honor if there was an enlisted person who was serving at the exact same time that mr hanson was on active duty for training component members who clean c one twenty three were and in fact veterans and therefore entitled to that benefit and did the same thing for reservists and guard members who were simply physically present on the grounds of le june for a period of more than thirty days the circumstances are michael particularly in the camp le june situation and the camp le june situation is sixty days less time spent it is simply about the physical presence while on active military service and if you look back at the language of one a one twenty four it says the term active military enjoyed crankily your honor unless interpreted otherwise by the secretary and it has been interpreted otherwise by the secretary into regulations that were promulgated in the regulation was promulgated for a ls the secretary did expressly address the definition of veteran in terms of specifically including individuals in the two regulations subsequent in twenty fifteen and twenty seventeen the secretary did exactly that he specifically identify reserve component units that were cleaning stateside these aircraft that were involved in agent orange distribution and in the own identified both reservists and guard members and as a consequence he has now expanded that definition to say that any specificity is overcome in the language of the regulation based upon the uniquely late nick that affects of exposure which were largely unrecognized at the time of these statutory provisions were created referring to one hundred one twenty four but doesn't doesn't that language in i guess the point that judge day began with the uniquely latent effects particular exposures for particular conditions and the fact can regular or i guess a statutory limitation under one zero one twenty four b and c the incurred or aggravated in line of duty would be deemed to be met for those condition ns and those exposures doesn't logically imply anything particularly about a o s and different condition without the underlying  airplane or careful issue and exposure with respect are that's precisely what the secretary did when he promulgated three point three one eight he made those exact findings what he didn't do was to specifically identi fy people at or excuse me service members as other then veterans when the secretary acted in the way in which he acted in promulgating these two subsequent regulations he had to know that that interpretation was directly in opposition to the interpretation that he offered in the bower's case the bower's case only terms on this court now that interpretation is very different use the language of have the precise quote in my notes but i do believe that it was a question of the furring to the reasonable interpretation of what was meant by the term veteran and it's also important to note that in the regulation it is the duty or in active duty for training simply the phrase of those persons who served in active military or naval service but that phrase is not use in the regulation at three point three one eight the term that is used is merely the term that trained and the important language in that regulation is it says any veteran and in the language i think that the secretary injury that occurred only occasionally as a result of an event that happened during the training period in terms of the language here i do not think he could do so without being arbitrary to the extent that he excludes that same benefit under three point three one eight and the reason for that is is that the exact same analysis is used based upon the change in the understanding of medical science and judge or in the about our case it was specifically noted that the secretary published three point three one eight because medical studies indicated a statistical analysis between the activities and it is just the activities of military service and the development of a l s the secretary nonetheless determined that the proof of active military or naval service together with the development of a ls following service would be sufficient to establish the entire that's precisely what the secretary did in the agent orange expansion and  ma'am please the court would first like to address a couple of the issues raised by claiming appellant first of all these are two different situations and frankly three different situations we have the camp le june situation well we have in the notice and comment for the regulations we have references to the studies underlying the regulation so we have with regards to see one twenty three there was a study which had a correlation between these individuals who were serving on the c one twenty three s and we have with regards to the ls regulation there was a what do you understand to be the difference between the two regulations and well with regards to the two regulations campbell g m there are different presumptions so when the luzhin with an in c one twenty three when they wanted to have a presumption that exposure to contaminants or exposure and exposure to agent orange constitute an injury for the purposes of want to want twenty four they wrote that into the regulation that's specifically that language is the only regulation i don't think that's a distinction that they specifically wrote in the regulation why in terms of the interpretation of this language is there a difference between the two situations where they said they were going to presume that there was an exposure or a specific contaminant they're not pointing to the fact that for example agent orange was used in a certain place what they're saying was and they used the phrase there was limited  evidence of a correlation between military service and the onset of last and what they did was in accordance with really all the federal benefits statute for do service connection to people who were exposed during the training very even though they didn't actually manifest injury or correct because based v a looked at looked at the studies and what they're pointing to is the fact that there's evidence for example in camp was you in that there was dry cleaning fluid apparently dumped at or near the base and there's other heavy metals with regards to see one twenty three what there are what there are pointing to is the fact that on the c one twenty three airplanes that went back to the to the united states after having sprayed agent orange in vietnam that there's can there's  you know herbicides on those planes so they're pointing to specific exposures and exposure being the specific injury we don't have that with the last regulation and there's there's really nothing in the regulatory history pointing to something like that in service injury that you have with these other regulations and the v a the v a recognized you know that the definition of a veteran they put the s regulation which would be effective if we were to hold hypothetically the secretary had to extend the same treatment as  thousand in two thousand and nine and what what did the underlying scientific studies say i think you referred in passing not to any kind of correlation of the disease with any specific exposure but rather i think your link which was with military service correct that's be a little bit more specific if you're if the phrase that was used was there was when they surveyed it was a couple of different studies that there was limited and suggested evidence of association between military service and last the main study i think went back and looked at years of service for veterans who had served in the korean war world war two in what nobody has pinpointed in the scientific evidence is where is this coming from well you know even the cite for you know specific identifiable causes or the absence of them if the underlying studies do any kind of segregation by a length of service or in cedar service first as you know stateside service or anything that would suggest that the short answer is i don't know but i don't believe that's the case they were talking about years of service i don't think that they the results of those studies got down into a correlation between for example you know if there had been twenty years as opposed to five years whether that matter i think frankly they they weren't able to draw that specific correlation and just in general i think that the scientific evidence is just not very conclusive when there isn't the opposite situation with respect to the agent orange studies and in the campus studies to those shows that even that brief exposure could lead to lead a disability i believe the actual campus unit studies had more to do with not anything specific to these individuals as much more of these were the chemicals that were used and then based upon other scientific studies with regards to these particular chemicals what may happen and even as a result of a brief exposure right so here they i don't think they were able to draw a definitive line true thirty days and that's i think in the in the regulatory history the v a drew that line at thirty days because that was similar to the statue the camp which has more to do with health care but they were matching it up there i mean the basic i think rationale would be if somebody went to camp le june for one day just as a matter of common sense and logic there they're less likely if what we're talking about is exposure to drinking water contaminants in the drinking water they're less likely to to get a disease but i think overall it with regards to ls the general default is you know veterans themselves get the benefits and those who are just have national guard service do not also the other two regulations to those so that you need to have thirty days of exposure or to get the presumption or t that has a thirty day requirement i'm i'm not sure about the c one twenty three i think what they're we're talking about is there needs to be consistent consistent sort of that of the frequent service on the c one twenty three is based upon their service records but i don't think it's a specific number of days that regularly was operated maintained that center correct and i do we'd also like to respond a little bit to the powers case i mean i think just looking back at that case i don't i don't think it ever uses the word deference there it seems bowers is a precedent this court's directly on point and really what the court the panel there did was look at the plain language of the regulation in the right that in the individual benefits case aside from the large question of whether this is practical for any individual a claimant can try to prove the condition of what zero one twenty four b namely injury incurred or aggravated sort of line of duty certainly are there can always i mean you can you know have a direct benefits case where you can point to an injury and you know based upon the regular season three point three zero three you know if you can by the service records medical records i mean if you can show well it would have to be incurred and so for example for something like a last i mean there were there would need to be you know you would need to taking out the ls presumption but just talking about direct you know a direct service connection i mean they it's and then i think if you then were to look at the various other regulations at the v a has as promulgated i mean thirty eight c f r i think three point three zero three is is the one that talks about service connection and having it be coincident you know injury be coincident with with service but in this case just like these other two regulations what through a direct service connection claim looking at the facts from service records the other one is through various presumptions so in the camp lesion regulation there is presumptions that you know it's both saying that this exposure constitutes an injury and also that it was disabling at the time of service and that presumption it was and then with us even though it was a manifested but that's i mean the v m under its power under under you know five hundred one has the ability to you know provide these factual presumptions to to how certain certain individuals get their benefits which is what was happening with these two discrete distinct  groups of groups of individuals would you agree that in doing so then denying it of the payless that it has to be non arbitrary well i don't really see the connection really between i think there are two completely different scenarios and the fact that the v a can in one situation define an injury based upon a certain disease i don't think that really says anything about the death defining what that what the injury is with regards to with regards to else you'd have to be rational to the situation but when two kinds of situation well i mean i'm not sure if are we talking about upholding a challenge to three point three one and are we talking about a challenge to the camp was human regulation i mean really what sort of challenge to the it a rational basis for what they're doing they're providing it to veterans which in and of itself i mean i think is almost on its face rational and so i i think we would meet meet that standard police court there is no rational basis for the differing interpretations between these three regulations all three regulations involve presumptions all three regulations involve circumstances in which it is simply the physical  on in in your service and whether or not the definition under that but that's a that's a that's not really right that they see when twenty three require this whatever that phrase is we were for a regulator something condition in the three eighteen a l s is there well there is no other than physically being on duty that you were in the uniform and you were performing your services as a member of the military and that's what mr hanson was doing and there is no rational basis between saying he is not a veteran or a l s purposes for the presumption versus a person at camp was june who was simply on the camp at the top so the difference here is simply arbitrary in the view of affording the status of a veteran the regulations have decided that in the circumstances for agent orange exposure doing this cleaning was constituted service by a veteran that's what allows that reserve component to get the compensation the compensation is afforded under eleven ten but the veteran must have the status of being a veteran which is what is afforded to them in the interpretation relied upon of one a one twenty four in both the camp lagoon and the agent orange regulation that is not extended and afforded to mr hanson in three point three one ni