UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O .10-3399
K A Y M. B O W

E R S , A P P E L L

A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls (Arg ued Nove mber 14, 2012, De cided F ebrua ry 19, 2013)

Rebe cca C. Patrick

, of Amory , Mississ ippi, for the appe llant.
Jessica M. Swartz, with whom W ill A. Gunn, Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; and Kenneth A. W alsh , Deputy Assistan t Gene ral Counsel, all of Washington, D.C., wer e on the br ief, for the appe llee.
Be fore HAGEL , MOORMAN, and B ARTL EY, Judges

. HAGEL , Judge : Kay M. Bow ers appea ls throug h counsel a September 28, 2010, Boa rd of 1 Veter ans' Appea ls (B oard) decision that denied her late husband entitlement to benef its for amy otrophic latera l sclerosis. The Boa rd also denied Mr. Bow ers entitlement to benef its for car pal 2 tunnel sy ndrome of the left upper extremity , car pal tunnel sy

ndrome of the rig ht upper extremity ,

Mrs. Bo w ers is the w ido w of form er Arm y National Guard sm an Wayn e E. B ow ers, who died on Decem ber 1 30 , 2 01 0, pr ior to filinghis in itial br ief. On A pr il 19 , 2 01 1, the Court granted Mr s. B ow ers's m otio n to substitute.
A m y otro phic latera l sclero sis is 2

a m oto r neu

ro n disease m arked by pr ogressive degeneration of the neu ro ns tha t giv e rise to the
cor ticospinal tract and of the m oto r cells of the br ainstem and spinal cor d, resultin g in a deficit of up per and low er m oto r neu ro ns; it usu ally ends fatally w ithin tw o or three y ears. Called a l so Lo u Gehrig Disease and Charcot sy ndro m e.
D ORL A ND ' S I LL

USTR A TE D M EDI CA L D I CT I ONA RY 16 80 (3 2d ed . 2 01 2) [hereinafter D ORL A ND ' S ].P ey

ro nie' s disease, Dupuy

tren contractur e, bone spur of t he right elbow, left shoul der disabi l i t y , 3 4 and dy sarthria

. This appea l prese nts the first opportunity for the Court to consider the applicability 5 of the presumptio n o f s ervic e connec tion for amy otrophic latera l sclerosis provided in 38 C.F.R. § 3.318 (2012). As to the issues argued on appea l, the Court will aff irm the September 2010 Boa rd 6 decision beca

use the Boa

rd' s deter mination that Mr. Bow ers' s service on active duty for training did
not entitle him to the presumption of service connec tion for amy otro p h i c l at era l sclerosis under § 3.318 was not clea

rly err oneous , an d M rs
. Bowers fails to provide any leg al support for her constitutional arg ument, such that it does not war rant judicial c onsideration.

I. F ACTS Mr. Bow ers serve d in the Army National Guar d of South Carolina from M ar ch 1 9 7 2 to Marc h 1978, with a continuous period of active duty for training for more than 90 day s from Aug ust 1972 to Febr

uary 1973.

P ey ro nie' s Disease is " induration of the cor po ra cavernosa of the penis, pr od ucin g a painfu l fibrous chord ee 3 and p enile curvatu

re." D ORL

A ND ' S at 5 41

. Dupuy tren contracture is " a usu ally autosom al do m inant conditio n consistin g of flex ion contracture of a fin ger 4
ca us e d by shortenin g, thick enin g, and fibrosis of the palm ar fascia; som etim es it is associated w ith longs tanding epilep sy ." D ORL

A ND ' S at 4 10

. Dy sarthria is " a speech disor der consistin g of im per fect articulation d ue to loss of m uscu lar contro l after 5 dam age to the ce ntral orpe riphera l nervous sy stem ." D ORL A ND ' S at 5 75

. T hat regulation pro vides: 6 (a) Except as pr ovided in par agraph (b ) of this sec t i o n, t he d e velopm ent of am y otro phic lateral sclerosis m anif

ested at any

ti m e af ter discharge orrelease from active military, nava l, or air s ervice is su ff icient to estab lish

service co nn ection for that disease. (b ) Ser vice connection w ill not be established under this section: (1 ) If there is aff

irm ative evidence that am y otro phic lateral sclerosis w as not incu rre d during
oraggravated b y

active m ilitary , naval, or air service; (2 ) I f th ere is aff

irm ative evidence that am y otro phic lateral sclerosis is due to the veteran' s ow n w illf ul m isconduct; or (3 ) I f th e veteran d id not hav e active, c ontinu ous service of 90 da y s or m or e.
38 C.F.R. § 3. 31 8 ( em

phasis add ed)

. 2I n J uly 2009, Mr. Bow ers was diag nosed with amy otrophic latera l sclerosis. Record (R.) at 7 227. I n September 2009, he filed a claim for benef its for that co n d ition and sever al seconda ry conditions. I n a Nove mber 2009 ra ting de cision, a VA r eg ional office denied Mr. B ower s' s claim 8 for benef its for amy otrophic latera l sc lerosis. He filed a Notice of Disagree ment with that decision and ultimately

appea led to the B oard. I n September 2010, the Boa rd issued the decision on appea l. The Boa rd denied Mr. Bow ers' s claim for benef

its, on a presumptive basis, for amy otrophic latera l sclerosis because it found that there was no evidenc e that he experience d an injury or disease that was incurre d in or ag g ravated by his period of active duty for training and, thus, that period of training "doe s not q u alify as active milit ary service , and [Mr. Bow ers] does not achie ve veter an status for the purposes of his claim." R.
at 15. The Boa

rd also denied Mr. Bow ers' s claim on a direc t basis beca use there was no evidenc e of

rec ord demonstrating the incurre nce or ag g rava tion of that condition during his period of active duty for training and no evidenc e demonstrating that his c ondition is related to his period of active duty for tra ining. This appe al followed.

II. P ARTIES' ARG UMENTS On appea l, Mrs. Bow ers first asser ts that her husband was entitled to disability com p ensation benef its for amy otrophic latera l sclerosis beca use the Boa

rd misint erpr eted 38 C

. F. R § 3.318 and "did not meet its burden and provide the aff irmative evidenc e require d under subsections 1-3 of § 3.318(b) to overc ome the presumption [of service connec tion for amy otrophic latera l sclerosis]." Appellant' s Br ief (B r.) at 5. Mrs. Bow ers further asser ts that the plain lang uag e of § 3.318 is c lear : there is "no re fer ence to the veter an' s status othe r than having had active, continuous service of 90 day s or more." Appellant' s Br

. at 7-8. M rs
. Bow ers next contends that the Court's holding in Biggins v. Derwinski , 1 Vet.App. 474, 477 (1991), that a claimant was not entitled to the p r esumption of service connec tion for multipl e sclerosis beca use there was no evidenc e tha t a d is e a s e

T he Court notes that the par ties use the abb reviation " A LS " w hen referring to " am

y otro phic lateral sclerosis" 7 in their br iefs

. How ever, beca use § 3.3 18 uses the fu ll nam e of the disease, the Court w ill also use the fu ll nam e for the purp oses of this opinion.
A t or al argum ent, Mrs. Bo w ers clarified that all of the other disabilities identified w ere inclu ded as secondar y 8 to amy otro phic latera l sclero sis. 3or injury was incurre d in or ag g ravated by the claimant's period of active duty for training , is

distinguishable fr o m the case at hand. Finally , she argues that the Boa rd impermissibly and unconstitutionally discriminated aga i n s t Mr. Bow ers when it deter mined that § 3.318 was not for application in this case. The Secre tary disputes eac h of these arguments. First, he argues th at t h e Boa rd proper ly deter mined that Mr. Bow ers was not a "ve t er an " fo r t h e purposes of VA disability compensation benef its and, thus, Mr. Bow ers was not elig ible for the presumption of service connec tion for amy otrophic latera l sclerosis under § 3.318 as a matter of law. Second, the Secre tary ag ree s that the lang uag e of § 3

. 318 is clea r, but that this languag e indisputably restric ts the applicability of the amy otrophic latera l sclerosis presumption to those who had "a ctive milit ary , naval, or air service ," which Mr. B ower s' s active duty for tra ining doe s not qualify as under 38 U.S.C. § 101(24). Third, he argues that Biggins controls the outcome here beca use veter an status is a predic ate for elig ibilit y for VA disabili t y co m pensation benef its. L astly , the Secre tary argues that the Boa rd did not impermissibly discriminate ag ainst Mr. Bow ers when it deter mined that § 3.318 was not applicable ; it was mere ly

applying the law to the fa cts.

III. ANALYSIS A. Amy otrophic L ater al Sclerosis As an initial matter, althoug h Mrs. Bow ers argues that this case is one of statut o ry an d regulatory

interpre tation that the Court must review de novo, see 38 U.S.C. § 7261(a)(1) ; Smith v. Gober , 14 Vet.App. 227, 230 (2000), a deter mination of entitlement to be nefits g ener ally involves finding s of fac t, whi ch the Court revie ws under the "c lear ly err oneous" standard of revie w. See 38 U. S

. C

. § 7 2 61(a) (4); Pentec ost v. Principi, 16 Vet.App. 124, 129 (2002); Russo v. Brown , 9 Vet.App. 46, 50 (1996). "A fac tual finding ' is "c lear ly err oneous" when althoug h there is evidenc e to support it, the revie wing court on the entire evidenc e is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski , 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gy

psum Co. , 333 U.S. 364, 395 (1948)).

41. Veteran Status

For VA purposes, the term "ve tera n" is define d as "a person who serve d in the active military, naval, or air service , and who was d i s ch ar g ed or rele ased there from under conditions other than dishonorable." 38 U.S.C. § 101 (2) (empha sis ad d ed ); 3 8 C.F.R. § 3.1(d) (2012). The Boa rd explained that Mr. Bow ers' s period of active duty for training d i d n o t q u alify as active milit ary service beca

use the evidenc e of rec ord, including Marc h 1972 and J anuar y 1976 repor

ts of medical history indicating that Mr. B ower s was in "g ood health" and reports of m edica l examination from those same months that reve aled no abnorma lities except a tattoo, R. at 13, does not demonstrate that "he was disabled from any injury during [active duty for training ] .

. . or that he was disabled from

a disease during [active duty for training ]." R. at 13; see 38 U.S.C. § 101(24)( B) (stati ng that the
term "a ctive milit ary , naval, or air service " includes, among other things, "a ny period of active duty for training during which the individual conce rned was disabled or died fr o m a d i s ea s e or injury incurred or aggravated in [ the ] line of duty" (empha sis added) ); see also 38 U.S.C. §101(22) (stating that the term "a ctive duty for training " includes full-time du t y i n t h e Army National Guar d); 38 C.F.R. § 3.6(a) (2012). Acc ording ly , the Board c oncluded that, be cause "the evidenc e of r ecor d does not establish that [Mr. Bow ers] was disabled from any injury [or disease] during [active duty training ,]" nor had Mr. Bow ers identified any such evidenc e, he was not a veter an for the purposes o f h i s cl ai m
. See 38 U.S.C. §§ 101(2), (22), (24) (explaining that, in the absenc e of such evidenc e, a period of active duty for training does not qualify as "a ctive milit ary , naval, or air service ," and that an appellant does
not qualify as a "ve tera

n" by virtue of a period of active duty for training alone) ; 38 U.S.C. § 1110; Acc iola v. Peak

e , 22 Vet.App. 320, 324 (2008) (citing Merc ado-Martinez v. W est , 11 Vet.App. 415, 419 (1998)) ; Paulson v. Brown , 7 Vet.App. 466, 470 (1995). Be cause the Boa rd conclude d that Mr. Bow ers had not attained veter an status, it found that presumptive s e r v ice connec tion for amy otrophic latera l sclerosis was not possible. See Smith v. Shinseki , 24 Vet.App. 40, 45-48 (2010) (stating that 9 presumptions of service connec tion cannot apply t o cl ai mants whose claims are based only on a

T he Court notes that Mrs. Bo w ers, in her br ief, argues that the Bo ard failed t o e st a b l i sh by " aff irm ative 9 evidence" that pr esum

ptive service connection for am y otro phic lateral sclerosis cannot be establis h e d. How ever, beca use the Bo ard deter m ined that Mr. Bo w ers had not atta i ned veteran status , the pr esum ptio n of service connection for
am y otro phic latera l sclero sis w as not for a pp lication as a matter of law ; thu s, the Bo ard w as not req uired to reb ut it.
5period of active duty for training ); Acc iola , 22 Vet.App. at 32 (holding that a presumption of service

connec tion is inapplicable without previously est ab l ished veter an status (citing Biggins , 1 Vet.App. at 478)). The Boa rd next considere d whether Mr. Bower s wa s enti tled to benef its for amy otrophic latera l s cl er o s i s on a direc t basis and deter mined that, althoug h he had a curr ent diag nosis of amy otrophic lateral s cl erosis, there was no evidenc e of rec ord demonstrating the incurre nce or agg ravation of that condition during his period of active duty for training and no ev i d en ce demonstrating that his condition i s re l at ed to his period of active duty for training

. See 38 U.S.C. § 1110 (explaining that direc t service conne ct i o n fo r VA disability compensation purposes is established when the rec ord befor e the Secre tary contains lay or medical evidenc e of (1) a curr ent disability , (2) incurre nce or ag g ravation of a disease or injury in service , and (3) a nexus betwee n the in-servic e injury or disease and the curr ent disability); see also Davidson v. Shinseki , 581 F.3d 1313, 1315-16 (F ed. Cir. 2009); Shedden v. Principi , 381 F.3d 1163, 1166-67 (F ed. Cir. 2004); 38 C.F.R. § 3.303 (2012). A revie w of the Boa

rd' s decision reve als that the Boa rd considere d the rele vant laws and regulations when it deter

mined that Mr. Bow ers was not a veter an for the purposes of his claims, see Struck v. Brown , 9 Vet.App. 145, 152-53 (1996) (holding that the Boa rd' s deter mination of "ve tera

n status" is a question of fac t that is subject to the "c lear ly err oneous" standard of revie w), and did not clea rly err in finding that he was not entitled to benef its for amy otrophic latera l sclerosis, see Russo , 9 Vet.App. at 50. T h e Bo ar d also provided an adequate statement of rea sons or bases for its deter mination. 38 U.S.C. § 71 04(d)( 1); see Gilbert v. Derwinski , 1 Vet.App. 49, 57 (1990) (explaining that the Boa

rd' s statement of rea sons or bases must be adequa te to enable a claimant to understand the prec ise basis for its decision, as well as t o fa ci l itate revie w in this Court). After revie wing the entirety of the rec ord and the arg uments raised both in the parties' briefs and at oral argument, the Court conclude s that there is a plausible basis for the Boa rd' s finding s and is not "' left with the definite and firm conviction that a mistake has been committed.'" Hersey , 2 Vet.App. at 94 (quoting U.S. Gypsum Co. , 333 U.S

. at 3 9 5 ))

. Acc ording ly , the Boa rd' s deter mination that Mr. Bow ers was not a "ve tera n" for VA disability compensa tion purposes is not clea rly err oneous.

62. Applicability of Biggins

Mrs. Bow ers argues t hat t he C ourt' s decision i n Biggins is not applicable here beca use her

case is "c ontrolled by

differ ent re gulations with differe nt require ments." A ppellant' s Br

. at 7. She does not, howeve r, challeng e the holding in Biggins ; she seeks only to distinguish that case from her

own. At issue in Biggins was the presumption of service connec tion for multipl e sclerosis, which provides that multipl e sclerosis that manifests to a disabling deg ree of 10% or more within seven y ear s from the veter an' s separ ation from service is presumed to have been incurre d or ag g ravated in service

. 38 U.S

. C

. § 1 1 1 2 (a)(4) (for merly 38 U.S.C. § 312(a) (4)) ; Biggins , 1 Vet.App. at 475. Congr ess ena cted the statute cre ating that presumption, thus binding the Secr etar y , to alleviate the problems of proving in-servic e incurre nce or ag g ravation of multipl e sclerosis, a condition that may

rema in undetec ted for many y ear s afte r incurre nce. See S. R E P

. N O

. 87-1806, at 5 (1962); H.R. R E P

. N O

. 87-1469, at 5 (1962). Be ca u se t he claimant in Biggins only serve d on active duty for training and could not demonstrate that she was disabled from a disease or injury during her period of active duty for training, the Court deter mi n ed that, as a matter of law, she was not entitled to the benefit of the statutory

presumption of ser

vice c onnection for

multipl e scle rosis. 1 Vet.App. at 478. Mrs. Bow ers asser

ts that Biggins is distinguishable from this case beca use the statute at issue in Biggins specific ally

require s that vetera

n status be established, whe rea s the [amy otrophic latera l sclerosis] presumption is a fre e-standing reg ulation, having no relation to the chronic disea ses identified by Congr ess in 38 U.S.C. § 1112, and the plain lang uag e of the [amy otrophic latera l sclerosis] regulation does not r equire that the individual establish veter an status befor e the presumption of service
connec tion is applied. Appellant' s Br

. at 8. Howeve r, it is axiom atic that, to rec eive VA disability compensation benef its, a claimant must first establish veter an st atus. See Cropper v. Brow n , 6 Vet.App. 450, 452 (1994). Moreove r, the Court has held that, absent established vet er an s t at us, presumptions of service

connec tion are not applicable

. See Smith , 24 Vet.App. at 45-48; Acc iola , 22 Vet

. Ap p
. at 32. Although Mrs. Bow ers arg ues that these ca s es are not applicable to the presumption of service

connec tion for amy otrophic latera l sclerosis, she prese nted no deciphe rable argument in her brief in support of this c ontention. A t or al argument, howeve r, Mrs. Bow ers' s argument was more ref ined.

7At oral argument, Mrs. Bow ers argued that the presumpti on of service connec tion for

amy otrophic latera l sclerosis is based on a regulation and not a statute; thus, the Secre tary has, in his discretion, sele cted the pr esumptive period without the i nput of Cong ress. More over, she asser ted that neither Congr ess n o r t h e Secre tary set a presumptive period following service within which amy otrophic latera l sclerosis must develop; rathe r, amy otrophic latera l sclerosis may develop at any time following the requisite per iod of servic e and be considere d presumptively service connec ted. Compare 38 C.F.R. § 3.318(a) (" [T] he development of amy otrophic latera l sclerosis manifested at any time afte r discharg e or rele ase from active, milit ary , naval, or air service is sufficie nt to establish service connec tion for that disea se." ) (e mphasis added) , with 38 C.F.R. § 3.307 (a) (3) (expl aining that m u l t i p l e sclerosis "must have become manifest to a deg ree of 10 [%] or more within

. . . 7 y ear s")

. She there fore contends that, the presumption of service connec tion for amy otrophic latera l sclerosis is not based on when the dise ase w as incurr ed, but ra ther on how long a claimant serve d, reg ardle ss of how that service is define d. I n other words, Mrs. Bow ers argues that the Secre tary has deter mined that a presumption of ser vice c onnection for amy otrophic latera l sc lerosis is ne cessa ry beca use that disease has been linked to the rig ors of milit ary service it s el f, n o t to the incubation period of the disease. See 73 Fe d. Reg

. at 54691 (explaining that studies indicate that there exis ts a statistical corre lation betwee n milit ary service and deve lopment of amy trophic later al scler osis). Although Mrs. Bow ers argues that, beca use Mr. Bow ers serve d, acc ordin g to his DD For m-214, R. at 365, on "a ctive service " for more than 90 consec utive day s, he is entitled to the presumption of service connec tion for amyotrophic later al scler osis, the Secre tary has limited that presumption to only those who serve d 90 consec utive day s of " active milit ary , naval, or air service ," 38 C.F.R. § 3.318 (empha sis added)

. As explained above, this lang uag e implies a require ment that the i ndividual attain veteran status, in that the s tatutory definition of "ac tive milit ary , naval, or air service " excludes those who have serve d on active duty for training reg ardle ss of the leng th of that service –unless it can be shown that "the individual c oncer ned was disabled or

died from a

disease

or injury incurre d or ag g ravated" during that period of active duty for traini n g. 3 8 U.S .C. § 10 1 (24)(B)

. Thus, even though Mr. Bow ers serve d on "a ctive service " for more than 90 consec utive day s, R. at 365, he is not entitled to the presumption of service connec ti on for amy otrophic latera l sclerosis beca use he is not a veter an for VA disability compensation purposes.

8Moreove r, contrary to Mrs. Bowe rs' s contention, § 3.318 expressly ref ers to a "veter an" in
two place s, stating that service connec tion will not be established "[i]f there is aff irmative evidenc e that amy otrophic latera l sclerosis is due to the vete ran's own willful misconduct[, or] if the vete ran does not have active, continuous service of 90 day s or more." 38 C.F.R. § 3.318(b)( 2)-( 3) (empha sis added) . Thus, Mrs. Bow ers' s argument is premised on an inc omplete re adingof the re g ulation. Ba sed on these arguments, the C o u rt co ncludes that Mrs. Bow ers has failed to car ry her burden of demonstrating that the Boa rd clea rly err ed in finding that Mr. Bow ers was not entitled to the benef it of the presumption of service connec tion for amy otrophic latera l sclerosis. See Hilkert v. W est , 12 Vet.App. 145, 151 (1999) (en banc ) (h o l d i n g that the appellant has the burden of demonstratingerr or), aff'

d per curiam , 232 F.3d 908 ( Fe d. Cir. 2000) (table)

. The Court is sy

mpathetic to M rs. Bowers' s perc eption that it is unfair to exclude from thi s pre s u m p t i o n those whose service was limit ed to active duty for training

. As this Court has

rec og nized, howeve r, and as the Fe dera l Circuit has reminded us, the Secre tary has discretion in making many deter

minations reg arding the availability of VA benef its. See Haa s v. P eake , 525 F.3d 1168, 1197 (F ed. Cir. 2008) (upholding the Secre tary ' s interpre tation of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a) (6)( iii) as requiring prese nce on the landmass or inland water s of Viet Nam for e ntitlement to a statutory presumption of ser

vice c onnection for

exposure to cer

tain herbic ides beca use VA, as the implementing ag ency , maintains discretion to rea sonably define that which Congr ess has not). By using the specific and statutorily define d phrase "a ctive milit ary , naval, or air service " to identify who is elig ible for benef its under § 3.318, the Secre tary has decide d to limit the application of this presumption to those who qualify as veter ans under 38 U.S.C. § 101(2), in eff ect excluding those whose active service is solely define d as "a ctive duty for training ," reg ardle ss of the leng th of that service , unless "the individual conce rned was disabled or died from a disease or injury incurre d or ag g ravated" there i n
. 38 U.S.C. § 101(24)( B)

. "B ut just beca use some instances of overinc lusion or underinc lusion may arise does not mean that the lines drawn [by VA] are ir rational," Haas , 525 F.3d at 1193, and Mrs. Bow ers fails to persua de the Court that § 3.318 conflicts with any

9statutory require ments. Moreove r, reme dying this situation is beyond the Court's power ; we may 1 0
not rewrite a regulation that was lawfully implemented and is a rea sonable exercise of the rulemaking authority deleg ated to the Secre tary by Congr ess. See Smith v. Nicholson , 451 F.3d 1344, 1349-50 (F ed. Cir. 2006) (citing Auer v. Robinson , 519 U.S. 452, 461- 62 (1997)) . Rather, it is left up to either the Sec reta

ry to modify his r egulation if he sees fit or to Cong ress to c onsider whether
to enac t leg islation expanding the class of former service members elig ible to rec eive VA disability compensation benefits pre sumptively for amy otrophic later al scler osis. To the extent that Mrs. Bow ers asser ts that the plain lang uag e of § 3.318(b)( 3) makes "c lear that an indi vidual is only disqualified if the individual' s active service was not continuous, lasting 90 day s or more," Appellant' s Br

. at 8 (empha s i s i n orig inal), her argument lacks merit. First, as discussed above, the Boa rd does not dispute that Mr. Bow er s s erve d a period of active duty for training that lasted at least 90 day s. I n fac t, the Board specifica lly ackn o wl edg ed that Mr. Bowers

serve d a period of active duty for training from "Aug ust 1972 to Fe bruar y 1973" and "did not have 90 day s of continuous service at any other time." R. at 11. Moreove r, Mrs. Bow ers fails t o

ac k n o wl edg e that subsection (b)( 3) of § 3.318 is not, in fac t, the only disqualification for presumptive service connec tion for amyotrophic latera l sclerosis. Subsections (b)( 1) and (b)( 2) also disqualify claimants "[i]f there is aff irmative evidenc e that amyotrophic latera l sclerosis was not incurre d during or ag g rava ted by active military, naval, or ai r s er vi ce [ ,or] if there is aff irmative

e v ide nce that amy otrophic latera l sclerosis is due to the vete ran's own willful misconduct." 38 C. F

. R. § 3.318(b)( 1),(2) (empha sis added)

. Ag ain, beca use Mr. Bow ers did not establish veter an status, he is not entitl ed to this presumption.

Mrs. Bo w ers also contends that the Bo ard ' s deter m ination is inconsis tent w ith the resear ch un der ly ing the 1 0 Secretar y ' s decisio n to im

plem ent an am

y otro phic lateral sclerosis pr esum ptio n. A pp ellant' s Br

. at 9-10

. How ever, Mrs. Bo w ers pr ovides no suppor t for the contention that the Bo ard has t he duty , m uch less the auth or ity , to review VA regulations f

orcom pliance w ith un der ly ingresearch. See Rollin gs v. Brown , 8 Vet.A pp . 8, 12 (19 95 ) (explainin g that the Bo ard m ay not substitu te its ow n m edica l j udgm ent for independe nt m edica l evidence); Kern v. Brown , 4 Vet.App. 35 0, 35 3 (1 99 3) (explaining that the app ellant' s attorney w as " not qualified to pr ovide an explanation of the sig nif icance of the clinical evidence" ); see also Locklea r v. Nicholso n , 20 Vet.App. 41 0, 41 6-17 (2 00 6) (explaining that the app ellant m

ust pr ovide reaso ns for his argum ent); Eva ns v. W est , 12 Vet.App. 22, 31 (1 99 8) (stating the Court w ill giv e no co nsi der ation to a " vague assertion" or " un suppor ted c ontention")

. 103. Constit utionalit y of 38 C.F.R. § 3.318 as Applied to Mrs. Bowers Finally , Mrs. Bow ers challeng es the constitutionalit y of 38 C.F.R. § 3.318, explaining that "[t]he root of this problem is the interpre tation of 38 U.S.C. §101(24)( B) and the application of that interpre tation." Appellant' s Br

. at 11. She further asser ts that "the re is no rational basis for the Secre tary to discriminat e ag ainst Mr. Bow ers and deny him the benef it of the presumption." Appellant' s Br . at 13. 1 1 As previously discussed, § 3.318 applies t o cl ai m ants whose amy otrophic l ater al s cler osis "ma nifested at any time afte r discharge o r release from active military, naval, or air service

. " 38 C.F.R. § 3. 3 1 8 (a ) (empha sis added)

. Contrary to Mrs. Bow ers' s asser tions, § 3.318 does not specif i ca l l y d istinguish betwee n those who serve d periods of active duty and those who serve d periods of active duty for training ; it mere ly provides that "a ctive milit ary , naval, or air service " must be established befor e presumptive service connec tion for amy otrophic latera l sclerosis can be g rante d. The phrase "ac tive milit ary , naval, or air ser vice" is defined as "a

ny period of active duty for training during which the individual conc er n ed wa s disabled or died from a disease or injury incurred or a g

gravated in the line of duty ." 38 U.S.C. § 101(24)( b) (empha sis added) ; see also 38 C.F.R. § 3.6(a)

. Acc ording ly , it is not the regul at i o n itself that makes the distinction to which Mrs. Bow ers objec ts, it i s the statute that def ines " active military , naval, or air ser vice

. " To the extent that Mrs. Bow ers intended to argue that section 101( 24) ( b) is unconstitutional

as applied to her husband, she fails to offe r a coher ent argument for that proposition. See Appellant' s Br

. at 11-14; Cit

y o f C leburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439-42 (1985) (explaining that, to demonstrate a constitutional violation, unless it involves a s u s p ec t or quasisuspect cla ss or fundamental right, the appellant must show that the requirement at issue does not bear a rational relationship to a legitim at e go vernme nt interest); see also Robinson , 9 Vet.App. at 401. Furt h er , wh en questioned about this theory at oral argument, Mrs. Bow ers' s counsel stated

T he Court notes that, in her br ief, Mrs. Bo w ers argues a constitutional violation un der the Fourteenth 1 1 A m endm ent of the U.S. Cons tituti on; how ever, the Fourtee nth Am endm ent is only

ap plicab le to the states, not t o VA , a federal agency
. Claim s of discrim ination therefore m ust be add ressed as a vi o lation of due pr ocess un der the Fifth A m endm ent, w

hich applies to the federal governm ent. See Rob inson v. Brown , 9 Vet.App. 39 8, 40 1 (1 99 6) (" In 19 54 , the United States Suprem e Court w ro te : '[ W hi l e ] [t]he Fif

th A m endm ent

. . . do es not [spec ifically ] contain an equal pr otectio n c lause as do es the Fo urteenth A m endm ent which app lies only to the states [ , ]

. . . discrim ination m ay be so un j ust ifiable as to be violative of due pr ocess.'" (q uoting Bollin g v. Sh arpe , 34 7 U.S. 49 7, 49 9 (1 95 4) ))( alteratio ns in
or igin al).
11without equivocation that there was no leg al authority to support her p o s it io n
. A ccor dingly , the Court

finds that Mrs. Bow ers' s argument is too underde veloped to merit consideration. See Brewer v. W est, 11 Vet.App. 228, 236 (1998) (explaining that the Court need not consider "me re asser tions of constitutional impropriety for which [t he appellant] has not provided any leg al support" (citing Gov't & Civic Employe es Organizing Comm., CIO v. W indsor , 353 U.S. 364, 366 (1957) (" Fe dera l courts will not pass upon constitutional contentions prese nted in an abstract ra t her than in a concr ete form." ))) ; see Helfer v. W est , 174 F.3d 1332, 1335 (F ed. C ir. 1999) (holding t hat to the ex tent the claimant has simply put a "due proce ss" label on his contention that he should have preva iled on his claim, the cla im is constit utional in name only ). B. O ther Claims The Boa rd also denied Mr. Bow ers entitlement to benef its for car pal tunnel sy

ndrome of the left upper extremity , car pal tunnel sy

ndrome o f t h e ri gh t upper extremity , Pey ronie' s disease, Dupuy tren' s contra cture , bone spur of t he right elbow, left shoul der disabilit y , and dy sarthria on a direc t basis, and stated that [t ]he issue of whether service connec tion for [t hose] disabiliti es is war rante d on a seconda ry basis is not befor e the Boa rd as it has not been adjudicate d by the [reg ional office ]. N e v e r

th e le s s , service connec tion seconda ry to [amy otrophic latera l sclerosis] may not be g rante d as a matter of la w as [Mr. Bow ers] is not service- connec ted for [amy otrophic later al scler osis]

. R. at 21. At oral argument, Mrs. Bow ers' s counsel made clea r that she was not appea ling the Boa rd' s deter mination that Mr. Bow ers was n o t entitled to benef its for those disabiliti es on a direc t basis; thus, the Court conclude s that Mrs. Bow ers h as ab an d o ned any appea l of those issues and will there fore not addre ss them. See Carbino , 168 F. 3 d at 34; Grivois , 6 Vet.App. at 138. I nsofar as 1 2

A lso at or al argum ent, Mrs. Bo w ers's counsel stated that she w as not app ealing the Bo ard ' s fin ding regard ing 1 2 entitlem ent to VA

co m pensation benefits f

oram y otro phic latera l sclero sis on a dir ect basis. T hu s, s he has abando ned her app eal of that issu e and the Court w ill not add ress it. See Carbino v. W est , 16 8 F.3d 32 , 34 (Fed

. Cir. 19 99 ); Grivois v. Brown , 6 Vet.App. 13 6, 13 8 (1 99 4) (holding that issu es or claim s not a rgued on app eal are considere d abando ned). M o r e o ve r , t he Secretar y asserts that any claim s that the Court deems abando ned on app eal shoul d be dism issed. See Oral Argum ent at 53 :00 , Bowers v. Sh ins e ki , U.S. Vet. A pp
. No. 10 -339 9 (Argu ed Nov. 14 , 20 11 ),
ava ilab le at http://w

w w .uscourts.cavc.gov/oral_ argum ents_audio.p hp. How ever, th at issue w as not raised below or in the br iefin g and w as pr esented for the first tim e at or al argum ent, therefore w e w ill not add ress it. See Carbino , 16 8 F.3d at 34 ; Gr ivois , 6 Vet.A pp . at 13 8; McFarlin v. Conseco Servs., L.L.C. , 381 F .3d 1251 , 126 3 (11 th Cir.20 04 )

12Mrs. Bow ers' s counsel asser ts that entitlement to benef its fo r those conditions is war rante d as seconda ry to amy otrophic latera l sclerosis, her argument must fail. As previously explained in Part A above, the Boa

rd did not commit cl ea r er ro r in denying Mr. Bow ers entitlement to benef its for amy otrophic latera l sclerosis. Moreove r, the Boa rd adequately explained that entitlement to benef its seconda ry to amy otrophic latera l sclerosis was not proper ly befor e it and even if it was, such benef its

are not available , as a matter of law, wher e a claimant has not first es t ab l i s h ed entitlement to disability compensation benef its for the primary disability

. See Allen v. Brown , 7 Vet.App. 439, 448 (1995) (en banc) (expla i n i n g that seconda ry service connec tion is available when a claimant' s disability is either (1) due to o r t h e re s u l t of a service -conne cted disabili ty , or (2) ag g rava ted by a service -conne cted disability); 38 C.F.R. § 3.310 (2012).

III. CONCLUSION Upon considera

tion of the fore g oing, as to the issues argued befor e the Court, the September 28, 2010, Boa

rd dec ision is AFFI RMED.

(" A pa rty is not allow ed to r aise at o ral ar gu m ent a new

issu e for review " ).
13