United States Court of Appeals 

for the Federal Circuit ______________________ 

MYRNA HANSEN-SORENSEN,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-2418

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 15-2685, Senior Judge William A. 

Moorman.

______________________ 

Decided: December 11, 2018 

______________________ 

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. 
2 HANSEN-SORENSEN v. WILKIE

 ______________________ 

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. HansenSorensen sought to qualify based on the “serviceconnected” 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 
HANSEN-SORENSEN v. WILKIE 3

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.” See 748 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 
4 HANSEN-SORENSEN v. WILKIE

the National Guard, and had a period of “active duty for 

training” but not “active duty,” where his widow had not 

shown that her late husband’s ALS was incurred or 

aggravated in the line of duty. 748 F.3d at 1351–53. 

Under Bowers, for Mrs. Hansen-Sorensen to meet the 

“active military, naval, or air service” requirement of the 

ALS Rule, she had to show that Mr. Hansen, who had 

only active duty for training, “incurred or aggravated” his 

ALS “in line of duty” and “was disabled” “during” his

period of active duty for training. 38 U.S.C. § 101(24)(B). 

In the absence of such a showing, the threshold requirement of the ALS Rule is not met, and no presumption of 

service connection arises under that rule. It is undisputed 

that Mrs. Hansen-Sorensen did not make the showing

that Mr. Hansen incurred or aggravated ALS during his 

training or that he became disabled from ALS during that 

period. Therefore, unless Bowers has somehow been 

superseded, Mrs. Hansen-Sorensen’s claim fails. 

II

Mrs. Hansen-Sorensen argues that Bowers has been 

superseded—specifically, that it no longer controls after 

the Secretary’s post-Bowers adoption of two regulations. 

Like the Veterans Court, we are not persuaded. Neither 

of the two regulations modifies the ALS Rule or Bowers’s 

controlling interpretation of 38 U.S.C. § 101(24). 

The first of the two post-Bowers regulations at issue

was adopted in 2015 and appears in 38 C.F.R. 

§ 3.307(a)(6)(v) (C-123 Rule). Earlier, the Secretary had 

provided, in a provision whose title referred (and still 

refers) to “presumptive service connection,” that certain 

diseases associated with exposure to certain herbicide 

agents would be “considered to have been incurred in or 

aggravated by service” under specified circumstances. 38 

C.F.R. §§ 3.307, 3.307(a), 3.307(a)(6) (2014). In 2015, the 

Secretary enlarged the class of covered individuals to 

include, under specified circumstances, reservists who 
HANSEN-SORENSEN v. WILKIE 5

had worked with a specific model of airplane (C-123) that 

had been used to spray herbicides. Id. § 3.307(a)(6)(v). 

The Secretary explained that the addition enabled specified “individuals who were exposed to herbicides during 

reserve service to establish veteran status for VA purposes and eligibility for some VA benefits.” Presumption of 

Herbicide Exposure and Presumption of Disability During 

Service for Reservists Presumed Exposed to Herbicide, 80 

Fed. Reg. 35,246, 35,246 (June 19, 2015). Under the rule, 

the specified individuals are presumed to have been 

exposed to a herbicide agent; “[s]uch exposure constitutes 

an injury under 38 U.S.C. 101(24)(B) and (C)”; and if a 

described individual develops a specified disease, “it will 

be presumed that the individual concerned became disabled during that service for purposes of establishing that 

the individual served in the active military, naval, or air 

service.” 38 C.F.R. § 3.307(a)(6)(v). 

The second post-Bowers regulation invoked by Mrs. 

Hansen-Sorensen was adopted in 2017 and appears in 38 

C.F.R. § 3.307(a)(7) (Camp Lejeune Rule). Much as the C123 Rule addresses individuals connected in specified 

ways with certain aircraft used for herbicide spraying, the 

Camp Lejeune Rule addresses individuals who spent

specified amounts of time at Marine Corps Base Camp 

Lejeune during the almost 35 years in which its water 

was contaminated. See Diseases Associated With Exposure to Contaminants in the Water Supply at Camp 

Lejeune, 82 Fed. Reg. 4173 (Jan. 13, 2017). Under the 

rule, “[a] veteran, or former reservist or member of the 

National Guard” who had the specified time at Camp 

Lejeune in the period “shall be presumed to have been 

exposed during such service to the [identified] contaminants,” unless affirmative evidence establishes otherwise. 

Id. § 3.307(a)(7)(iii). In addition, “[e]xposure described in 

paragraph (a)(7)(iii) of this section is an injury under 38 

U.S.C. 101(24)(B) and (C)”; and if such an individual 

develops a specified disease, “VA will presume that the 
6 HANSEN-SORENSEN v. WILKIE

individual concerned became disabled during that service 

for purposes of establishing that the individual served in 

the active military, naval, or air service.” Id.

§ 3.307(a)(7)(iv).

We conclude, contrary to Mrs. Hansen-Sorensen’s contention, that the C-123 and Camp Lejeune rules do not 

alter the Bowers statutory interpretation of the phrase 

“active military, naval, or air service” or the application of 

that phrase in the ALS Rule. The two new rules do not 

change the language of the ALS Rule, which incorporates 

word for word that statutory phrase. Not surprisingly, 

given that this court interpreted the statutory phrase 

without deference, the two new rules also do not purport 

to alter what we held in Bowers about the meaning of that 

phrase in an ALS case: “active duty for training” is not 

“active duty,” so for a person who had only the former and 

came down with ALS—like Mr. Hansen and Mr. Bowers—

to qualify under the ALS Rule, there must be a showing 

that the ALS was “incurred or aggravated” in the line of 

duty and that the person became disabled from that 

disease during the training period. 

As relevant here, all that the two new rules do is establish that the “incurred or aggravated in line of duty” 

and “during which the individual concerned was disabled” 

requirements of § 101(24)(B) and (C) are met in specified 

circumstances. Those circumstances involve individuals 

who come down with specified diseases and had specified 

experiences (with C-123 aircraft or at Camp Lejeune)

presenting risks of harm from specified chemical agents 

(herbicides or water contaminants). The Secretary made 

empirical judgments about those circumstances. See 80 

Fed. Reg. at 35,246–47 (discussing 2014 National Academy of Sciences Institute of Medicine study of scientific 

literature and knowledge regarding “residual exposure to 

Agent Orange from service on aircraft formerly used 

during Operation Ranch Hand in Vietnam”); 82 Fed. Reg. 

at 4174–83 (discussing a variety of studies of effects of 
HANSEN-SORENSEN v. WILKIE 7

contaminants at Camp Lejeune). Based on those judgments, the Secretary, exercising general authority under 

38 U.S.C. § 501(a), codified a legal shortcut in each situation for meeting, not altering or circumventing, the 

standard of § 101(24)(B) and (C) for coming within the 

“active military, naval, or air service” language—as the 

two new rules, quoted in part above, make clear on their 

face.

It is undisputed that this case does not come within 

the circumstances covered by the C-123 or Camp Lejeune 

Rules. For the situation covered by the ALS Rule, at 

issue here, the Secretary has not made the same kind of 

empirical judgment or adopted the same kind of shortcut 

to making the showings required by § 101(24)(B) for a 

person with “active duty for training” but not “active 

duty.” Thus, the two post-Bowers rules do not involve a 

new legal interpretation, or a factual or policy determination, that applies to this case and removes it from the 

controlling force of Bowers. 

Although Mrs. Hansen-Sorensen has framed her challenge as one based on an altered legal interpretation, she 

has also suggested that the Secretary’s different regulatory treatment of the ALS situation, on one hand, from the 

C-123 and Camp Lejeune situations, on the other, is 

arbitrary and capricious. This court is authorized to set 

aside any regulation relied on by the Veterans Court that 

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 38 U.S.C. § 7292(d)(1). 

In various contexts, courts have recognized that treating 

“like cases differently” can be arbitrary and capricious. 

Kaiser Found. Hosps. v. Sebelius, 708 F.3d 226, 233 (D.C. 

Cir. 2013); see, e.g., Nat’l Org. of Veterans’ Advocates, Inc. 

v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1379–80 (Fed. 

Cir. 2001) (explaining that an agency must have a reasonable explanation for adopting two regulations that 

implement virtually identical statutory language differ-
8 HANSEN-SORENSEN v. WILKIE

ently); NLRB v. General Stencils, Inc., 438 F.2d 894, 904–

05 (2d Cir. 1971). 

But Mrs. Hansen-Sorensen has not made a persuasive 

showing of arbitrariness on such grounds in this matter. 

In particular, she has not shown that the ALS situation is 

truly “like” the C-123 or Camp Lejeune situations. In the 

latter two situations, the Secretary, based on empirical 

studies, made a judgment about likely connections of 

specific diseases to specific experiences involving likely 

exposure to specific harm-causing chemicals (herbicides or

water contaminants). The exposures underlying those 

two rules do not underlie the ALS Rule, which relies on 

different empirical studies that the Secretary did not 

treat as tying ALS to any specific harm-causing chemical 

agent, use of specific equipment, or periods of time at a 

specific location. See Presumption of Service Connection 

for Amyotrophic Lateral Sclerosis, 74 Fed. Reg. 57,072, 

57,072 (Nov. 4, 2009) (referring to 2006 report of the 

National Academy of Sciences Institute of Medicine). 

We have not been presented a focused, detailed examination of the different empirical studies relevant to the 

different situations that are the subject of the several 

rules at issue. In this circumstance, we have no basis for 

concluding that the Secretary cannot reasonably distinguish the ALS situation from the C-123 and Camp Lejeune situations in making judgments about whether to 

declare categorically or to presume that specific diseases 

or injuries were “incurred or aggravated in line of duty,” 

or that certain individuals became disabled during specified periods, under § 101(24)(B) and (C). In so concluding, 

we express no view on what a different agency or judicial 

record might reveal.

III 

For the foregoing reasons, we affirm the decision of 

the Veterans Court.
HANSEN-SORENSEN v. WILKIE 9

No costs.

AFFIRMED