# United States **Court of Appeals**  **for the Federal Circuit**

______________________
MYRNA HANSEN

- SORENSEN, Claimant

- Appellant

v.

ROBERT WILKIE, SECRE TARY 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

______________________

K ENNETH M. C ARPENTER , Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant

- appellant.

N ATHANAEL Y ALE , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent

- appellee. Also represented by E LIZABETH M ARIE H OSFORD , R OBERT E DWARD K IRSCHMAN , J R ., J OSEPH H. H UNT ; B RIAN D. G RIFFIN , D EREK S CADDEN , Office of General Counsel, United States Department of Veterans Affairs, Washin gton, DC.HANSEN

- SORENSEN v. WILKIE 2

______________________
Before L OURIE , D YK , and T ARANTO , Circuit Judges.

T ARANTO , Circuit Judge

. Curtis L. Hansen served in the Army National Guard for six years, which includ ed , 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, i n 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 co mpensation to such veteran’s surviving s pouse, children, and parents.” As this case comes to us, Mr s. 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 d eclares that, with exceptions not applicable here, “the development of [ALS] manifested at any time after di scharge or release from active military, naval, or air se rvice is sufficient to establish service connection for that disease.” 38 C.F.R. § 3.318(a) ( ALS Rule).

Th is appeal concerns whether Mr. Hansen’s active d uty 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 ther efrom under conditions other than dishonorable.”). Th e 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 thatH ANSEN

- 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 aggr avated 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 o ccurring d uring such training.

We held in Bowers v. Shinseki that the above prov ision ’ 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 me ntion deference to the VA . Nor did we cite any authority on deference, whether regarding st atutory interpretation

, e.g. , Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984) , or regulatory inte rpr etation, 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 inHANSEN

- SORENSEN v. WILKIE 4

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 M r s. 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 requir ement of the ALS Rule is not met, and no presumption of service connection arise s under that rule

. It is undisputed that Mr s. Hansen -Soren sen did not make th e 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 , M r s. Hansen

- Sorensen’s claim fails.

II

Mr s. Hansen

- Sorensen argu es 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 whos e 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 S ecretary enlarged the class of covered individuals to include, under specified circumstances, reservists whoH ANSEN

- SORENSEN v. WILKIE 5

had worked with a specific model of air plane (C

- 123) that had been used to spray herbicides. Id. § 3.307(a)(6)(v). The Secretary explained that the addition enable d spec ified “individuals who were exposed to herbicides during reserve service to establish veteran status for VA purpo ses and eligibility for some VA benefits.” Presumpti on 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 t he rule

, the specified individuals are presumed to have been exposed to a herbicide age nt ; “[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 dis abled 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 Mr s. Hansen -Sorensen was adopted in 2017 and appears in 38 C.F.R. § 3.307(a)(7) (Camp Lej eune Rule)

. Much as the C123 R ule addresses individual s connected in specified ways with certain aircraft used for herbicide s praying , t h e Camp Lejeune R ule addresses individuals who spent specified amounts of time at Marine Corps Base C amp Le j eune during the almost 35 years in which its water was contaminated. See Diseases Associated With Exp osure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (Jan. 13, 2017)

. Under t he rule

, “[a] veteran, or former reservist or member of the National Guard” who ha d the specified time at Camp Lej eune in the period “shall be presumed to have been exposed during such service to the [identified] contam inants,” unless affirmative evidence establishes otherwise. Id. § 3.307(a)(7)(iii). In addi tion, “[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 theHANSEN

- SORENSEN v. WILKIE 6

individual concerned became disabled during that servic e for purposes of establishing that the individual served in the active military, naval, or air service.” Id. § 3.307(a)(7)(iv).
We conclude, c ontrary to Mr s. Hansen -Sorensen ’s co ntention, that the C- 123 and Camp Lejeune rules do not alter the Bowers stat utory 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 th at statutory phrase. N ot surpr isingly,
g iven 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 di sease during the training period

. As relevant here, all that the two new rules do is e stablish 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 spec ified 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 contamin ants) . The Secretary made empirical judgment s about those circumstances

. See 80 Fed. Reg. at 35

, 24 6–47 (discussing 2014 National Acad emy 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 ofH ANSEN

- SORENSEN v. WILKIE 7

contaminants at Camp Lejeune)

. Based on those jud gments
, the Secretary, exercising general authority under 38 U.S.C. § 501(a), codified a legal shortcut in each situ ation 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, q uoted 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

. F or 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 showing s 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 determin ation, that applies to this case and removes it from the controlling force of Bowers

. Although M r s. Hansen

- Sorensen has framed her cha llenge as one based on an altered legal interpretation, she has also suggested that the S ecretary’s different regulat ory 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 i s “arbitrary, capricious, an abuse of discretion, or othe rwise not in accordance with law.” 38 U.S.C. § 7292(d)(1)

. In various contexts, c ourts have recognized that t reating “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 re asonable explanation for adopting two regulations that implement virtually identical statutory language diffe r-HANSEN

- SORENSEN v. WILKIE 8

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

– 05 (2d Cir. 1971)

. But Mr s. 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 speci fic experiences involving likely
exposure to specifi c 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 t ying 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).

W e have not been presented a focused, detailed exa mination of the different empirical studies relevant to the different situations that are the subject of the several

r ules at issue. I n this circumstance, we have no basis for concluding that the Secretary cannot reasonably disti nguish the ALS situation from the C

- 123 and Camp Leje une situations in making judgments about whether to declare categorically or to presume tha t specific diseases or injuries w ere “incurred or aggravated in line of duty

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

we express no view on what a different agency or judicial

re cord might reveal.

II I For the foregoing reasons, we affirm the decision of the Veterans Court.H ANSEN

- SORENSEN v. WILKIE 9

No costs.

AFFIRMED