Kay M. Bowers v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
KAY M. BOWERS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7087
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-3399, Judge Lawrence B.
Hagel.
______________________
Decided: April 17, 2014
______________________
K ENNETH M. CARPENTER , Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
WILLIAM J. G RIMALDI, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. On the brief were S TUART F. D ELERY , Assistant
Attorney General, JEANNE E. D AVIDSON, Director, and
MARTIN F. HOCKEY , J R., Assistant Director. Of counsel on
the brief were D AVID J. BARRANS , Deputy Assistant Gen-
eral Counsel, and J OSHUA P. MAYER , Attorney, United
States Department of Veteran Affairs, of Washington, DC.

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BOWERS V. S HINSEKI 2
______________________
Before RADER, Chief Judge, MOORE and H UGHES , Circuit
Judges.
HUGHES , Circuit Judge.
Kay M. Bowers seeks benefits based on the military
service of her late husband, Wayne E. Bowers, who served
in the Army National Guard. Thirty years after his
National Guard duty, Mr. Bowers was diagnosed with and
subsequently died from amyotrophic lateral sclerosis
(ALS), also known as Lou Gehrig’s disease. A regulation
of the Department of Veterans Affairs provides a pre-
sumption of service connection for any veteran who devel-
ops ALS after active military service. Because the United
States Court of Appeals for Veterans Claims properly
determined that Mr. Bowers was not a veteran, as defined
by statute, and, therefore, not qualified for the regulatory
presumption, we affirm.
I.
Mr. Bowers served in the Army National Guard from
March 1972 to March 1978, with a continuous period of
active duty for training from August 1972 to February
1973. His records do not reflect that he incurred any
injury or disease during service.
In 2009, shortly after his diagnosis with ALS, Mr.
Bowers filed a claim for benefits for ALS and other condi-
tions secondary to his ALS. In November 2009, a VA
Regional Office denied Mr. Bowers’s claim, finding that
his ALS was not incurred or aggravated in service.
Mr. Bowers appealed to the Board of Veterans’ Ap-
peals, asserting that he was entitled to presumptive
service connection for ALS under 38 C.F.R. § 3.318. The
Board rejected his argument and noted that reserve duty
and active duty for training of the type Mr. Bowers per-
formed does not generally entitle an individual to eviden-

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BOWERS v. S HINSEKI 3
tiary presumptions. Because Mr. Bowers did not prove
that he incurred ALS or any other disability during his
period of active duty for training, the Board determined
Mr. Bowers did not qualify as a “veteran,” and thus could
not invoke the presumption under § 3.318.
Mr. Bowers then appealed to the Veterans Court.
While his appeal was pending, Mr. Bowers died and Mrs.
Bowers was substituted as the appellant. Mrs. Bowers
argued that the Board erred in two ways. First, Mrs.
Bowers argued that the Board erred by requiring the
individual achieve veteran status before the presumption
under § 3.318 may be applied. Second, Mrs. Bowers
argued that the Board erred by excluding from the pre-
sumption individuals whose service only consisted of
active duty for training, without having incurred or
aggravated a disease or injury during service.
Affirming the Board’s decision, the Veterans Court
held that § 3.318 includes a requirement that the individ-
ual attain “veteran status.” Bowers v. Shinseki, 26 Vet.
App. 201, 206–07 (2013). And because Mr. Bowers did not
achieve veteran status, the Veterans Court determined
that he was not entitled to presumptive service connection
under the governing regulation. Id. at 207–09.
Mrs. Bowers appeals. We have jurisdiction under 38
U.S.C. § 7292(c).
II.
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. We “have exclusive jurisdic-
tion to review and decide any challenge to the validity of
any statute or regulation or any interpretation thereof [by
the Veterans Court] . . . and to interpret constitutional
and statutory provisions, to the extent presented and
necessary to a decision.” 38 U.S.C. § 7292(c). In such
instances, we review the Veterans Court’s legal determi-
nations de novo. Cushman v. Shinseki, 576 F.3d 1290,

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BOWERS V. S HINSEKI 4
1296 (Fed. Cir. 2009). Moreover, we may set aside any
regulations or regulatory interpretations of the Veterans
Court which are unconstitutional, violative of statute,
procedurally defective, or otherwise arbitrary. 38 U.S.C.
§ 7292(d)(1). We may not, however, absent a constitu-
tional challenge, “review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2).
In this case, we must decide whether the regulatory
presumption of service connection for ALS applies to
individuals who served only in the National Guard and
did not perform any “active military, naval, or air ser-
vice.” The ALS regulation provides in full:
(a) Except as provided in paragraph (b) of this sec-
tion, the development of [ALS] manifested at any
time after discharge or release from active mili-
tary, naval, or air service is sufficient to establish
service connection for that disease.
(b) Service connection will not be established un-
der this section:
(1) If there is affirmative evidence that
[ALS] was not incurred during or aggra-
vated by active military, naval, or air ser-
vice;
(2) If there is affirmative evidence that
[ALS] is due to the veteran’s own willful
misconduct; or
(3) If the veteran did not have active, con-
tinuous service of 90 days or more.
38 C.F.R. § 3.318.
As the Veterans Court noted, the regulation specifi-
cally refers to “active military, naval, or air service,”
which, in turn, “implies a requirement that the individual
attain veteran status.” Bowers, 26 Vet. App. at 206–07.

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BOWERS v. S HINSEKI 5
Mrs. Bowers argues that the Veterans Court’s interpreta-
tion of § 3.318 is mistaken because the Secretary did not
use the phrase “veteran status” anywhere in the regula-
tion and, therefore, the court’s imposition of such a re-
quirement is erroneous. Rather, she asserts that any
active service of more than 90 days is sufficient to estab-
lish entitlement to the presumption under § 3.318 regard-
less of whether the claimant meets the statutory
definition of a “veteran.”
Although it is true that § 3.318 does not refer to “vet-
eran status,” the regulation does provide that the pre-
sumption of service connection for ALS applies after
discharge or release from active military, naval, or air
service. That phrase is specifically defined by statute to
include only individuals who served on active duty—
which Mr. Bowers indisputably did not—or on active duty
for training, but only when the individual was disabled or
died from a disease or injury incurred or aggravated in
the line of duty—which, again, Mr. Bowers was not. See
38 U.S.C. § 101(24). Thus, the Veterans Court’s require-
ment of “veteran status” is simply an acknowledgment
that § 3.318 requires active military, naval, or air service.
The Veterans Court’s interpretation of the regulation
is consistent with the statutory scheme. In general, title
38 of the U.S. Code establishes a veteran’s right to disa-
bility compensation. Congress has authorized the United
States to pay a “veteran” compensation for any disability
contracted or aggravated while in “the active military,
naval, or air service” during a period of war or peacetime.
38 U.S.C. §§ 1110, 1131. The statutes define the term
“veteran” as a person who has served in “active military,
naval, or air service,” which includes “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.” 38 U.S.C. § 101(2), (24)(B).

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BOWERS V. S HINSEKI 6
Likewise, the plain language of 38 C.F.R. § 3.318 mir-
rors the statutory definitions by requiring “active mili-
tary, naval, or air service” of 90 days or more for the
presumption to apply and by twice reciting the term “the
veteran.” As the Veterans Court correctly recognized, the
Secretary’s use of these statutorily defined phrases indi-
cates a limitation on the application of the presumption to
those who qualify as a “veteran” under 38 U.S.C. § 101(2).
Mrs. Bowers cites to comments in the Federal Regis-
ter that she asserts establish the Secretary’s intent to
provide the presumption under 38 C.F.R. § 3.318 to
individuals that do not satisfy the statutory requirement
of veteran status. But her citation contradicts that asser-
tion by using the phrase “active military, naval, or air
service,” which, as established above, requires veteran
status.
The Secretary published § 3.318 because medical
studies indicated a statistical correlation between activi-
ties in military service and the development of ALS.
Presumption of Service Connection for Amyotrophic
Lateral Sclerosis, 73 Fed. Reg. 54,691, 54,691–92 (Sept.
23, 2008). Although the studies lacked conclusive evi-
dence confirming the correlation, the Secretary nonethe-
less determined that proof of “active military, naval, or air
service,” together with the development of ALS following
service, would be sufficient to establish entitlement to
service connection for any “veteran.” 73 Fed. Reg. at
54,692 (citing 38 U.S.C. § 1110). The Secretary’s com-
ments in the Federal Register, like the text of 38 C.F.R.
§ 3.318, echo the statutory requirements of veteran sta-
tus.
III.
We have considered Mrs. Bowers’s remaining argu-
ments and find them unpersuasive. Because it did not
misinterpret 38 C.F.R. § 3.318, the judgment of the Vet-
erans Court is affirmed.

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BOWERS v. S HINSEKI 7
AFFIRMED
COSTS
No costs.

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