KAY M. BOWERS, Claimant-Appellant,
ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee
Petition for certiorari filed at, 07/11/2014
Appeal from the United States Court of Appeals for Veterans Claims in No. 10-3399, Judge Lawrence B. Hagel.
KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
WILLIAM J. GRIMALDI, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and JOSHUA P. MAYER, Attorney, United States Department of Veteran Affairs, of Washington, DC.
Before RADER, Chief Judge, MOORE and HUGHES, 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 presumption of service connection for any veteran who develops 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.
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 conditions 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' Appeals, 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 performed does not generally entitle an individual to evidentiary 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 presumption individuals whose service ...