On February 19, 2013, the United States Court of Appeals for Veterans Claims (CAVC) issued an opinion in Bowers v. Shinseki concerning the presumption of service connection for amyotrophic lateral sclerosis (ALS) and whether a period of active duty for training for a National Guard Soldier qualified for this presumption. In Bowers, the veteran served in the Army National Guard from March 1972 to March 1978 and was active duty for training from August 1972 through February 1973. The question faced by the CAVC was whether Mr. Bowers’ period of “active duty for training” qualified him as a “veteran” for the purposes of disability compensation before the Department of Veterans Affairs (VA).
For review, 38 C.F.R. § 3.318(a) provides that 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(b) provides exceptions to the regulatory ALS presumption if: (1) there is affirmative evidence that ALS did not occur during or was aggravated by active duty service; (2) if the ALS is due to the veteran’s own willful misconduct; or (3) if the veteran did not have 90 days of active continuious service.
The CAVC held that Mr. Bowers was not a “veteran” for the purposes of VA disability compensation under the facts of the case. The regulatory service-connected presumption for ALS under 38 C.F.R. § 3.318 “excludes those who have served on active duty for training regardless of the length of that service-unless it can be shown that ‘the individual concerned was disabled or died from a disease or injury incurred or aggravated’ during that period of active duty for training.” Id. (citing 38 U.S.C. § 101(24)(B)).
If you have a question concerning your status as a “veteran” or whether your disability would be service connected by the VA, please do not hesitate to contact Fink Rosner Ershow-Levenberg for a free consultation at (732) 382-6070 or through our website at www.finkrosner.com.