Last year we blogged about a decision from the United States Court of Appeals for Veterans Claims (CAVC) denying presumption of service connection for amyotrophic lateral sclerosis (ALS) when the veteran served a lengthy period of active duty for training in the National Guard. That blog can be found at Bowers v. Shinseki (CAVC).
On April 17, 2014, the United States Court of Appeals for the Federal Circuit (Fed. Cir.) affirmed the decision of the CAVC. The Fed. Cir. again held that the presumption of service connection for ALS (codified in 38 C.F.R. § 3.318) does not apply to Mr. Bowers (who unfortunately passed away during pendency of appeal). In short, the Fed. Cir. held that Section 3.318 “requires active military, naval, or air service.” A copy of the decision can be found at Bowers v. Shinseki (Fed. Cir.).
The hypothetical question that remains is this: Suppose Mr. Bowers was service connected for pes planus (flat feet) during his period of active duty for training? He would now be considered a “veteran” for that period of service because he “was disabled or died from a disease or injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(2), (24)(B). Would Mr. Bowers, therefore, be considered a “veteran” for the purposes of the presumption of ALS under Section 3.318?
This above is one of the questions posited in an excellent 2012 training article that I obtained through the CAVC Bar Association website. The article provides an excellent overview of the distinction between active duty, inactive duty for training (INACDUTRA), and active duty for training (ACDUTRA). As I can personally attest, the distinction between Active Duty, Reserve Component, and National Guard has become increasingly significant since the first Gulf War. I highly recommend review of this article which can be accessed at Making Sense of the Inscrutable: ACDUTRA/INACDUTRA, National Guard and Reserve Service.
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 via email at email@example.com.