Opinion

Biggins v. Derwinski

  • 1 Vet. App. 474
  • 1991 U.S. Vet. App. LEXIS 93
  • 1991 WL 186868
Court
United States Court of Appeals for Veterans Claims
Filed
Sep 25, 1991
Status
Published
Author
Steinberg
On the bench
Farley, Kramer, Steinberg
Cited by
27 cases

seven-year presumption of service connection for multiple sclerosis contained in 38 U.S.C. § 312(a)(4) not available to appellant because she did not meet definition of “veteran” found in 38 U.S.C. §§ 337 and 101(2)

How later courts described this case

  • seven-year presumption of service connection for multiple sclerosis contained in 38 U.S.C. § 312(a)(4) not available to appellant because she did not meet definition of “veteran” found in 38 U.S.C. §§ 337 and 101(2)
  • discussing provisions of section 101(24)

Written by the judges who cited it.

The opinion

STEINBERG, Associate Judge,

concurring:

The separate opinion of Judge Kramer conjures up a “Catch 22” “potentially” presented by the “statutory structure” and suggests that the Court’s opinion somehow has left “unresolved” a “dilemma” of this imaginary “Catch 22”. Since there is no “Catch 22”, there is no unresolved dilemma. On its face, section 101(24) of title 38, U.S.Code, includes as a period of “active duty for training” (ADT) which qualifies as “active military, naval, or air service” “any” ADT “during which the individual concerned was disabled ... from a disease or injury incurred ... in line of duty” (emphasis added). Hence, the unassailable phrase in the Court’s opinion: “In the absence of any other claimed or documented disability from injury or disease during [appellant’s] period of active duty for train-ing_” Ante, at 478 (emphasis added). If the appellant, for example, had suffered a lasting back disability during service from her in-service back “sprain” suffered on January 3,1984 (R. at 20), which she did not apparently, then that back disability would be “a disability” that would have qualified her ADT service period as “active ... service” within the section 101(24) definition. That would have made her eligible for the benefit of the presumption under 38 U.S.C. §§ 1131 , 1137, and 1112(a)(4) (formerly §§ 331, 337, and 312(a)(4)) for multiple sclerosis arising within seven years of such service.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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