[00:00:00] Speaker 02:
The first case of argument this morning is 23-1930, McKinney v. Secretary of Veterans Affairs.

[00:00:07] Speaker 02:
Mr. Watkins will be ready.

[00:00:10] Speaker 04:
Good morning, Your Honors.

[00:00:11] Speaker 04:
May it please the Court?

[00:00:14] Speaker 04:
The appeal before you begs the Court to send a strong message to the VA.

[00:00:20] Speaker 04:
The bar needs VA to be told in no uncertain terms that its process of evaluating McKinney's rulemaking petition

[00:00:30] Speaker 04:
was a sham, that the time delay of eight years in considering that petition is completely unacceptable and that the agency is being watched for its behavior and its shortcomings.

[00:00:45] Speaker 03:
Did you file a mandamus petition to require the VA to move more quickly?

[00:00:52] Speaker 04:
You know, they kept moving the

[00:00:54] Speaker 04:
the line.

[00:00:56] Speaker 04:
They kept saying, we'll get it done by a certain date.

[00:00:58] Speaker 04:
And then they say, another date and another date.

[00:01:00] Speaker 04:
This is the third time I've been to the Federal Circuit for this rulemaking petition.

[00:01:05] Speaker 04:
I tried to move this along very unsuccessfully.

[00:01:10] Speaker 04:
They first published a notice of proposed rulemaking that said they denied the petition.

[00:01:17] Speaker 04:
I assume that was finality because it said, it's denied.

[00:01:20] Speaker 04:
They didn't ask for any public comment on it.

[00:01:23] Speaker 04:
They never even disclosed the actual petition to the public.

[00:01:26] Speaker 04:
They never even told the public that McKinney was the petitioner.

[00:01:30] Speaker 05:
Is the VA bound by any type of timing requirements?

[00:01:34] Speaker 04:
The APA says that they're supposed to act.

[00:01:37] Speaker 04:
It doesn't say that they have to act within a year or two years.

[00:01:41] Speaker 04:
But eight years is way beyond reason.

[00:01:44] Speaker 04:
There's a lot of case law that already says that.

[00:01:47] Speaker 04:
Plenty from the DC Circuit that says that.

[00:01:49] Speaker 04:
They're way out of bounds in eight years.

[00:01:51] Speaker 02:
So there are cases from other circuits where they've done but if they conclude that the agency has not acted within a reasonable amount of time?

[00:02:00] Speaker 04:
They've said that the agency acted in bad faith, just as this agency has done in this case.

[00:02:05] Speaker 02:
Can I ask you, just along the similar lines, in my inbox this morning, I got a little something from you all.

[00:02:12] Speaker 02:
I assume we've all gotten it.

[00:02:13] Speaker 02:
And it's, I guess, a 28J.

[00:02:14] Speaker 02:
Yes.

[00:02:15] Speaker 02:
Speaking of timeliness, 28Js are intended for recent stuff that was done really recently.

[00:02:24] Speaker 02:
Yes.

[00:02:26] Speaker 02:
As I understand it, and obviously I haven't had much time to look at it, your 28J is about Loper.

[00:02:32] Speaker 02:
which was issued almost a year ago.

[00:02:35] Speaker 02:
And you sent us something this morning, barely enough time for us to absorb it, if we even could.

[00:02:42] Speaker 02:
And the other side hasn't had an opportunity to even look at it, or if they have, certainly not enough to respond to us.

[00:02:49] Speaker 02:
I would feel weird to even ask them here, to stand here, having gotten in an hour ago, to respond to it.

[00:02:55] Speaker 02:
Isn't that a problem for us?

[00:02:59] Speaker 04:
Here's the circumstance, Your Honor, and I appreciate that the 28-J was filed yesterday.

[00:03:04] Speaker 04:
But it was filed yesterday because I read over the weekend an ABA Natural Resources and Environment article entitled Rulemaking Petitions in a World Without Deference to Agencies.

[00:03:15] Speaker 04:
It was just published in May.

[00:03:19] Speaker 04:
This argues exactly what the 28J was pointing out, which is in a post-Loper world.

[00:03:25] Speaker 02:
I'm sorry.

[00:03:27] Speaker 02:
Maybe I clearly have not had enough time to look at your 28J letter.

[00:03:31] Speaker 02:
Is your 28J letter for that article?

[00:03:34] Speaker 04:
I didn't cite this article.

[00:03:35] Speaker 04:
I cited Loper.

[00:03:37] Speaker 04:
And that's what this article is about.

[00:03:39] Speaker 04:
Loper was, after all, the briefing occurred.

[00:03:42] Speaker 04:
And frankly, it didn't occur to me that there was going to be the sea change in rulemaking petition

[00:03:48] Speaker 04:
filings that this Texas A&M professor is now advocating for.

[00:03:54] Speaker 02:
Let's go back to the merits.

[00:03:56] Speaker 02:
Most of your arguments deal with the issue you've raised with us today about how long they took.

[00:04:04] Speaker 02:
What is our standard?

[00:04:06] Speaker 02:
Is there a standard of review other than the one that would apply to rulemaking, which is arbitrary and capricious and very deferential?

[00:04:14] Speaker 02:
You're not suggesting that a different standard of review would apply

[00:04:18] Speaker 02:
to your second circumstance.

[00:04:20] Speaker 04:
In a post-Loper world, absent Chevron deference, your standard becomes independent judgment.

[00:04:27] Speaker 04:
You get to delve into the issue in a way that you couldn't do it before.

[00:04:32] Speaker 04:
The standard under Ohio VEPA now is

[00:04:35] Speaker 04:
reasonable and reasonably explained, a satisfactory explanation for its action.

[00:04:40] Speaker 04:
What I can tell you is, if you take a look at what VA did with this rulemaking petition, the petition used the term disease process 34 times in 28 pages.

[00:04:52] Speaker 04:
In its assessment that it published in the Federal Register of a 28-page rulemaking petition using the word disease process 34 times, VA used it once.

[00:05:04] Speaker 04:
The entire focus of the rulemaking petition was about this term disease process and how traumatic brain injuries are now vastly understood in the medical field as following this thing called the

[00:05:18] Speaker 04:
disease process.

[00:05:19] Speaker 03:
Well, my understanding is the strong theme out of the VA's federal register notices seems to be its view that the TSGLI is not intended for a degenerative process.

[00:05:39] Speaker 03:
And so if you are injured by something while in service, but then

[00:05:47] Speaker 03:
it takes a long time for whatever disease or illness to materialize.

[00:05:52] Speaker 03:
And that's not something in keeping with the whole purpose of this benefits program, which is to take care of people in service who have been harmed in an immediate kind of way that requires prompt medical attention.

[00:06:11] Speaker 03:
And if that's the theme, then these kinds of diseases and illnesses

[00:06:16] Speaker 03:
that materialize much further down the road or really outside the whole point and purpose of this benefits program.

[00:06:24] Speaker 03:
That's my understanding of these federal register notices, and they do talk about how, therefore,

[00:06:33] Speaker 03:
degenerative processes don't quite fit in.

[00:06:35] Speaker 03:
It's more about if you get your hand amputated, or you get blinded, or you lose all hearing, or something like this.

[00:06:44] Speaker 03:
Those are the kinds of things that this benefits program is intended to help.

[00:06:52] Speaker 04:
I don't agree, and I'd like to explain why.

[00:06:54] Speaker 04:
McKinney was injured when he was in a Humvee

[00:07:01] Speaker 04:
serving on a mountain patrol in Kirkuk, Iraq.

[00:07:04] Speaker 04:
He was in the wrong seat of the vehicle when an IED exploded.

[00:07:09] Speaker 04:
And the shockwave was focused, unfortunately, on the seat that he was in in the vehicle.

[00:07:15] Speaker 04:
At that moment, he sustained a traumatic brain injury.

[00:07:20] Speaker 04:
He lost consciousness.

[00:07:22] Speaker 04:
And he stayed with his troops to finish his service.

[00:07:26] Speaker 04:
He had just a couple of weeks left before his second tour of duty in Iraq was over.

[00:07:31] Speaker 04:
He got home after doing a first post-deployment health assessment, and he already had symptoms from a traumatic brain injury, but they got gradually worse.

[00:07:45] Speaker 04:
And less than two years after he got home, with no family history of stroke, he doesn't drink, he doesn't smoke, he's Mormon, so it's against his religion.

[00:07:57] Speaker 04:
No family history of his stroke.

[00:07:59] Speaker 02:
When he had a stroke, was he still in the service?

[00:08:02] Speaker 04:
No.

[00:08:03] Speaker 02:
So when was he discharged from the service?

[00:08:05] Speaker 04:
He was discharged from the service approximately 18 months.

[00:08:11] Speaker 04:
before he had his stroke.

[00:08:13] Speaker 02:
So when he had his stroke, if you could establish under a lighter test here to get VA benefits, he would have been eligible to submit a claim for some sort of VA benefits, right?

[00:08:26] Speaker 04:
He's already been declared by the VA to be 100% permanent and total disabled.

[00:08:31] Speaker 02:
Oh, okay.

[00:08:32] Speaker 04:
This is about insurance.

[00:08:33] Speaker 02:
Yeah, that's actually what I want to start asking because I couldn't find it in the briefs.

[00:08:38] Speaker 02:
I'm sorry.

[00:08:38] Speaker 02:
Maybe it's there.

[00:08:39] Speaker 02:
What is it?

[00:08:40] Speaker 02:
Is this insurance policy for a lump sum payment?

[00:08:43] Speaker 04:
That's correct.

[00:08:45] Speaker 04:
So Congress created this federal benefit because for ordinary folks like us civilians.

[00:08:51] Speaker 02:
No, I understand.

[00:08:52] Speaker 02:
Okay.

[00:08:52] Speaker 02:
So a lump sum payment.

[00:08:55] Speaker 02:
So you're asking for a lump sum payment under this insurance.

[00:09:01] Speaker 02:
And this was,

[00:09:02] Speaker 02:
for a stroke that occurred 18 months after he was discharged.

[00:09:08] Speaker 04:
Which is permitted by VA's regulation, which says you must suffer a scheduled loss under section 9.21C within two years of the traumatic injury.

[00:09:18] Speaker 04:
It was within two years.

[00:09:20] Speaker 04:
And I'll explain the reason why.

[00:09:22] Speaker 04:
I'll talk about my old friend Bob Dole.

[00:09:24] Speaker 04:
Bob Dole was injured during his service in Italy.

[00:09:28] Speaker 04:
His arm was severely injured, and it took a long time, many surgeries to try to save him.

[00:09:35] Speaker 02:
He's my old friend, too, by the way.

[00:09:40] Speaker 02:
But when the VA extended it from one year to two years, they relied on kind of the example.

[00:09:46] Speaker 02:
The reason they were doing it was because if you had an injury, it might take a year.

[00:09:50] Speaker 02:
to figure out that you need to amputate your foot.

[00:09:53] Speaker 02:
And therefore, that's the reason for their extension.

[00:09:56] Speaker 02:
It wasn't in the context of a stroke which would occur later on in the process in which some of the studies they rely on.

[00:10:06] Speaker 02:
You may disagree or agree, but they've got some basis for concluding that things such as strokes occur later down the route, generally.

[00:10:17] Speaker 02:
Right.

[00:10:17] Speaker 04:
But within two years.

[00:10:19] Speaker 04:
And their own regulation says that's OK for coverage.

[00:10:22] Speaker 04:
This isn't about McKinney.

[00:10:23] Speaker 04:
There's a much broader class.

[00:10:25] Speaker 05:
But the traumatic injury itself is supposed to occur almost immediately.

[00:10:29] Speaker 04:
It does.

[00:10:30] Speaker 04:
That's right.

[00:10:31] Speaker 04:
And with a traumatic brain injury, it does occur immediately.

[00:10:34] Speaker 04:
But then you have these effects that occur over a lengthy period of time.

[00:10:39] Speaker 04:
That's the Maysell and DeWitt paper.

[00:10:41] Speaker 04:
that is the basis of this petition for rulemaking.

[00:10:44] Speaker 04:
500,000 plus servicemen and women experienced traumatic brain injuries over the last 15 years.

[00:10:52] Speaker 04:
That's a lot of people.

[00:10:55] Speaker 04:
It shouldn't be that if you get zinged by radiation while you're serving, and it takes a year and a half before the cancer to show up, that you get covered by the insurance.

[00:11:07] Speaker 04:
You're kind of running out of time, and I wanted to hear from you.

[00:11:10] Speaker 05:
what you have to say about the standard of review and our case law with respect to petitions for rulemaking.

[00:11:22] Speaker 05:
And forget about Loper.

[00:11:24] Speaker 05:
I mean, I don't see that anybody cited Chevron, so I wouldn't be too concerned about that.

[00:11:31] Speaker 05:
So we obviously, or we have through the years, given a very

[00:11:39] Speaker 05:
high standards here.

[00:11:40] Speaker 05:
We don't get involved in the policymaking or the rulemaking process itself.

[00:11:48] Speaker 04:
That's not what Loper says anymore.

[00:11:51] Speaker 04:
Times have changed post Chevron.

[00:11:53] Speaker 02:
So you think that under Loper, I mean, I guess you raised it for the first time here this morning, but you think that Loper

[00:12:04] Speaker 02:
got rid of the standard of review that has been applied across the board among various circuits for agency rulemaking.

[00:12:13] Speaker 02:
If not, it's a different standard.

[00:12:15] Speaker 04:
I would say even more importantly, the stringent standards that have been applied by the parties pre-loper in all of the briefing, especially for the denial of a petition for rulemaking, are all called into question now.

[00:12:30] Speaker 02:
But what about the fact that this

[00:12:33] Speaker 02:
I can't find what the statute says, but there's an extraordinarily broad delegation of authority to the VA under the statute.

[00:12:42] Speaker 02:
Are we talking about, have you presented an argument that the words of the statute require this?

[00:12:52] Speaker 04:
I view that we didn't need to because the rationale presented in the Federal Register publication denying the petition

[00:13:02] Speaker 04:
is so out of sync with the petition itself that it is arbitrary and capricious.

[00:13:08] Speaker 04:
It doesn't matter to me.

[00:13:09] Speaker 02:
But are you saying now that we apply a de novo standard to the statute?

[00:13:13] Speaker 02:
We go back to the statute.

[00:13:15] Speaker 04:
Well, they didn't call it de novo in Loper.

[00:13:17] Speaker 02:
But we go back to the statute, and we read the words of the statute, and we have to determine now whether we interpret those words as covering and not covering.

[00:13:28] Speaker 02:
And what's the standard of review now?

[00:13:31] Speaker 02:
What do you say the standard review is?

[00:13:34] Speaker 04:
I say only that what Loper has given us is the ability for you to exercise independent judgment.

[00:13:40] Speaker 04:
And that's something more than you had under Chevron.

[00:13:45] Speaker 04:
I'm happy to further brief this post-argument.

[00:13:49] Speaker 04:
I apologize to the court for just raising it now, but it just occurred to me based on this ABA publication literally over the weekend when I read it.

[00:13:57] Speaker 04:
It's the May issue.

[00:13:59] Speaker 04:
that we have a problem with the standard in this case.

[00:14:02] Speaker 04:
Regardless, I would contend that the VA's decision is arbitrary and capricious.

[00:14:07] Speaker 04:
And a really strong message needs to be said.

[00:14:10] Speaker 05:
And that argument is because you think it's out of sync with the statute.

[00:14:16] Speaker 04:
Their regulation says.

[00:14:17] Speaker 04:
And with the petition.

[00:14:18] Speaker 04:
Their regulation allows.

[00:14:21] Speaker 04:
physical illness or disease caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance.

[00:14:33] Speaker 04:
The very rationale that was used by the VA to have those in place in this regulation was that they follow a disease process.

[00:14:41] Speaker 04:
So too does traumatic brain injury.

[00:14:44] Speaker 04:
Why should traumatic brain injury be excluded?

[00:14:47] Speaker 04:
when physical illness or disease, stroke according to the VA, from a radiological weapon is covered and that radiation doesn't cause you to have cancer for a year and a half.

[00:15:00] Speaker 04:
You're within the two years.

[00:15:01] Speaker 04:
The injury occurred immediately when your body got the radiation.

[00:15:04] Speaker 03:
The VA identified a whole bunch of other diseases or illnesses that have an association with TBI where they said those

[00:15:14] Speaker 03:
conditions don't materialize for many years.

[00:15:18] Speaker 04:
And I'm not advocating for them.

[00:15:19] Speaker 04:
I'm only advocating for within two years.

[00:15:21] Speaker 03:
But the problem is the rulemaking that you're advocating for covers all diseases and all illnesses that are caused, directly caused by TBI or by an ordinance.

[00:15:34] Speaker 03:
But only within two years.

[00:15:36] Speaker 04:
I haven't asked in that rulemaking petition to change

[00:15:41] Speaker 04:
Section 9, this is 38 CFR, Section 9.20 D4.

[00:15:45] Speaker 03:
And so the VA has to consider the proposed rulemaking and look at, therefore, all the diseases and illnesses, not just one particular disease or condition.

[00:15:56] Speaker 04:
Had they only given an explanation that makes sense in the Federal Register, then we wouldn't be here.

[00:16:03] Speaker 04:
But their explanation for why they denied the petition in the federal register doesn't talk about disease processes at all.

[00:16:10] Speaker 04:
I don't understand how that passes muster.

[00:16:12] Speaker 04:
OK.

[00:16:13] Speaker 04:
We're on intro.

[00:16:14] Speaker 02:
We'll restart from the rebuttal time.

[00:16:16] Speaker 02:
Let's hear from the government.

[00:16:17] Speaker 02:
Can I have a little bit of time back on the rebuttal, please?

[00:16:19] Speaker 02:
Yeah, I just said that.

[00:16:20] Speaker 02:
Thank you.

[00:16:26] Speaker 02:
Mr. Faulkner, good morning.

[00:16:27] Speaker 02:
Please proceed.

[00:16:27] Speaker 00:
May it please the court?

[00:16:29] Speaker 00:
Petitioner has asked the VA to promulgate rules changing section 9.20 to include illnesses or disease caused by exposure to explosive ordinance within coverage for dyscygni.

[00:16:43] Speaker 00:
And the VA determined that doing so would be inconsistent with the plain language of the statute and its purpose.

[00:16:49] Speaker 00:
I'll come to the manifestation issue second.

[00:16:51] Speaker 00:
But to begin with the plain language of the statute, section 1980 AC1 states that a scheduled loss under Dissigli must directly result from a traumatic injury.

[00:17:02] Speaker 00:
Consistent with this clear statutory directive, the VA determined which illnesses or diseases might have a positive association with explosive ordinance.

[00:17:12] Speaker 00:
And then it took the process of determining whether that association rises to the level of the direct causation, whether that standard can be met.

[00:17:20] Speaker 00:
The VA then interviewed several medical experts to determine whether that direct result standard can be met for these illnesses or diseases that have an association with explosive ordinances.

[00:17:31] Speaker 00:
Importantly, none of the experts that the VA interviewed identified any illnesses or diseases that regularly result from an explosive ordinance.

[00:17:40] Speaker 00:
That's in contrast to the traumatic brain injury itself.

[00:17:43] Speaker 00:
And Petitioner has not identified anyone either.

[00:17:46] Speaker 03:
In fact, the meetings with the... None of them identified

[00:17:52] Speaker 03:
disease or condition that has some association with TBI?

[00:17:58] Speaker 00:
No, initially the VA identified illnesses and diseases that have a positive association with a TBI or with the explosive ordinance, but the statute itself requires

[00:18:08] Speaker 00:
the illness or disease to directly result from the traumatic injury.

[00:18:12] Speaker 00:
So the VA had to interview medical experts to see whether these illnesses or diseases do in fact directly result, for example, from the TBI or the explosive ordinance.

[00:18:20] Speaker 00:
And the experts said that the scientist wasn't there, it was in its infancy, or that it would be next to impossible.

[00:18:26] Speaker 00:
I think some use pretty strong language in terms of it would be impossible to make this direct correlation next to impossible.

[00:18:32] Speaker 00:
In all those interviews, the meeting notes are on the appendix, around appendix 1288 to 1307.

[00:18:37] Speaker 03:
I thought the next to impossible conclusion was more in situations where the disease or condition materializes many, many years down the road.

[00:18:49] Speaker 03:
question whether there is any kind of causal link between something like Parkinson's on date X and then the TBI event that was date X minus 10 years or 20 years.

[00:19:02] Speaker 00:
Yes, I think they're closely related both those issues in terms of the further away the manifestation begins the more difficult it's going to be able to prove that nexus requirement and

[00:19:12] Speaker 00:
But the next impossible language itself is on appendix 1288 and that was directly rated as a causation issue between the illness and then the later injury or the the explosive ordinance and the illness or disease.

[00:19:25] Speaker 05:
Why isn't a stroke a type of brain injury?

[00:19:30] Speaker 00:
I'm sorry your honor.

[00:19:31] Speaker 05:
Why isn't a stroke a type of brain injury?

[00:19:36] Speaker 00:
So medically, Your Honor, I don't think that's clear from the record.

[00:19:39] Speaker 00:
But I think they did recognize that a stroke could be a residual of a traumatic brain injury.

[00:19:43] Speaker 05:
What if it develops from radiation?

[00:19:48] Speaker 00:
In that case, then, Tosigli may provide the coverage under the five enumerated exceptions to illnesses or diseases.

[00:19:54] Speaker 05:
So why would you provide coverage under that scenario, but not what we have before us?

[00:20:01] Speaker 00:
So the VA determined that the illnesses or diseases associated with a chemical, radiological, or a biological weapon directly result from that exposure.

[00:20:13] Speaker 00:
In contrast, and this comes through on appendix three in the final decision, in contrast, illnesses or diseases associated with explosive ordinance, the scientist isn't there to establish that direct causal link.

[00:20:24] Speaker 02:
And the statute has other lines, or I think it's a statute that says it's a direct cause and no other cause, right?

[00:20:32] Speaker 00:
Yes, Your Honor, correct.

[00:20:33] Speaker 00:
That's 1980 AC 1.

[00:20:38] Speaker 02:
OK.

[00:20:39] Speaker 02:
Do you have any comment about the discussion that predominated with your friend about the recent?

[00:20:44] Speaker 02:
Did you get the 28-J letter?

[00:20:47] Speaker 00:
Yes, Your Honor, I saw it last night.

[00:20:48] Speaker 02:
Okay.

[00:20:49] Speaker 02:
Do you have anything you want?

[00:20:51] Speaker 02:
I mean, again, I can imagine that you haven't had a chance to look through it given under these circumstances, but if you have anything to say about that, you've formed a view of that.

[00:21:00] Speaker 00:
Only that Massachusetts VEPA, which states the highly differential and limited review standard, did not itself rely on Chevron.

[00:21:07] Speaker 00:
And none of the cases in this court relied on Chevron.

[00:21:09] Speaker 00:
So I don't see how it impacts these cases at all.

[00:21:12] Speaker 02:
And there's a pretty broad delegation, right?

[00:21:15] Speaker 02:
I mean, the statute has the language you cite.

[00:21:18] Speaker 02:
And doesn't it?

[00:21:18] Speaker 02:
I can't find it now in my notes.

[00:21:20] Speaker 02:
But I thought there was a pretty broad delegation.

[00:21:22] Speaker 02:
And the VA just then figures out what's covered and what's not.

[00:21:28] Speaker 02:
Am I wrong?

[00:21:29] Speaker 00:
You're correct, Your Honor.

[00:21:29] Speaker 00:
That's 1980 AAB1.

[00:21:31] Speaker 00:
It says the VA has the authority to promulgate rules with respect to what losses are actually covered by this insurance, litigically.

[00:21:40] Speaker 02:
Now, your friend mentioned, and I

[00:21:43] Speaker 02:
take for granted that Mr. McKinney is currently on VA benefits, because once he was discharged, he's entitled to compensation.

[00:21:52] Speaker 02:
And we know we have these cases all the time.

[00:21:55] Speaker 02:
So we know the standard for determining is kind of a causation thing in the VA.

[00:22:00] Speaker 02:
Is that different, separate and distinct from the kind of causation thing we would apply here?

[00:22:07] Speaker 00:
Yes.

[00:22:07] Speaker 00:
I think the standard here is much more rigorous.

[00:22:09] Speaker 00:
I think in terms of service connection, you have the in-service injury.

[00:22:13] Speaker 00:
you have the present disability, then that nexus is determined based on more likely than not, typically.

[00:22:18] Speaker 00:
And the VA decisions, you read that, are less likely than not.

[00:22:21] Speaker 00:
So that's significantly lesser than the must result directly from and from no other cause.

[00:22:29] Speaker 02:
And what about the two-year thing?

[00:22:33] Speaker 02:
You know, there's an argument there.

[00:22:36] Speaker 02:
I mean, you didn't have to change the two years.

[00:22:39] Speaker 02:
I think everyone in the world is probably glad that you did, because as I read the commentary, it was largely for the example I mentioned to your friend.

[00:22:48] Speaker 02:
But why shouldn't we take that as a given up so that all this causation stuff is good enough because it happened within the two-year period?

[00:22:59] Speaker 00:
I think your point was well taken in terms of why they expanded it, working with the Wounded Warriors Project, so that's correct from the Federal Register.

[00:23:05] Speaker 00:
I think the counter to that is, first of all, administratively, the VA noted in its final rule here about expanding even further, it'd be difficult to prove these nexuses to further go out, and I think that's an issue for the illnesses or diseases that are associated with the explosive ordinance, which is what the petition is for.

[00:23:24] Speaker 00:
They aren't a direct result from those explosive ordinances.

[00:23:26] Speaker 02:
So why wouldn't it make sense to have a rule?

[00:23:28] Speaker 02:
You can get covered as long as you're within the two years.

[00:23:31] Speaker 02:
And if you're outside the two years, you can't.

[00:23:33] Speaker 00:
Because you still have to comply with the causation requirement that Congress dictated here.

[00:23:40] Speaker 05:
You keep mentioning a nexus.

[00:23:42] Speaker 05:
I'm not clear how that applies here.

[00:23:47] Speaker 05:
Are you saying that there was a lack of nexus between the brain injury and the stroke?

[00:23:54] Speaker 00:
Your Honor, no, there's a positive association between those things.

[00:23:57] Speaker 00:
But the medical evidence, the science, and the record states that there's no direct, you can't state for certain that this stroke was a direct result of that traumatic brain injury.

[00:24:05] Speaker 00:
That's accurate.

[00:24:06] Speaker 00:
That's what the doctor said.

[00:24:07] Speaker 00:
There could be other causes as well.

[00:24:12] Speaker 00:
So for example, they talked about, well, maybe there's an issue with high blood pressure.

[00:24:15] Speaker 00:
You can't necessarily prove that.

[00:24:17] Speaker 05:
Maybe, if that's the case, why shouldn't this be another one of the exceptions?

[00:24:22] Speaker 05:
Exception number six.

[00:24:25] Speaker 05:
If indeed, if you looked at whether there's a nexus between the stroke and the brain injury, then that I see almost as a concession that this qualifies as an exception, except that in this case, in this case, there's no coverage.

[00:24:45] Speaker 00:
Your Honor, so it's not a concession because it doesn't meet the causation requirement.

[00:24:50] Speaker 00:
The VA, and I'll briefly say this, they recognize an association between some illnesses and diseases and, for example, the explosive ordinance, but it's not a direct result, and it's not from no other causes.

[00:25:00] Speaker 05:
Is the causation done on a case-by-case basis?

[00:25:04] Speaker 00:
In this case, the VA made a decision that these illnesses and diseases can't meet that causation standard, so we're not going to promulgate the rules in addition to the manifestation issue.

[00:25:11] Speaker 05:
Is the causation standard applied to the other five exceptions?

[00:25:16] Speaker 00:
So, and I think this is on Appendix 3, on that first paragraph, and at the beginning, the top paragraph, it specifically says, well, these illnesses and diseases do not result from the explosive ordinance, whereas the enumerated exceptions, specifically the chemical, radiological, and biological weapons, do result.

[00:25:34] Speaker 00:
So they did make that distinction.

[00:25:35] Speaker 00:
And that is part of why those enumerated exceptions were enumerated in the first place, because they did find that causation was met.

[00:25:41] Speaker 03:
So let me see if I get this straight.

[00:25:44] Speaker 03:
When it comes to the five covered exceptions, things like chemical weapons, biological weapons, exposure, are you saying the way the regulation operates is the VA has made a determination ex ante that if any

[00:25:58] Speaker 03:
buddy who was exposed to those kinds of chemical biological weapons, then suffers from some kind of disease or condition within two years of that exposure.

[00:26:11] Speaker 03:
The VA is going to say, OK, that disease or illness was caused by that exposure of biological and chemical weapons.

[00:26:21] Speaker 03:
Or is there some additional process that the claimant has to go through and say, look, now that I qualify, because it's a covered exception under the regulation, now let me make the case for proving why I, in fact, am suffering from this condition because it was caused by the biological weapon exposure.

[00:26:44] Speaker 03:
Which one is it?

[00:26:47] Speaker 00:
So the direct result would already be established, then, Your Honor.

[00:26:52] Speaker 00:
And then they would just have to show that there would be a scheduled loss.

[00:26:55] Speaker 00:
One of those scheduled losses listed.

[00:26:57] Speaker 03:
Right.

[00:26:57] Speaker 03:
OK.

[00:26:58] Speaker 03:
So therefore, for the covered exceptions,

[00:27:04] Speaker 03:
the way the process works is different than what we're normally used to when we're looking at benefits claims for a veteran, where the veteran is suffering from some kind of disease or condition and then has to try to make a case for some kind of, I don't know, causal link.

[00:27:24] Speaker 00:
Yes, Your Honor.

[00:27:25] Speaker 00:
It is different in that sense.

[00:27:27] Speaker 00:
It's much more rigorous here with the traumatic service members group life insurance as compared to the service connection analysis.

[00:27:34] Speaker 02:
So is there a list about the conditions that would arise as a result of these five exceptions that are covered?

[00:27:42] Speaker 00:
So there's no list.

[00:27:43] Speaker 00:
There is a description in the TCGLI, sorry, the Traumatic Service Member's Group Life Insurance Procedural Guide that gives examples.

[00:27:51] Speaker 00:
For example, if you're exposed to a radiological weapon and then within a year you develop some sort of cancer.

[00:27:57] Speaker 00:
If you're exposed to a biological weapon and you develop respiratory issues, things like that said, they say would be covered.

[00:28:04] Speaker 02:
What do you say within a year?

[00:28:05] Speaker 02:
It's two years, isn't it?

[00:28:07] Speaker 00:
That was just an example, Your Honor.

[00:28:08] Speaker 00:
You're right.

[00:28:08] Speaker 00:
Within two years.

[00:28:13] Speaker 05:
You said that there was a science that backed up a nexus between the radiation and the stroke, right?

[00:28:22] Speaker 00:
Between the radiation and the stroke?

[00:28:24] Speaker 05:
And the stroke.

[00:28:26] Speaker 00:
So I think that it's recognized that there's a positive association.

[00:28:30] Speaker 05:
When you say recognized, you're talking about science.

[00:28:33] Speaker 05:
Science is recognized that?

[00:28:35] Speaker 00:
A journal.

[00:28:36] Speaker 00:
So in the proposed rulemaking, they cite a journal that says there's a positive association between a TBI maybe several years later if you have a stroke.

[00:28:46] Speaker 05:
An increased risk, they also say.

[00:28:47] Speaker 05:
Can you show us in the record where that science is?

[00:28:51] Speaker 00:
Yes.

[00:28:56] Speaker 00:
That's Appendix 1402.

[00:29:00] Speaker 00:
And it's the middle part of that notice.

[00:29:03] Speaker 00:
Scientific reports indicate that.

[00:29:06] Speaker 05:
1402?

[00:29:07] Speaker 00:
Yes, Your Honor.

[00:29:07] Speaker 00:
And that's the initial proposed rulemaking, notice of proposed rulemaking in August 2021.

[00:29:12] Speaker 05:
That's at volume six.

[00:29:18] Speaker 00:
Sorry, Your Honor.

[00:29:25] Speaker 00:
Yes, that's six, your honor.

[00:29:38] Speaker 00:
And it's the middle paragraph beginning with scientific reports indicate, and then partway down it talks about the heightened risk of a stroke following a TBI, as well as other conditions that might be a heightened risk.

[00:29:55] Speaker 03:
So in your view, that's not enough because you want this direct causal link.

[00:30:02] Speaker 00:
Yes, Your Honor.

[00:30:03] Speaker 00:
In addition to the first point that was discussed previously, the manifestation issue, the sense that an illness or disease that might result from a TBI or explosive ordinance won't manifest for maybe two years or more to come.

[00:30:15] Speaker 00:
I think some of the examples given in the final rule, Alzheimer's, dementia, increased risk of certain brain tumors,

[00:30:21] Speaker 00:
All those might manifest years, years later, which isn't the sort of covers that Cigley has designed to cover.

[00:30:27] Speaker 00:
It's really designed to meet the short-term needs of a service member who has experienced some sort of traumatic injury.

[00:30:33] Speaker 03:
All of this thinking and decision-making was born out of a 10-year review, which started in 2015.

[00:30:44] Speaker 03:
Is the VA now doing a 20-year review?

[00:30:46] Speaker 03:
It's 2025.

[00:30:48] Speaker 00:
Your Honor, I'm not aware of an additional 20-year review.

[00:30:51] Speaker 00:
I think the 10-year review was required by statute as well, by Congress.

[00:30:55] Speaker 02:
And in the papers, you talked about Congress also passing something to say you ought to study PTSD.

[00:31:03] Speaker 02:
And you did.

[00:31:04] Speaker 02:
You responded to a congressional directive to study something.

[00:31:07] Speaker 02:
I assume they never did anything about that.

[00:31:10] Speaker 00:
So PTSD is not included within this coverage.

[00:31:12] Speaker 00:
You're right, Your Honor.

[00:31:13] Speaker 02:
But they did ask you to take a look at it.

[00:31:15] Speaker 00:
Yes, Your Honor.

[00:31:16] Speaker 02:
You took a look at it and responded, and they didn't act on it.

[00:31:18] Speaker 00:
Yes, Your Honor.

[00:31:19] Speaker 05:
In looking at the record that you took us to on page 1402, it's citing, I guess, a study.

[00:31:34] Speaker 05:
But it says, patients with traumatic brain injury, the population-based study suggests an increased risk of stroke.

[00:31:42] Speaker 00:
Yes, Your Honor.

[00:31:43] Speaker 05:
You don't see that as a nexus of any kind?

[00:31:47] Speaker 00:
I don't see that as meeting the stringent requirement here to be a direct result from the traumatic injury and from no other cause.

[00:31:56] Speaker 00:
And that's the VA's decision.

[00:32:00] Speaker 00:
And then the meeting notes that I referenced before, Appendix 1288 to 1307, they delve into that issue on the causation as well as the manifestation issue.

[00:32:09] Speaker 05:
So you read this about the latent diseases that could exist as a result of an injury, brain injury?

[00:32:19] Speaker 00:
Yes, Your Honor.

[00:32:23] Speaker 00:
But again, those associations don't meet the requirement that Congress imposed in 1988 itself.

[00:32:29] Speaker 05:
So you pointed us to the record where it shows a nexus of some kind

[00:32:38] Speaker 05:
between brain injury and the stroke.

[00:32:41] Speaker 05:
Where's the nexus for the other type of injuries like the one that Judge Timmons was talking about?

[00:32:49] Speaker 00:
So that happened in 2005, Your Honor.

[00:32:51] Speaker 00:
So that decision, those decisions, the enumerated exceptions, because TESIGLI broadly excludes coverage for a disease or illness.

[00:32:58] Speaker 00:
And it said, in these five circumstances, we're going to include coverage under TESIGLI.

[00:33:03] Speaker 00:
So that decision was made in 2005.

[00:33:04] Speaker 00:
And I don't think, besides the final decision, it's all part of the record, the decision making with respect to those rules when the Secretary promulgated them.

[00:33:30] Speaker 04:
Judge Rana, the VA has no idea how they came up with those five exceptions that are in the regulation.

[00:33:38] Speaker 04:
That's what's in the appendix.

[00:33:40] Speaker 04:
I can't cite the page to you at this moment, but I can give it to you after the fact.

[00:33:44] Speaker 04:
But they don't know why.

[00:33:46] Speaker 04:
So they don't know why they can't have a sixth one either.

[00:33:49] Speaker 04:
My colleague said that this doesn't meet the causation requirement.

[00:33:55] Speaker 04:
McKinney's petition is based on this paper from the Journal of Neurotrauma, August 2010, by Maysell and DeWitt, traumatic brain injury docs.

[00:34:05] Speaker 04:
It's been cited over 1,200 times, including by the National Academy and the CDC.

[00:34:10] Speaker 04:
It says that stroke or a laundry list of other conditions

[00:34:17] Speaker 04:
are the direct cause of a traumatic brain injury.

[00:34:20] Speaker 04:
So I don't understand what the problem is with causation.

[00:34:22] Speaker 03:
The entire medical world has accepted this paper.

[00:34:29] Speaker 03:
best a conflict in the record about this, that there's other statements, including the doctors that the VA interviewed that have different views of this.

[00:34:40] Speaker 03:
And yes, there can be correlations or associations, positive associations, but those sorts of things are not quite the same thing as a direct causal link.

[00:34:53] Speaker 03:
And so I guess my point is, I think there's a mixed record here.

[00:34:57] Speaker 03:
I don't think there is some uniform record where everybody says there's a direct causal link for strokes and many other conditions with TBI.

[00:35:09] Speaker 04:
I would respond that VA is the only one who says that there isn't a link.

[00:35:14] Speaker 04:
VA poisoned the water with the medical experts.

[00:35:17] Speaker 04:
They told them that McKinney petitioner is 52 and has a history of malignant hypertension, obesity, and smokes.

[00:35:25] Speaker 04:
None of that's true.

[00:35:26] Speaker 04:
They shouldn't have even been talking about McKinney.

[00:35:28] Speaker 04:
This rulemaking petition isn't about McKinney.

[00:35:31] Speaker 04:
It's about fixing a regulation that would affect millions of service members covered by TSGLI, the insurance.

[00:35:39] Speaker 04:
They didn't give the medical experts a copy of his petition.

[00:35:42] Speaker 04:
They didn't give the medical experts a copy of the Maysell and DeWitt article.

[00:35:47] Speaker 04:
They poisoned the water.

[00:35:48] Speaker 04:
So it's no wonder that there's a mixed record, as you say, because they directed what the record was going to say.

[00:35:56] Speaker 04:
They knew in advance what they wanted the result to be.

[00:35:59] Speaker 05:
At the end of the day, they did respond to the petition.

[00:36:03] Speaker 05:
And this is what I asked you before.

[00:36:06] Speaker 05:
I think your response to me was that,

[00:36:09] Speaker 05:
It was a very slight response.

[00:36:12] Speaker 05:
It was barely responsive.

[00:36:15] Speaker 04:
It's not responsive at all to the central thrust of the petition, which is that TBIs follow a disease process, just like those five enumerated exceptions.

[00:36:25] Speaker 04:
So you should add explosive ordinance, which causes TBIs.

[00:36:30] Speaker 05:
Let's say they did respond to your petition, at least in part.

[00:36:35] Speaker 04:
Would we have authority to go in and change that?

[00:36:38] Speaker 04:
I think you can vacate the denial.

[00:36:40] Speaker 04:
I'm not asking you to adopt a new policy on behalf of the VA.

[00:36:46] Speaker 04:
They need to get it right.

[00:36:47] Speaker 04:
They didn't analyze it properly.

[00:36:50] Speaker 05:
Well, that's a problem.

[00:36:51] Speaker 05:
We cannot adopt a new policy.

[00:36:53] Speaker 04:
I understand.

[00:36:56] Speaker 04:
But you can vacate and tell them that their process was wildly flawed and that their time delay for eight years

[00:37:05] Speaker 04:
is bad faith.

[00:37:07] Speaker 05:
I think the real struggle with your case is procedural in nature.

[00:37:12] Speaker 05:
It has to do with this, what we're talking about now, and not the fact-based type questions.

[00:37:20] Speaker 04:
There's no reason to have to get in the weeds here.

[00:37:22] Speaker 04:
Their process was very flawed.

[00:37:28] Speaker 04:
If there are no other questions, I thank the court for its time.

[00:37:30] Speaker 02:
Thank you.

[00:37:31] Speaker 02:
We thank both sides.

[00:37:32] Speaker 04:
The case is submitted.