Petition for Writ of Certiorari — Hugh Campbell McKinney, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs

Supreme Court briefApr 14, 2026

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No. 25In the

Supreme Court of the United States

HUGH CAMPBELL MCKINNEY,

Petitioner,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Seth A. Watkins

Counsel of Record

Watkins Law & A dvocacy, PLLC

1455 Pennsylvania Avenue, NW,

Suite 400

Washington, DC 20004

(202) 355-9421

watkins@wlapllc.com

Counsel for Petitioner

April 14, 2026

392259

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

The Administrative Procedure Act (“APA”) provides

that “[e]ach agency shall give an interested person the

right to petition for the issuance, amendment, or repeal

of a rule.” 5 U.S.C. § 553(e). Yet, that right is illusory: a

citizen’s petition can intentionally languish at an agency

for many years, only to be denied for reasons that utterly

strain credulity and indeed even fail to address the central

matter raised by the petitioner. And, in practice, the

agency’s denial—no matter how deficient—is essentially

unreviewable. Under 5 U.S.C. § 706(2)(A), a reviewing

court is supposed to “hold unlawful and set aside agency

action, findings, and conclusions found to be . . . arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” But the extremely deferential

standard of review under Massachusetts v. EPA, 549

U.S. 497, 527-28 (2007) (quoting Nat’l Customs Brokers

& Forwarders Ass’n of Am., Inc. v. United States, 883

F.2d 93, 96 (D.C. Cir. 1989), a 5-4 decision, precludes any

meaningful inquiry into the denial.

The question presented is:

Whether the Court should overrule Massachusetts v.

EPA with respect to the “extremely limited” and “highly

deferential” standard of review applied to the denial of a

rulemaking petition.

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner is Hugh Campbell McKinney. Respondent

is the Secretary of Veterans Affairs. No party is a

corporation.

iii

STATEMENT OF RELATED CASES

Pursuant to SCR 14.1(b)(iii), all proceedings in the

lower courts directly related to this case are:

• McKinney v. Sec’y of Veterans Affairs, No.

2023-1930 (Fed. Cir.) (judgment dated Jan.

14, 2026).

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED CASES . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1

INTRODUCTION AND

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

A. TSGLI Program and Regulatory Background . . . 6

B. Petitioner’s Rulemaking Petition, the VA’s

Eight-Year Delay, and the Denial That

Never Engaged with the Petition’s Core

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Table of Contents

Page

C. The VA’s Denial and Petitioner’s

Arguments Below . . . . . . . . . . . . . . . . . . . . . . . . . 14

D. The Federal Circuit’s Decision . . . . . . . . . . . . . . 15

REASONS FOR GRANTING THE WRIT . . . . . . . . . 16

Massachusetts v. EPA’s “Extremely

Limited” Standard Has No Basis in the

APA’s Text and Should Be Overruled . . . . . . . . 16

A. The standard’s theoretical foundation

h a s c ol l ap s e d : it w a s bu i lt on

Chevron deference, which no longer

exists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. The APA’s text requires the same

arbitrary-and-capricious review of

petition denials as of all other agency

action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. The standard is inconsistent with the

separation of powers and the judicial

duty of independent review . . . . . . . . . . . . . 21

D. The standard cannot be squared

with State Farm’s requirement of

reasoned decisionmak ing— or

with Massachusetts v. EPA’s own

practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Table of Contents

Page

II. The Standard Converts the Statutory Right

to Petition into a False Hope—as This

Case Vividly Illustrates . . . . . . . . . . . . . . . . . . . . 25

III. This Case Is an Ideal Vehicle . . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT, FILED JANUARY 14,

2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — STATUTORY PROVISIONS

AND REGULATIONS INVOLVED . . . . . . . . . . . 24a

38 U.S.C. § 1980A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24a

38 C.F.R. § 9.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34a

88 Fed. Reg. 15907 . . . . . . . . . . . . . . . . . . . . . . . . . . . 50a

86 Fed. Reg. 15448 . . . . . . . . . . . . . . . . . . . . . . . . . . . 56a

85 Fed. Reg. 50973 . . . . . . . . . . . . . . . . . . . . . . . . . . . 59a

viii

TABLE OF CITED AUTHORITIES

Cases

Page

Am. Horse Prot. Ass’n, Inc. v. Lyng,

812 F.2d 1 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . 20, 22

Auer v. Robbins,

519 U.S. 452 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Cellnet Commc’n, Inc. v. FCC,

965 F.2d 1106 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . 2

Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . 5, 6, 16, 17, 18

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ctr. for Food Safety v. Perdue,

527 F. Supp. 3d 1130 (N.D. Cal. 2021) . . . . . . . . . . . . 18

Department of Commerce v. New York,

588 U.S. 752 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

EMR Network v. FCC,

391 F.3d 269 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . 17

Flyers Rts. Educ. Fund, Inc. v. FAA,

864 F.3d 738 (D.C. Cir. 2017) . . . . . . . . . . . . . . . . . . . 20

Gulf Restoration Network v. McCarthy,

783 F.3d 227 (5th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 20

Cited Authorities

Page

Kisor v. Wilkie,

588 U.S. 558 (2019) . . . . . . . . . . . . . . . . . . . . . . . . 21-22

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . . . . 21

Massachusetts v. EPA,

549 U.S. 497 (2007) . . . . . . . . . 2, 5, 6, 14, 15, 16, 17, 18,

19, 20, 21, 22, 23, 24, 26,

27, 28, 29, 30

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) . . . . . . . . . . . 6, 20, 22, 23, 27, 28, 29

Nat’l Customs Brokers & Forwarders Ass’n

of Am., Inc. v. United States,

883 F.2d 93 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . 16

Norton v. Southern Utah Wilderness Alliance,

542 U.S. 55 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Preminger v. Sec’y of Veterans Affs.,

632 F.3d 1345 (Fed. Cir. 2011) . . . . . . . . . . . . . . . . . . 20

Verizon & AT&T, Inc. v. FCC,

770 F.3d 961 (D.C. Cir. 2014) . . . . . . . . . . . . . . . . . . . . 2

West Virginia v. EPA,

597 U.S. 697 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

WWHT, Inc. v. F.C.C.,

656 F.2d 807 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . 17, 20

Cited Authorities

Page

Statutes and Other Authorities

U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5 U.S.C. § 553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 U.S.C. § 553(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

5 U.S.C. § 555(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 21

5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

38 U.S.C. § 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

38 U.S.C. § 1980A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

38 C.F.R. § 9.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

38 C.F.R. § 9.20(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

38 C.F.R. § 9.20(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

38 C.F.R. § 9.20(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

38 C.F.R. § 9.20(c)(2)(ii) . . . . . . . . . . . . . . . . . . . . . . . . 7, 13

Cited Authorities

Page

38 C.F.R. § 9.20(d)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 29

38 C.F.R. § 9.20(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

38 C.F.R. § 9.20(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

38 C.F.R. § 9.20(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

70 Fed. Reg. 75,940 (Dec. 22, 2005) . . . . . . . . . . 4, 7, 8, 11

72 Fed. Reg. 10,362 (Mar. 8, 2007) . . . . . . . . . . . . . . . . . . 4

Admin. Conf. of the U.S., Recommendation 2014-6,

Petitions for Rulemaking (Dec. 5, 2014) . . . . . . . . . . 25

Brent E. Masel & Douglas S. DeWitt, Traumatic

Brain Injury: A Disease Process, Not an

Event, Journal of Neurotrauma 27: 1529-1540

(Aug. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9-10

Jeffrey A. Rosen, A Chance for a Second Look:

Judicial Review of Rulemaking Petition

Denials, 35 Admin. & Reg. L. News 7

(Fall 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 24, 26

Daniel E. Walters, Rulemaking Petitions in a

World Without Deference to Agencies: A New

Lease on Life?, 39 Nat. Resources & Env’t 9

(Spring 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 26

xii

Cited Authorities

Page

A my J. Wildermuth & Kathr yn A . Watts,

Massachusetts v. EPA: Breaking New Ground

on Issues Other Than Global Warming,

102 Nw. U. L. Rev. 1029 (2007) . . . . . . . . . . . . . . . . . 23

PETITION FOR A WRIT OF CERTIORARI

Petitioner Hugh Campbell McKinney (“McKinney”)

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Federal Circuit entered January 14, 2026 denying

McKinney’s Petition for Review of the denial of his

rulemaking petition submitted to the Department of

Veterans Affairs (“VA”).

OPINIONS BELOW

The decision of the court of appeals (App. 1a-23a) is

published at 164 F.4th 884 (Fed. Cir. 2026). The decision of

the Department of Veterans Affairs to deny McKinney’s

petition for rulemaking is published at 85 Fed. Reg. 50973

(Aug. 19, 2020), App. 59a-66a, and 88 Fed. Reg. 15907

(Mar. 15, 2023), App. 50a-55a.

JURISDICTION

The court of appeals issued its opinion and judgment

on January 14, 2026 (App. 1a-23a). This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent parts of 5 U.S.C. § 553 and 5 U.S.C. § 706

are as follows:

5 U.S.C. § 553. Rule making

*****

(e) Each agency shall give an interested person the right

to petition for the issuance, amendment, or repeal of a rule.

5 U.S.C. § 706. Scope of review

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall—

*****

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

*****

INTRODUCTION AND

STATEMENT OF THE CASE

This case arises from eight (8) years of bureaucratic

stonewalling, followed by a rulemaking petition denial

that the Federal Circuit was effectively powerless to

overturn. Not because the denial was well-reasoned. Not

because it fairly engaged with the petitioner’s arguments

or evidence. But because Massachusetts v. EPA, 549 U.S.

497 (2007), a 5-4 decision, instructs courts that review

of a petition denial is “extremely limited” and “highly

deferential”—a standard that, in practice, is virtually

indistinguishable from no review at all. See, e.g., Verizon

& AT&T, Inc. v. FCC, 770 F.3d 961, 966 (D.C. Cir. 2014)

(quoting Cellnet Commc’n, Inc. v. FCC, 965 F.2d 1106,

1111 (D.C. Cir. 1992)) (“review of an agency’s denial of a

rulemaking ‘is evaluated with a deference so broad as to

make the process akin to non-reviewability.’”).

Petitioner Hugh Campbell McKinney is a retired

Army First Sergeant. While leading a mounted patrol in

Kirkuk, Iraq, an improvised explosive device detonated

close to his Humvee. The blast caused a traumatic brain

injury. Twenty-one (21) months later, McKinney suffered

a debilitating stroke. Four physicians—from both VA

and private practice—agreed: the traumatic brain injury

resulted in McKinney’s stroke.

Service members are covered by a federal, traumatic

injury insurance program akin to commercial insurance

policies that civilians often carry (but which would

not cover those whose careers involve the hazards of

duty in the uniformed services). The program, known

as Traumatic Servicemembers’ Group Life Insurance

(“TSGLI”), is overseen by the VA, with authority delegated

to the uniformed services to adjudicate claims from

their members. See 38 C.F.R. § 9.20(g) & (j). McKinney

submitted a TSGLI claim, but it was denied because his

stroke was considered a “physical illness or disease”

rather than a qualifying traumatic injury.

At least beginning in 2010 with publication of a

seminal, peer-reviewed research paper by thought leaders

Drs. Brent Masel and Douglass DeWitt, a traumatic brain

injury has been understood as “the beginning of a chronic

disease process, rather than an event or final outcome.”

Brent E. Masel & Douglas S. DeWitt, Traumatic Brain

Injury: A Disease Process, Not an Event, Journal of

Neurotrauma 27: 1529-1540 (Aug. 2010). The injury

starts an “ongoing, perhaps lifelong, process that impacts

multiple organ systems.” Id. It is associated with increased

incidences of seizures, sleep disorders, neurodegenerative

diseases, neuroendocrine dysregulation, and psychiatric

diseases, as well as non-neurological disorders . . . that

may arise and/or persist for months to years post-injury.”

Id. As of May 2021 (when Dr. Masel submitted rulemaking

comments), the research paper had been cited by others,

by one measure, over 800 times, including by the National

Academy of Sciences (in 2019) and the Centers for Disease

Control and Prevention (in 2021). By the end of 2022

(i.e., prior to final denial of the rulemaking petition), the

research paper had been cited over 1,000 times.

The traumatic injury insurance was signed into law

in 2005, years before the Masel and DeWitt paper was

published. VA issued its interim final rule in December

2005, 70 Fed. Reg. 75,940 (Dec. 22, 2005), and the rule

was deemed “final” in 2007, 72 Fed. Reg. 10,362 (Mar.

8, 2007), also years before publication of that medical

research. Nevertheless, the regulation, with tweaks

over the nearly two decades of its existence, otherwise

has largely remained static with respect to its primary

standards. Yet, the medical science concerning traumatic

brain injuries has made major strides in the intervening

years since the regulation was born.

McKinney submitted a petition for rulemaking to VA

in March 2015, seeking to highlight the leaps in medical

understanding of traumatic brain injuries especially

since circa 2010, i.e., that traumatic brain injuries indeed

do operate according to a “disease process” with losses

directly traceable to the initial injury. The petition

sought to amend VA’s TSGLI regulation to account for

the advances in traumatic brain injury medical science

that occurred after VA promulgated the standards set

forth in its original regulation. But the petition clearly

struck a nerve with VA, which undertook massive delay

(the petition was submitted on March 16, 2015 and finally

denied eight years later on March 15, 2023), accompanied

seemingly by a cover up, in order to sidestep the thrust

of the petition.

VA’s final denial of McKinney’s rulemaking petition is

a textbook example of pretext, circular logic, and arbitrary

and capricious agency action. The VA relied on stale

expert consultations conducted while secretly withholding

McKinney’s petition from those experts, misrepresented

McKinney’s personal health history (which should have

been irrelevant to consideration of a rulemaking petition)

to make those experts more skeptical of the changes

he proposed to VA’s regulation, and ultimately issued a

denial that never addressed the central “disease process”

argument in the rulemaking petition.

The Federal Circuit recognized that the VA’s

“protracted delay” was “regrettable.” (App. 11a). But the

court denied the petition for review anyway. The reason

invoked the deference required by Massachusetts v. EPA:

“there is nothing in the record that warrants setting

aside the VA’s decision in light of the highly deferential

and extremely limited review we have over the VA’s

denial of a proposed rulemaking petition.” (App. 23a).

The standard—not the merits—controlled the outcome.

Massachusetts v. EPA’s “extremely limited” standard

is doubly infirm. It rests on a theoretical foundation that

has since crumbled—the Court explicitly grounded the

standard in Chevron deference and the deference-to-

agencies theory that Chevron embodied. 549 U.S.at 527,

citing Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842845 (1984). That justification is no longer tenable. And

independent of that weakness, the standard conflicts with

the APA’s text, which makes no distinction between agency

action and inaction for purposes of the arbitrary-andcapricious test, as well as with this Court’s longstanding

State Farm requirement that agencies engage in

“reasoned decisionmaking” subject to genuine judicial

scrutiny. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983). These

errors have been compounded by the lower courts, which

have read the “extremely limited” standard as a nearly

categorical license to sustain petition denials. This Court

should grant certiorari and overrule Massachusetts v.

EPA on this point.

A. TSGLI Program and Regulatory Background

The TSGLI program was established by Congress

in May 2005 and became effective December 1, 2005, to

provide financial assistance to servicemembers who suffer

severe traumatic injuries. See 38 U.S.C. § 1980A.1 Congress

designed TSGLI to fill a financial “gap” in benefits

during the period immediately after a servicemember

suffers a traumatic injury—the moment when the need

for additional financial resources becomes most acute,

before veterans’ benefits kick in. TSGLI is modeled

after commercial Accidental Death and Dismemberment

(AD&D) insurance, but adapted to account for the unique

hazards of military service. Payments range from $25,000

to $100,000 and have not changed since the program’s

1. Pub. L. No. 109-13, 119 Stat. 257, 260 (2005), codified at 38

U.S.C. § 1980A.

inception about two decades ago. As of fiscal year 2023,

approximately 2.1 million servicemembers were enrolled,

and over $1.1 billion in cumulative benefits has been paid

since the program began.

By regulation, TSGLI covers servicemembers who

experience (1) a “traumatic event” that results in (2)

a “traumatic injury” directly causing (3) a qualifying

“scheduled loss.” 38 C.F.R. § 9.20. A “traumatic event”

means, inter alia, the application of external force,

violence, chemical, biological, or radiological weapons, or

accidental ingestion of a contaminated substance causing

damage to a living body. Id. at § 9.20(b)(1). A “traumatic

injury” is defined as “physical damage to a living body

that is caused by a traumatic event,” with an express

exclusion for “physical illness or disease.” Id. § 9.20(c)

(1)-(2). Qualifying scheduled losses include loss of limbs,

severe burns, traumatic brain injury, paralysis, and loss

of the ability to perform activities of daily living. Id. at

§ 9.20(e); 38 C.F.R. § 9.21(c).

The exclusion of “physical illness or disease” from

TSGLI coverage is subject to five narrow exceptions.

Under the regulation, TSGLI does cover physical illness

or disease caused by: (1) a pyogenic infection, (2) biological

weapons, (3) chemical weapons, (4) radiological weapons,

or (5) accidental ingestion of a contaminated substance.

38 C.F.R. § 9.20(c)(2)(ii). When the VA promulgated these

five exceptions in its December 2005 interim final rule,

it explained its rationale in terms that are central to this

case: the VA covered physical illness or disease from

these five hazards specifically “[b]ecause the process

by which such hazards produce immediate harm may

be characterized as a disease process.” 70 Fed. Reg. at

75,941-42 (emphasis added). The VA further explained that

these five hazards are “unique hazards of military service”

under which “physical damage resulting in a covered loss

would generally occur immediately and require prompt

medical treatment.” Id. The VA’s own regulatory language

thus made the “disease process” concept the load-bearing

justification for the five enumerated exceptions.

To be eligible for any TSGLI benefit, a servicemember

must suffer a scheduled loss within two (2) years of the

traumatic injury. 38 C.F.R. § 9.20(d)(4). The VA itself

acknowledged in promulgating the regulation that “it is

difficult to determine with any accuracy the time period

within which loss due directly to the traumatic injury can

be expected to occur.” 70 Fed. Reg. at 75,942. Accordingly,

the regulation allows a scheduled loss to occur up to two

(2) years after the traumatic event, even if the loss occurs

after the servicemember has been separated from duty.

The two-year window reflects the VA’s recognition that

harm from a traumatic event does not always manifest

immediately.

The TSGLI regulation’s architecture thus contains

a foundational tension. On the one hand, it excludes

“physical illness or disease” from coverage in general—

premised on the notion that illness or disease involves an

“internal infection or degenerative process” rather than

external trauma. 70 Fed. Reg. at 75,941. On the other

hand, it expressly covers five categories of physical illness

or disease caused by unique hazards of military service,

precisely because those hazards produce harm through

a disease process. And it allows a two-year window for

that harm to manifest. The central question McKinney’s

rulemaking petition raised—and which the VA refused to

meaningfully answer—is why explosive ordnance causing

a traumatic brain injury should be treated differently

from those five enumerated hazards, when improvised

explosive devices are equally a unique hazard of military

service that produce immediate bodily harm through a

disease process.

B. Petitioner’s Rulemaking Petition, the VA’s EightYear Delay, and the Denial That Never Engaged

with the Petition’s Core Argument

McKinney sustained a traumatic brain injury from

the concussive force of an IED blast on October 9, 2005,

while serving in Iraq as a platoon sergeant. Twenty-one

(21) months later, on July 21, 2007—within the two-year

coverage window—he suffered a debilitating stroke at

age 46. For more than sixty (60) days after the stroke,

he was unable to perform basic activities of daily living

independently. McKinney’s health had been robust before

his deployment; four physicians—two from the VA and two

from private practice—have all opined that the explosion

of the improvised explosive device caused a traumatic

brain injury that in turn caused the stroke. He had no

standard risk factors that would independently explain the

stroke. His TSGLI claim was denied nonetheless, because

the Army classified his stroke as a “physical illness or

disease” rather than a qualifying traumatic injury.

The medical science underpinning McKinney’s claim

had been developing rapidly. In August 2010, Drs. Brent

Masel and Douglas DeWitt published a landmark, peerreviewed paper establishing that a traumatic brain injury

is “the beginning of a chronic disease process, rather than

an event or final outcome.” Brent E. Masel & Douglas S.

DeWitt, Traumatic Brain Injury: A Disease Process, Not

an Event, Journal of Neurotrauma 27: 1529-1540 (Aug.

2010). The science was not obscure or contested; it was

foundational.

On March 16, 2015, McKinney submitted a 26-page

petition for rulemaking to the VA, supported by extensive

citations to the medical literature. The petition’s argument

was straightforward and grounded directly in the VA’s

own regulatory language. It observed that the VA had

already recognized five categories of unique military

hazards that produce immediate harm through a “disease

process”—and that improvised explosive devices operate

in exactly the same way. Just as exposure to biological or

chemical weapons produces immediate bodily harm that

then follows a disease process, traumatic brain injuries

caused by blasts produce immediate bodily harm that

follows a chronic disease process, with downstream

conditions—including stroke—that may manifest within

the two-year coverage window the VA’s own regulation

already contemplates. The petition sought to amend 38

C.F.R. § 9.20 to add a sixth category of physical illness

or disease caused by unique hazards of military service,

i.e., explosive ordnance (and hence covered by TSGLI).

The petition’s central concept was the term “disease

process.” McKinney used the term thirty-four (34) times

across his 26-page petition. Every major argument

in the petition turned on this concept: that traumatic

brain injuries follow a disease process just as the five

enumerated exceptions from the 2005-07 rulemaking do;

that the VA’s own rationale for the five exceptions applies

with equal force to improvised explosive device-induced

traumatic brain injuries; and that the VA’s regulation

already recognized the two-year window within which

that disease process can produce a qualifying scheduled

loss. The petition quoted the VA’s own 2005 interim final

rule language—“the process by which such hazards

produce immediate harm may be characterized as a

disease process,” 70 Fed. Reg. at 75,941—and argued that

this phrase applied with equal logical force to explosive

ordnance and traumatic brain injuries. The petition also

proposed a specific regulatory text amendment and a

definition of “explosive ordnance” for inclusion in the

regulation.

What followed was an eight (8) year odyssey of delay,

broken promises, and bad-faith consideration. The VA

initially denied the petition within five (5) months without

any substantive analysis, then rescinded that denial after

McKinney sought review at the court of appeals. The VA

promised rulemaking by 2017; it did not publish a proposed

rule until August 2020. 85 Fed. Reg. 50,973 (App. 59a-66a).

During those years, the VA secretly kept the petition under

an internal “embargo”—a document in the administrative

record stated plainly that “VA cannot provide a copy of

the petition or its initial response to the petitioner as the

information is embargoed and cannot be released outside

of our office.” The VA consulted outside medical experts

in 2015-16 without providing them a copy of the petition or

the medical literature cited therein. When it did consult

those experts, it misrepresented McKinney’s personal

health history, describing him as fifty-two (52) years old

with a history of malignant hypertension, obesity, and

smoking—none of which was true. (He was 54 at the time,

but 44 when he was injured in Iraq and 46 when he suffered

a stroke, had no such conditions, and as a practicing

Mormon did not smoke.) These misrepresentations were

used to elicit more skeptical expert reactions. The VA’s

expert consultations then went stale for over seven (7)

years before the final denial.

After McKinney submitted extensive additional

comments—and after Dr. Masel, the co-author of the

seminal journal article about brain injuries following a

disease process, himself submitted comments supporting

the petition, confirming that a traumatic brain injury

“from explosive ordnance follows a disease process” and

that the same rationale justifying the five enumerated

exceptions “justifies a sixth Enumerated Exception for

physical illness or disease due to explosive ordnance”—the

VA issued its final denial on March 15, 2023. 88 Fed. Reg.

15,907 (App. 50a-55a). The denial came 2,921 days after

McKinney had filed his petition.

The most revealing feature of the VA’s denial is what

it did not say. McKinney’s petition used the term “disease

process” thirty-four (34) times. The VA’s August 2020

proposed denial did not use the term “disease process” at

all. Zero times. The VA’s March 2023 final denial used the

term exactly once—and only to acknowledge a comment

submitted by Dr. Masel: “We received another comment

from a licensed physician . . . [who] stated that [a traumatic

brain injury (TBI)] from explosive ordnance follows a

disease process.” 88 Fed. Reg. at 15,909 (App. 55a). The

VA then declined to engage with that comment on the

merits. In a 26-page petition the thrust of which turned

on whether traumatic brain injuries follow a disease

process in the same way as (1) a pyogenic infection, (2)

biological weapons, (3) chemical weapons, (4) radiological

weapons, or (5) accidental ingestion of a contaminated

substance, the VA’s denial across both the proposed and

final rules managed to engage with this central concept—

the very language the VA itself had used to justify the

five enumerated exceptions—a combined total of one (1),

non-substantive time.

Instead, the VA’s denial pivoted to arguments that

were either beside the point or internally contradictory.

It argued that “the word ‘disease’ does not appear in the

[TSGLI] statute”—ignoring that the VA’s own regulation

expressly covers “physical illness or disease” caused by

the five enumerated exceptions, using the word “disease”

repeatedly. 38 C.F.R. § 9.20(c)(2)(ii); 85 Fed. Reg. at 50,983

(App. 64a). It argued that traumatic brain injury-induced

illness “may not immediately manifest” and “may have

a latency of months to years,” id., ignoring that the VA’s

own regulation already contemplates scheduled losses

occurring up to two (2) years after the traumatic event,

and that VA’s own internal research identified over a dozen

traumatic brain injury-linked conditions that manifest

within two (2) years, including stroke (which the VA’s own

cited study showed occurring on average 543 days after

a traumatic brain injury, i.e., less than two (2) years). It

argued the coverage would be inconsistent with TSGLI’s

model of commercial AD&D insurance, id. at 50,98283, ignoring that the VA itself had modeled TSGLI to

account for “the unique needs of military personnel”

and had already departed from commercial AD&D by

covering five categories of illness and disease from unique

military hazards. And it conceded that “IEDs are a unique

hazard of military service,” id. at 50,982 (App. 63a)—the

precise predicate for adding explosive ordnance to the

regulation—while inexplicably declining to follow that

concession to its logical conclusion.

In sum, the VA conceded the factual premise of

McKinney’s petition (improvised explosive devices are

a unique military hazard), acknowledged that traumatic

brain injury-linked conditions including stroke can occur

within the two (2) year coverage window, and offered no

coherent explanation for why explosive ordnance should

be treated differently from the five (5) unique hazards

already enumerated in its regulation. What it never did—

across either the proposed or final denial—was engage

with the core legal and medical argument that traumatic

brain injuries follow a disease process in the same way

that the five already-recognized hazards do. The word

“disease process” says it all: the VA invoked it to justify

the five (5) exceptions it created, then refused to apply it

when confronted with a sixth (6th) hazard that operates

the same way.

C. The VA’s Denial and Petitioner’s Arguments Below

McKinney sought review in the Federal Circuit under

38 U.S.C. § 502. He advanced three main arguments:

(1) the VA’s eight-year delay, secrecy, misrepresentation

of his health history to outside experts, and failure to

conduct its promised actuarial assessment constituted bad

faith; (2) the administrative record was incomplete and

required supplementation before meaningful review could

occur; and (3) the VA’s denial was arbitrary and capricious

because it failed to engage with the “disease process”

argument at the heart of the petition, contradicted the

VA’s own prior rulemaking rationales, and rested on

pretextual justifications. McKinney also contested—and

now presents to this Court—the “extremely limited” and

“highly deferential” standard of review that Massachusetts

v. EPA imposes on review of rulemaking petition denials.

D. The Federal Circuit’s Decision

The Federal Circuit denied McKinney’s petition. App.

1a-23a. Applying the “extremely limited” and “highly

deferential” standard drawn from Massachusetts v.

EPA, the court of appeals found the VA’s eight (8) year

delay “regrettable” but, inexplicably, not indicative of bad

faith. App. 11a-13a. It found the administrative record

adequate despite its sparseness. App. 14a-18a. And it

upheld the VA’s denial as representing sufficient “reasoned

decisionmaking,” App. 19a, under the deferential

standard—even though the VA’s proposed and final denials

avoided altogether the term “disease process,” failing to

engage with the argument that McKinney had pressed

thirty-four (34) times across his rulemaking petition and

through eight (8) years of administrative proceedings.

The Federal Circuit acknowledged that McKinney’s

core arg ument was that the VA “arbitrarily and

capriciously denied his rulemaking petition by (1) not

addressing his ‘disease process’ argument.” App. 18a. The

court disagreed, inexplicably, finding it “incorrect that the

VA did not address his ‘disease process’ argument.” App.

19a. But the court’s reasoning illustrates the problem:

it credited the VA’s oblique, non-responsive discussion

of immediacy and causation as sufficient engagement

with an argument the VA’s own denial never named

or confronted directly. App. 18a-23a. Under genuine

arbitrary-and-capricious review, a petitioner who invokes

a term thirty-four (34) times in a rulemaking petition, and

receives a denial that uses it zero (0) times in response, has

received no reasoned engagement at all. Under “extremely

limited” review, nonsensical or nonexistent explanations

for denying a petition prevail.

The court of appeals was transparent about the

determinative weight of the deferential standard: “there is

nothing in the record that warrants setting aside the VA’s

decision in light of the highly deferential and extremely

limited review we have over the VA’s denial of a proposed

rulemaking petition.” App. 23a. The standard—not the

merits of McKinney’s petition—controlled the outcome.

REASONS FOR GRANTING THE WRIT

Massachusetts v. EPA’s “Extremely Limited”

Standard Has No Basis in the APA’s Text and

Should Be Overruled.

Massachusetts v. EPA established, by a 5-4 vote,

that judicial review of an agency’s denial of a rulemaking

petition is subject to a standard that is “extremely

limited” and “highly deferential.” 549 U.S. at 527-28. The

“extremely limited” label the majority borrowed from

D.C. Circuit precedent—National Customs Brokers—

was adopted without independent statutory analysis and

without engaging the dissent’s challenges. A standard

adopted by a bare majority, without textual grounding,

and explicitly rooted in a deference doctrine that has

since been repudiated, stands on no durable foundation.

It should now be overruled.

The standard’s theoretical foundation has

collapsed: it was built on Chevron deference,

which no longer exists.

Massachusetts v. EPA did not justify its “extremely

limited” standard by reference to the APA’s text.

Instead, the majority grounded the standard in Chevron

deference, invoking Chevron’s rationale that “an agency

has broad discretion to choose how best to marshal its

limited resources and personnel to carry out its delegated

responsibilities.” 549 U.S. at 527. The Court’s theory

was that petition denials implicate the same kind of

agency discretion that Chevron deference was designed

to protect. As one commentator has observed, under the

Massachusetts v. EPA framework, “an agency could argue

that the statute was ambiguous and that it would adopt

the meaning that did not require any action in response to

a petition, and courts would have to honor that denial so

long as the agency’s interpretation was reasonable (even

if not preferred).” 2

T he dept h of t he deference problem before

Massachusetts v. EPA illustrates how thoroughly

Chevron infected petition review. Decades following the

D.C. Circuit’s WWHT, Inc. v. F.C.C., 656 F.2d 807, 81718 (D.C. Cir. 1981), courts applied an especially lenient

form of arbitrary-and-capricious review, overturning

petition denials “only in the rarest and most compelling

of circumstances.” EMR Network v. FCC, 391 F.3d 269,

273 (D.C. Cir. 2004). The two narrow categories where

petitioners could prevail were: (a) clear error of law and

(b) a fundamental change in the factual premises

the agency had previously considered. See Jeffrey A.

Rosen, A Chance for a Second Look: Judicial Review of

Rulemaking Petition Denials, 35 Admin. & Reg. L. News

7 (Fall 2009). Both categories were themselves rooted

2. See Daniel E. Walters, Rulemaking Petitions in a World

Without Deference to Agencies: A New Lease on Life?, 39 Nat.

Resources & Env’t 9, 12 (Spring 2025) (noting that “Massachusetts

v. EPA explicitly tethered its discussion of the standard of review

for petition denial cases to the Chevron decision”).

in the Chevron-era premise that agencies otherwise

enjoyed wide latitude to interpret ambiguous statutes to

permit inaction. With that premise gone, the categorical

narrowness of the pre-Massachusetts v. EPA framework

has no remaining justification. And notably, this case fits

both of those historical exceptions: the VA committed

clear legal error by refusing to engage with the central

argument of McKinney’s petition, and the factual premises

underlying the 2005 regulation were fundamentally

transformed by over a decade of research on traumatic

brain injuries that the VA declined to acknowledge.

Courts deferred to agency denials of petitions for

the same reasons they used to defer more generally to

agency action: because Chevron and related doctrines

established a general regime in which agencies received

first choice among reasonable statutory interpretations.

That regime has ended. See, e.g., Walters, supra (noting

that Massachusetts v. EPA “explicitly tethered its

discussion of the standard of review for petition denial

cases to the Chevron decision”). Massachusetts v. EPA’s

deferential standard for petition denials was a natural

product of that broader environment, but it cannot survive

the environment’s collapse. A standard explicitly rooted

in a doctrine that has been repudiated stands on no

foundation of its own.

Lower courts, meanwhile, have applied the “extremely

limited” standard in ways that make its Chevron-derived

logic explicit. In Center for Food Safety v. Perdue, for

example, the court upheld a petition denial because the

agency offered an “equally persuasive interpretation” of

the relevant statute—even though the court found the

agency’s reading “strained.” 527 F. Supp. 3d 1130, 1142

(N.D. Cal. 2021).

B. The APA’s text requires the same arbitraryand-capricious review of petition denials as of

all other agency action.

Section 706(2)(A) of the APA commands courts to

“hold unlawful and set aside agency action, findings, and

conclusions found to be . . . arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A). The statute draws no distinction

based on the direction of the agency’s decision (to grant

or deny the petition). It governs affirmative rulemaking

and a refusal to engage in rulemaking alike. The same

standard—arbitrary and capricious—applies to both.

5 U.S.C. § 706(2)(A).

The APA further provides that “[e]ach agency shall

give an interested person the right to petition for the

issuance, amendment, or repeal of a rule,” 5 U.S.C.

§ 553(e), and separately requires that agencies provide

“a brief statement of the grounds for denial” when

rejecting such a petition. 5 U.S.C. § 555(e). Congress

thus treated petition denials as a discrete species of final

agency action subject to the same procedural and judicialreview requirements as affirmative rulemaking decisions.

Had Congress intended a more deferential standard for

petition denials, it would have said so.

Massachusetts v. EPA departed from this textual

baseline by importing a super-deferential gloss that has

no foothold in Section 706’s text. The courts of appeals

have treated that gloss as binding across widely varying

circumstances, regardless of the quality of the agency’s

explanation or the strength of the petitioner’s showing.

The label does all the work: reviewing courts satisfy

themselves by invoking “extremely limited” review and

proceeding no further. See, e.g., WWHT, Inc. v. FCC, 656

F.2d at 817-18; Flyers Rts. Educ. Fund, Inc. v. FAA, 864

F.3d 738, 743, 746 (D.C. Cir. 2017); Preminger v. Sec’y of

Veterans Affs., 632 F.3d 1345, 1353 (Fed. Cir. 2011); Am.

Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d 1, 4-5 (D.C. Cir.

1987); Gulf Restoration Network v. McCarthy, 783 F.3d

227, 244 (5th Cir. 2015) (holding agency’s “burden is slight”

and requires only “some reasonable explanation as to why

it cannot or will not exercise its discretion”).

This Court has long recognized that Congress, in

enacting the APA, intended to create a system of rigorous

judicial oversight of executive agency action. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415

(1971), required courts to conduct a “thorough, probing,

in-depth review” of agency action. State Farm reinforced

that mandate. And Massachusetts v. EPA’s “extremely

limited” standard is irreconcilable with that tradition.

It converts the APA’s substantive guarantee of meaningful

review into a procedural formality.

Importantly, the textual argument applies across the

full range of petition denials. Where a petition argues that

a statute requires the agency to act, the denial raises a

question of law that courts must resolve by independent

judgment. There is no room for absolute, unwavering

deference to an agency’s statutory interpretation where

courts must identify the law’s single correct meaning.

Where the petition argues the agency has exercised its

discretion arbitrarily, the same State Farm standard

applies that governs arbitrary-and-capricious challenges

to affirmative rulemaking. In neither case does the text

support an “extremely limited” standard. Walters, supra,

at 12.

The standard is inconsistent with the separation

of powers and the judicial duty of independent

review.

The Constitution vests the “judicial Power” in the

Article III courts. U.S. Const. art. III, § 1. As Chief

Justice Marshall explained, “[i]t is emphatically the

province and duty of the judicial department to say what

the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803). The APA operationalizes this principle by charging

reviewing courts with deciding “all relevant questions of

law” and setting aside agency action that fails the statute’s

standards. 5 U.S.C. § 706. These are judicial functions

that courts must discharge with genuine independent

judgment—not defer away.

Massachusetts v. EPA’s “extremely limited” standard

subverts this constitutional assignment. By directing

courts to be maximally deferential toward an agency’s

decision not to act, the standard effectively transfers the

reviewing function from the judiciary to the agency whose

decision is under review. The agency becomes, in essence,

the judge of the adequacy of its own reasoning. That is not

how the separation of powers is supposed to work, and it

is not what the APA provides.

This Court has moved consistently in the direction of

restoring independent judicial oversight of the executive

branch. The Court has confined regulatory deference

doctrines that previously invited courts to abdicate their

reviewing role, invoked the major questions doctrine

to foreclose broad assertions of agency power, and

reaffirmed that courts bear ultimate responsibility for

ensuring executive action complies with the law. Kisor v.

Wilkie, 588 U.S. 558, 589 (2019) (limiting Auer v. Robbins,

519 U.S. 452 (1997)); West Virginia v. EPA, 597 U.S. 697,

724 (2022) (major questions doctrine). Massachusetts v.

EP’’s standard for petition denials stands as an anomalous

exception to that trajectory—insulating an entire category

of agency decisions from the independent judicial scrutiny

the Constitution and APA both require.

The structural problem is especially acute in

the petition denial context. When an agency denies

a rulemaking petition, the petitioner has no other

mechanism to obtain a regulatory change. The sole option

available to a petitioner is to follow the petition process

and subsequently seek judicial review. Rulemaking

petitions, as this Court held in Massachusetts v. EPA,

are unlike nonenforcement decisions: they are “less

frequent, more apt to involve legal as opposed to factual

analysis, and subject to special formalities, including a

public explanation.” 549 U.S. at 527, quoting Am. Horse

Prot. Ass’n, 812 F.2d at 4. Those features, which the Court

cited to justify any judicial review at all, equally support

genuine judicial review. If that review is “extremely

limited,” the check against arbitrary agency inaction

disappears entirely, and an agency that wishes to preserve

the regulatory status quo—regardless of what the record

shows—faces no meaningful judicial accountability.

The sta nda rd ca nnot be squa red with

State Farm’s requirement of reasoned

decisionmaking—or with Massachusetts v.

EPA’s own practice.

Well before Massachusetts v. EPA, this Court

held in State Farm that the arbitrary-and-capricious

standard requires agencies to engage in “reasoned

decisionmaking”—to examine the relevant factors,

consider the relevant evidence, and articulate a satisfactory

explanation for their choices. 463 U.S. at 43. That

framework is not confined to affirmative agency action.

It applies equally when an agency decides not to regulate.

Massachusetts v. EPA’s “extremely limited” gloss

is irreconcilable with State Farm. If a court’s review is

truly “extremely limited,” it cannot meaningfully assess

whether the agency examined the relevant evidence,

considered the relevant factors, or offered a reasoned

explanation. In this case, the VA never engaged with the

central “disease process” argument McKinney raised

across eight (8) years of proceedings. The Federal Circuit

acknowledged as much, yet found the denial sufficient

under the maximally deferential standard. That result

would be impossible under genuine State Farm review.

Notably, Massachusetts v. EPA itself was internally

inconsistent on this point. After announcing the “extremely

limited” standard, the Court proceeded to review the

EPA’s petition denial in a manner that commentators have

described as a “far cry” from what one would expect of

“highly deferential” review—holding that the agency’s

alternative basis for denial “rests on reasoning divorced

from the statutory text.” 3 This self-contradiction within

3. See, e.g., A my J. Wildermuth & Kathr yn A . Watts,

Massachusetts v. EPA: Breaking New Ground on Issues Other Than

Global Warming, 102 Nw. U. L. Rev. 1029, 1040-41 (2007) (noting

that the Court’s “actual review of the EPA’s reasons for declining

to regulate” was a “far cry from what one would expect of ‘highly

deferential’ review” and that “[t]here are petitions—and then there

are petitions”).

Massachusetts v. EPA suggests that even the Court that

announced the standard recognized its incompatibility

with meaningful review. The lower courts have not

followed the Court’s practice; they have followed its words,

treating “extremely limited” as categorical permission to

sustain petition denials with little scrutiny.

The Court’s actual practice in Massachusetts v. EPA

reveals the correct standard: agencies must “ground

[their] reasons for action or inaction in the statute.” 549

U.S. at 535; see also Rosen, supra, at 8 (noting the Court’s

rejection of “policy, resource, and other discretionary

considerations” as grounds for a petition denial, holding

them “inappropriate” when divorced from the statutory

text).

The Court proceeded to parse the EPA’s list of policy

justifications—ranging from a desire to avoid piecemeal

regulation to concerns about interfering with Presidential

foreign policy—and rejected each one precisely because

they were divorced from the statutory text. Policy,

resource, and other prudential considerations that do

not relate to the governing statute are impermissible

grounds for a petition denial. Rosen, supra, at 8 Under

that framework, a court reviewing a petition denial must

ask whether the agency’s reasons are grounded in the

statute—not whether the agency has offered any plausible

explanation at all. The “extremely limited” label the Court

used cannot be reconciled with the searching, statutegrounded inquiry the Court itself conducted.

As this Court observed in Department of Commerce v.

New York, 588 U.S. 752, 784-85 (2019), when agency action

tells “a story that does not match the explanation the

[agency] gave for [its] decision,” a court exercising proper

review must say so. The “extremely limited” standard

forecloses exactly that inquiry. It invites agencies to offer

perfunctory, non-responsive justifications for petition

denials, confident that reviewing courts are constrained

from looking too closely. The result is that the right to

petition for rulemaking—which Congress expressly

provided—becomes an empty formality.

II. The Standard Converts the Statutory Right to

Petition into a False Hope—as This Case Vividly

Illustrates.

The rulemaking petition is a critical democratic

mechanism. When an agency fails to act on a matter

within its statutory authority—whether due to resource

constraints, regulatory inertia, or political pressure to

preserve the status quo—the petition process is often

the only available means for affected parties to force a

public reckoning with the agency’s inaction. In 2014, the

Administrative Conference of the United States (“ACUS”)

found that “few agencies have in place official procedures

for accepting, processing, and responding to petitions

for rulemaking” and that “[h]ow petitions are received

and treated varies across—and even within—agencies.”

See Admin. Conf. of the U.S., Recommendation 2014-6,

Petitions for Rulemaking (Dec. 5, 2014). The current

regime—in which petition denials face only “extremely

limited” review—enables exactly this dysfunction.

That dysfunction is compounded by a pervasive lack

of governmental transparency about the petition process

itself. There is no uniform system for publishing petition

denials: some agencies publish them in the Federal

and some appear not to publish them at all. Rosen, supra,

at 9. This opacity perpetuates the conventional wisdom

that agencies have plenary control over rulemaking

petitions—an impression that “extremely limited”

review does nothing to dispel. When petitioners cannot

readily learn how agencies have handled petitions raising

similar arguments, and when courts cannot meaningfully

scrutinize the agency’s reasoning, the feedback loop that

might otherwise discipline agency behavior is severed

entirely.

The petition mechanism’s practical importance

is compounded by the limits that Norton v. Southern

Utah Wilderness Alliance, 542 U.S. 55 (2004), places on

challenges to agency inaction generally. Under Norton,

judicial review of an agency’s general failure to act is

available only where “a plaintiff asserts that an agency

failed to take a discrete agency action that it is required

to take”—meaning “broad programmatic attack[s]” on

agency administration are foreclosed, as are challenges

to “discrete agency action that is not demanded by law.”

Id. at 64-65. Rulemaking petitions are the mechanism

that converts otherwise nonjusticiable inaction into

a reviewable discrete agency action—the denial of

the petition itself. But as one scholar has observed,

this “workaround” becomes “a false hope for wouldbe challengers of agency inaction” when courts grant

petition denials the same near-unreviewable status as

the underlying inaction they were designed to redress.

Walters, supra, at 11. Massachusetts v. EPA’s standard

accomplishes exactly that, and the result is that the

statutory right to petition provides meaningful leverage

only as a theoretical matter.

This McKinney case is a paradigmatic illustration.

Over eight (8) years, the VA: (1) kept McKinney’s petition

under an internal “embargo”; (2) consulted medical experts

without giving them a copy of the petition or the medical

literature McKinney presented; (3) misrepresented

McKinney’s personal health history (irrelevant to

considering a rulemaking petition advocating a change

in regulation) to bias those experts against his petition;

(4) allowed those expert consultations to go stale for over

seven (7) years before issuing a final denial; (5) failed to

conduct the actuarial assessment it had promised; and

(6) issued a denial that never addressed the core “disease

process” argument. The Federal Circuit found all of this

“regrettable” but legally insufficient to vacate the denial

under the “extremely limited” standard. App. 11a.

That outcome is a direct consequence of the standard’s

permissiveness. Because agencies know their petition

denials will face only “extremely limited” scrutiny, there

is little incentive to respond to petitions in a timely,

transparent, or substantive manner. ACUS recognized

exactly this problem over a decade ago, but the judicial

tools needed to address it remain unavailable under

Massachusetts v. EPA’s regime.

The structural asymmetry produced by the current

standard is also deeply concerning. When an agency

chooses to regulate, its action is subject to rigorous State

Farm review: the agency must examine the relevant

evidence, weigh the relevant factors, and articulate a

reasoned explanation. When an agency chooses not to

regulate—by denying a petition—the current standard

demands only some facially plausible justification, however

unresponsive to the petitioner’s arguments. There is no

principled reason to subject agencies to less scrutiny for

refusing to regulate than for regulating. Both decisions

carry significant consequences for affected parties. Both

are equally susceptible to the arbitrary exercise of agency

discretion. Both are equally committed by the APA to

judicial review under the same standard. The asymmetry

Massachusetts v. EPA creates incentivizes inaction and

insulates it from accountability.

This problem is especially acute in this case because

of the pace at which traumatic brain injury research has

advanced. McKinney’s petition drew on peer-reviewed

literature establishing traumatic brain injuries as a

chronic disease process—including a seminal 2010 paper

that had been cited over 1,000 times by the time of the

final denial, including by the National Academy of Sciences

and the Centers for Disease Control and Prevention. The

VA, however, relied on expert consultations from 201516—seven (7) years prior—conducted without the benefit

of McKinney’s petition or the medical literature it cited.

And the VA’s final denial used the term “disease process”

exactly one (1) time across both the proposed and final

rules—not to engage with McKinney’s argument, but only

to note that a physician commenter had used the phrase.

A court exercising genuine State Farm review would

have no difficulty identifying the gap between a 26-page

petition that used the term “disease process” thirty-four

(34) times and a denial that never once engaged with it on

the merits. Under “extremely limited” review, the Federal

Circuit was effectively precluded from doing so.

Moreover, the VA’s denial was internally contradictory

in ways that ordinary arbitrary-and-capricious review

would readily expose. The VA denied the petition in part

because traumatic brain injury-induced illness “may have

a latency of months to years before manifesting.” 85 Fed.

Reg. at 50,983 (App. 63a). Yet the VA’s own regulation

permits scheduled losses occurring within two (2) years

of a traumatic injury, 38 C.F.R. § 9.20(d)(4), and VA’s

own research in the administrative record showed that

multiple traumatic brain injury-induced conditions—

including stroke, hypertension, coronary artery disease,

and diabetes—manifest within two (2) years. The VA even

cited a study showing that the average time between a

traumatic brain injury and stroke onset was 543 days—

well within the two (2) year window. A court exercising

genuine State Farm review would have no difficulty

concluding that this denial should not survive scrutiny.

Yet the “extremely limited” standard allowed it to stand.

III. This Case Is an Ideal Vehicle.

This case presents the question of whether to overrule

Massachusetts v. EPA’s extremely deferential standard

with exceptional clarity. The Federal Circuit explicitly

applied the standard and acknowledged it as controlling

and outcome-determinative. App. 23a. The court’s holding

that “there is nothing in the record that warrants setting

aside the VA’s decision in light of the highly deferential and

extremely limited review” makes plain that the standard,

not the merits of McKinney’s petition, drove the result. Id.

The question is also cleanly preserved. McKinney

contested the “extremely limited” standard before the

Federal Circuit as inconsistent with the APA’s text. He now

presents that argument to this Court, supported by the

fully developed record below. There are no jurisdictional

complications, no threshold issues that might prevent the

Court from reaching the merits, and no ambiguity about

whether the standard was outcome-determinative.

This case also provides something that has been

missing from the post-Massachusetts v. EPA case law:

a suitable vehicle for exploring the outer boundaries of

judicial review of petition denials. The lower courts have

invoked “extremely limited” review to sustain petition

denials without testing whether Massachusetts v.EPA’s

own exacting practice—as opposed to its deferential

label—represents the correct standard. The McKinney

record, spanning eight (8) years of futile rulemaking,

now provides this Court with exactly the vehicle that

commentators anticipated: a case where the standard’s

outcome-determinative effect is undeniable, the record

of agency conduct is well-developed, and the question is

ripe for clear resolution.

The record is also rich for a petition denial case.

Indeed, the record here spans eight (8) years of agency

action. It includes the petitioner’s rulemaking submission

relying on extensive medical literature, the VA’s expert

consultation summaries (including one containing the

health-history misrepresentation), the VA’s Year-Ten

Review report about TSGLI, and public comments

from McKinney and from the co-author of the leading

traumatic brain injury, “disease process” medical journal

article. That record allows this Court to see precisely

what “extremely limited” review conceals: substantive

arbitrariness that more rigorous review would correct.

Finally, the case involves a veteran who suffered

a combat injury and a stroke that four (4) physicians

linked to that injury. His TSGLI claim has been denied,

and his rulemaking petition—the only avenue available

to him to seek a change in the regulation that produced

that denial—was rejected after eight (8) years with no

meaningful judicial check. The human stakes could not

be clearer. The need for this Court’s guidance also could

not be more clear.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Seth A. Watkins

Counsel of Record

Watkins Law & A dvocacy, PLLC

1455 Pennsylvania Avenue, NW,

Suite 400

Washington, DC 20004

(202) 355-9421

watkins@wlapllc.com

Counsel for Petitioner

Date: April 14, 2026

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT, FILED JANUARY 14,

2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — STATUTORY PROVISIONS

AND REGULATIONS INVOLVED . . . . . . . . . . . 24a

38 U.S.C. § 1980A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24a

38 C.F.R. § 9.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34a

88 Fed. Reg. 15907 . . . . . . . . . . . . . . . . . . . . . . . . . . . 50a

86 Fed. Reg. 15448 . . . . . . . . . . . . . . . . . . . . . . . . . . . 56a

85 Fed. Reg. 50973 . . . . . . . . . . . . . . . . . . . . . . . . . . . 59a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FEDERAL CIRCUIT,

FILED JANUARY 14, 2026

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

2023-1930

Petition for review pursuant to 38 U.S.C. Section 502.

HUGH CAMPBELL MCKINNEY,

Petitioner,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

Decided: January 14, 2026

Before Prost, Reyna, and Chen, Circuit Judges.

Chen, Circuit Judge.

Hugh Campbell McKinney petitioned the United

States Department of Veterans Affairs (VA’s) to institute

rulemaking to expand coverage of the Traumatic

Servicemembers’ Group Life Insurance (TSGLI) to

include illness or disease caused by explosive ordnance.

See Servicemembers’ Group Life Insurance Traumatic

Injury Protection Program, 88 Fed. Reg. 15,907 (Mar.

Appendix A

15, 2023) (Final Denial). TSGLI covers servicemembers

who suffer a traumatic injury and is designed to fill a

gap between the time the injury occurs and when other

benefits are available. This program is overseen by the VA,

which also has the power to issue regulations enumerating

various injuries that are covered. As it stands, the

regulation covers physical damage to a servicemember

caused by, among other things, application of external

force or chemical, biological, or radiological weapons. The

regulation, however, does not cover an illness or disease,

with a few exceptions. The VA denied Mr. McKinney’s

petition to expand coverage due to several concerns,

including that such coverage would be inconsistent with

the types of injuries the TSGLI was designed to protect.

Mr. McKinney now petitions this court under 38 U.S.C.

§ 502 to set aside the VA’s denial. For the following

reasons, we deny the petition.

BACKGROUND

On May 11, 2005, the President signed into law

the legislation establishing TSGLI to provide financial

assistance to servicemembers who suffer severe traumatic

injuries. J.A. 83. The purpose of the program is to address

a “gap” in benefits identified by Congress: the period

immediately after a service member suffers a traumatic

injury when “the need for additional financial resources

becomes most acute.” J.A. 17-18. TSGLI provides that “[a]

member of the uniformed service who is insured under

Servicemembers’ Group Life Insurance shall automatically

Appendix A

be insured for traumatic injury in accordance with this

section” and that “[i]nsurance benefits under this section

shall be payable if the member, while so insured, sustains

a traumatic injury . . . that results in a qualifying loss.” 38

U.S.C. § 1980A(a)(1). The benefit, however, is payable only

if the loss “results directly from [the] traumatic injury . . .

and from no other cause.” Id. § 1980A(c)(1).

Under the statute, a qualifying loss includes loss

of limbs; total and permanent loss of sight, hearing, or

speech; severe burns; paralysis; traumatic brain injury;

and loss of ability to carry out the activities of daily living.

See id. § 1980A(b)(1)(A-H). Additionally, the VA may

prescribe additional qualifying losses by regulation. Id.

§ 1980A(b)(3). The VA defined these qualifying losses in

38 C.F.R. § 9.20.1

According to 38 C.F.R. § 9.20, service members

who experience (1) a traumatic event that results in

(2) a traumatic injury directly causing (3) a qualifying

“scheduled loss” are eligible to receive a TSGLI payment.

The VA defined “traumatic event” as the application

of external force, violence, chemical, biological, or

radiological weapons, or accidental ingestion of a

contaminated substance causing damage to a living body.

38 C.F.R. § 9.20(b)(1). Moreover, the VA defined “traumatic

injury” as “physical damage to a living body that is

caused by a traumatic event, as defined in [§ 9.20(b)].” Id.

§ 9.20(c)(1). However, “the term ‘traumatic injury’ does

1. In 2023, the VA modified 38 C.F.R. § 9.20 to expand

the definition of a “traumatic event.” However, we will only be

discussing the pre-2023 version of 38 C.F.R. § 9.20.

Appendix A

not include damage to a living body caused by,” inter alia,

“physical illness or disease, except if the physical illness

or disease is caused by a pyogenic infection, biological,

chemical, or radiological weapons, or accidental ingestion

of a contaminated substance.” Id. § 9.20(c)(2) (emphasis

added). The regulation thus draws a distinction, for the

most part, between physical damage caused by a traumatic

injury and damage caused by an illness or disease for

TSGLI benefits purposes.

To be eligible for payment of benefits, service

members must suffer a scheduled loss “within two years

of the traumatic injury.” Id. § 9.20(d)(4). Additionally, the

scheduled loss must “result[] directly from a traumatic

injury and no other cause.” Id. § 9.20(d)(2) (emphasis

added). This means that “if a pre-existing illness,

condition, or disease or a post-service injury substantially

contributed to the loss,” then the scheduled loss “does not

result directly from a traumatic injury.” Id. § 9.20(d)(2)(i).

The VA explained that illness and disease were

generally excluded from the definition of “traumatic

injury” because “the term ‘injury’ refers to the results of

an external trauma rather than a degenerative process.”

Traumatic Injury Protection Rider To Servicemembers’

Group Life Insurance, 70 Fed. Reg. 75940, 75941 (Dec. 22,

2005), J.A. 24. The VA, however, carved out five exceptions

for “physical illness or disease caused by a pyogenic

infection, chemical, biological, or radiological weapons, or

accidental ingestion of a contaminated substance because

including immediate traumatic harm due to those unique

hazards of military service is consistent with the purpose

Appendix A

of TSGLI.” Id. (emphasis added). Thus, the VA specified

that diseases resulting from those hazards are within the

definition of “traumatic injury.” See 38 C.F.R. § 9.20(c)(2)(ii).

Mr. McKinney is an Iraq war veteran who sustained

a traumatic brain injury (TBI) from the concussive force

of an improvised explosive device (IED) while deployed in

2005. Within two years of his TBI, Mr. McKinney suffered

a stroke and submitted a claim for TSGLI benefits based

on his stroke. Mr. McKinney’s application was denied

because the United States Army determined that Mr.

McKinney’s stroke was a physical illness or disease

rather than a qualifying traumatic injury under 38 U.S.C.

§ 1980A(a)(1).

In March 2015, Mr. McKinney filed a petition for

rulemaking, requesting the VA to, among other things,

broaden the definition of “traumatic injury” in 38 C.F.R.

§ 9.20. See Petition for Rulemaking by Army First

Sergeant Hugh Campbell McKinney, Retired, to Amend

38 C.F.R. § 9.20 Governing Traumatic Injury Protection

(U.S. Dep’t of Veterans Affs. Mar. 16, 2015) (Petition

for Rulemaking); J.A. 935. Mr. McKinney’s proposed

amendment would expand “traumatic injury” to also

cover damage to a living body resulting from any physical

illness or disease caused by explosive ordnance. J.A.

938-39. Under this proposed amendment, the explosive

ordnance caused Mr. McKinney’s TBI, which triggered

a disease process that eventually led to Mr. McKinney’s

Appendix A

stroke. 2 Accordingly, Mr. McKinney’s stroke would also

be covered by TSGLI.

Mr. McKinney asserted that there is no meaningful

difference between physical illness or disease that is

linked to explosive ordnance and the types of physical

illness or disease already covered by the VA’s regulation,

i.e., illnesses or diseases caused by pyogenic infection,

biological, chemical, or radiological weapons, and

accidental ingestion of a contaminated substance. In

Mr. McKinney’s view, explosive ordnances such as IEDs

“produce immediate harm” which then follows a “disease

process” similar to the five already-covered exceptions.

See Petition for Rulemaking at 1-2, J.A. 937-38.

The VA denied Mr. McKinney’s petition on August

6, 2015. J.A. 973-75. However, as part of a ten-year

anniversary review (Year-Ten Review) of the TSGLI

program, the VA committed to (1) “analyze the relationship”

between IED explosions and physical illness or disease

development and (2) “conduct an actuarial assessment of

any such regulatory amendment on the TSGLI program.”

Id. at 974. Mr. McKinney petitioned our court for review

on October 5, 2015, and the VA rescinded its denial of

Mr. McKinney’s petition on December 1, 2015. The VA

informed Mr. McKinney that it would not make a decision

on the regulatory changes requested in his petition until

2. Since both parties discuss only TBIs caused by explosive

ordnance, see, e.g., Pet’r’s Br. 15; Resp’t’s Br. 15, we will use “TBI”

interchangeably with “TBI caused by explosive ordnance” when

discussing the causal connection between explosive ordnance, TBI,

and the downstream physical illness or disease.

Appendix A

it completed its Year-Ten Review of the TSGLI program.

We subsequently granted Mr. McKinney’s unopposed

motion to dismiss his petition for review and noted that Mr.

McKinney planned to refile a petition for review once the

VA completed the Year-Ten Review and took final action

on his rulemaking petition.

Although the VA completed its Year-Ten Review

in 2018, it did not take any action on Mr. McKinney’s

rulemaking petition in the accompanying report. Instead,

the VA stated that it would “respond to [Mr. McKinney’s]

petition during the formal regulatory submission process

for the TSGLI Year-Ten Review recommendations.”

J.A. 1369. As part of this process, the VA consulted with

numerous medical experts, the majority of whom opined

that it is nearly impossible to prove a causal relationship

between exposure to an explosive ordnance and a specific,

subsequent illness or disease such as a stroke, for example.

See Servicemembers’ Group Life Insurance Traumatic

Injury Protection Program Amendments, 85 Fed. Reg.

50973, 50974 (Aug. 19, 2020) (Proposed Denial). On August

19, 2020, the VA issued a notice of proposed rulemaking

in which it proposed to deny Mr. McKinney’s petition. See

id. at 50983.

On March 15, 2023, the VA published a final rule that

denied Mr. McKinney’s rulemaking petition because,

in the agency’s view, expanding coverage to include

illness or disease that materializes long after exposure

to explosive ordnance (1) would be inconsistent with

TSGLI’s purpose of providing compensation for injuries

occurring immediately after a traumatic event; (2) would

Appendix A

be inconsistent with commercial accidental death and

dismemberment (AD&D) insurance policies after which

TSGLI is modeled; (3) would risk the financial health of

TSGLI; and (4) would be inconsistent with the statutory

requirement that covered losses “result[] directly from a

traumatic injury . . . and from no other cause.” 38 U.S.C.

§ 1980A(c)(1); see Final Denial at 15908-09. The VA

reasoned that there are too many different variables that

could cause the various diseases and illnesses associated

with explosive ordnance, and therefore the VA declined to

extend TSGLI coverage to those illnesses and diseases.

Final Denial at 15909.

Mr. McKinney now petitions us for review. We have

jurisdiction to review the VA’s denial of a petition for

rulemaking under 38 U.S.C. § 502.

STANDARD OF REVIEW

“Pursuant to [38 U.S.C.] § 502, we review actions

of the VA ‘in accordance with chapter 7 of title 5,’ i.e.,

under the relevant [Administrative Procedure Act] APA

standard of review, 5 U.S.C. § 706.” Preminger v. Sec’y

of Veterans Affs., 632 F.3d 1345, 1353 (Fed. Cir. 2011)

(citation omitted). That review must be based on the

“whole record” before the agency as of its decision. 5

U.S.C. § 706; Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

In reviewing an agency’s denial of a petition for

rulemaking under 5 U.S.C. § 553(e), we must determine

whether the agency’s decision was “arbitrary, capricious,

Appendix A

an abuse of discretion, or otherwise not in accordance

with law.” Id. at 414, 91 S.Ct. 814 (citation omitted). This

is a highly deferential standard, and our review of an

agency’s decision not to promulgate a requested rule is

“extremely limited.” Massachusetts v. EPA, 549 U.S. 497,

527-28, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (citation

omitted).

We must determine whether the VA’s denial of Mr.

McKinney’s rulemaking petition provides a reasoned

decision that adequately responds to the claims in the

petition. See, e.g., Serv. Women’s Action Network v.

Sec’y of Veterans Affs., 815 F.3d 1369, 1374-75 (Fed. Cir.

2016) (in reviewing an agency’s denial of rulemaking

petition, we ask “whether the agency employed reasoned

decisionmaking in rejecting the petition.” (citation

omitted)); Preminger, 632 F.3d at 1353 (“‘[A]n agency’s

refusal to institute rulemaking proceedings is at the

high end of the range’ of levels of deference given to

agency action under the ‘arbitrary and capricious’

standard.” (citation omitted)). When denying a petition

for rulemaking, the VA must provide “a brief statement of

the grounds for denial.” 5 U.S.C. § 555(e). The procedural

requirements are “minimal,” Butte Cnty., Cal. v. Hogen,

613 F.3d 190, 194 (D.C. Cir. 2010), and all that is required

to satisfy the arbitrary and capricious standard under the

APA is a “rational connection between the facts found and

the choice made.” Motor Vehicle Mfrs. Ass’n of the U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43,

103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citation omitted).

However, an unsupported denial or a “clear error in

judgment” warrants reversal of a denial of a petition.

10a

Appendix A

Flyers Rts. Educ. Fund, Inc. v. FAA, 864 F.3d 738, 743

(D.C. Cir. 2017) (citation omitted).

DISCUSSION

Mr. McKinney advances three primary arguments

in his petition for review. 3 First, he contends that the

VA’s several-year delay and alleged misrepresentation

of his personal health information to outside medical

experts constitute bad-faith adjudication of his petition.

See Pet’r’s Br. 35, 40. Second, Mr. McKinney argues that

because the rulemaking record is incomplete, it must be

supplemented before we can conduct a proper review of

the VA’s denial of his rulemaking petition. See id. at 4243. Finally, Mr. McKinney asserts that the VA’s denial of

his petition is arbitrary and capricious because the VA

failed to reasonably account for (1) the medical literature

indicating that explosive ordnance follows a “disease

process” and (2) the VA’s rationales in prior rulemaking

that compel the opposite conclusion from the one reached

by the VA here. See id. at 50-57. We disagree with Mr.

McKinney’s arguments, and address each in turn.

3. In a filing made on the eve of oral argument, Mr. McKinney

belatedly contends that the “extremely limited” and “highly

deferential” standard of review that applies to review of the VA’s

denial of a petition for rulemaking is no longer appropriate after

Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S.Ct.

2244, 219 L.Ed.2d 832 (2024), overruled Chevron deference. ECF

No. 59 at 2 (citing Loper Bright, 603 U.S. at 412, 144 S.Ct. 2244);

see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Mr. McKinney, however,

does not explain why Loper Bright overturns the existing standard

of review that applies to cases like this one. As this issue is not

adequately briefed, we decline to consider it.

11a

Appendix A

Bad Faith

Mr. McK inney identif ies several examples of

purported irregularities in the administrative record,

arguing that they are “harbingers” of the VA’s bad faith.

Id. at 35. In particular, he points to (1) the VA’s eight-year

delay and supposed secrecy surrounding his rulemaking

petition, and (2) the VA’s reliance on purportedly flawed

and obsolete medical evidence as indications of bad faith.

See id. at 35-42. For example, Mr. McKinney asserts

that the administrative record contains outdated medical

evidence predating a 2010 paper by Masel and Dewitt, a

paper that supports his rulemaking petition because it

purportedly proves the existence of a causal link between

an explosive ordnance, i.e., a traumatic event, and certain

physical illnesses and diseases. Id. at 37-38; see also

J.A. 1493-1504 (Masel and Dewitt paper). Mr. McKinney

additionally argues that the VA mischaracterized his

health profile when consulting with outside medical

experts, thereby biasing them to be “even more skeptical”

of his rulemaking petition. Id. at 40 (citing J.A. 1291-92).

Mr. McKinney contends that the medical evidence in

the record is accordingly tainted and cannot be used to

support the VA’s denial of his petition. See id. at 35-42.

Mr. McKinney’s arguments are not persuasive.

While the VA’s protracted delay in addressing

Mr. McKinney’s petition is regrettable, the purported

irregularities he listed are inadequate to support

setting aside its decision. Cf. Flyers Rts., 864 F.3d at

747 (remanding because “information critically relied

upon by the agency” was not available for review by the

12a

Appendix A

appellate court). As an initial matter, the authorities that

Mr. McKinney cites fail to substantiate the proposition

that the VA acted in bad faith simply because it took many

years to render a final denial of his rulemaking petition.

See Pet’r’s Br. 35-40. The cited cases merely characterize

the agency’s delays in those cases as “unreasonable” or

“egregious,” but they do not opine on whether those delays

are indicators of bad-faith conduct. See, e.g., In re Am.

Rivers & Idaho Rivers United, 372 F.3d 413, 419-20 & n.12

(D.C. Cir. 2004) (agency’s “six-year-plus delay is nothing

less than egregious”). Indeed, one case attributes an

unreasonable six-year delay to “bureaucratic inefficiency

rather than bad faith.” Pub. Citizen Health Rsch. Grp. v.

Brock, 823 F.2d 626, 628 (D.C. Cir. 1987).

Moreover, although Mr. McKinney is correct that some

of the VA’s medical sources predate the Masel and Dewitt

article, he does not explain why these citations evince bad

faith. See Pet’r’s Br. 37-38; J.A. 1493. Additionally, the VA

also relied on sources postdating the Masel and Dewitt

2010 article, and Mr. McKinney does not explain why these

sources fail to support the VA’s denial of his rulemaking

petition. See Pet’r’s Br. 37-38. Likewise, Mr. McKinney

does not offer any persuasive reason why the VA acted in

bad faith by relying on its 2016 consultations with outside

medical experts to deny his petition for rulemaking.

Mr. McKinney’s contention that the VA biased the

outside medical experts is unavailing. He selectively

references a portion of one interview summary that

allegedly shows the VA mischaracterized his health

history to elicit “‘even more skeptical’ reactions skewed

13a

Appendix A

to [the] VA’s liking and against the rulemaking petition.”

Pet’r’s Br. 40 (citing J.A. 1291-92). Even assuming the

VA misrepresented Mr. McKinney’s health history—an

assumption we do not adopt—such a misrepresentation

does not appear to have influenced the experts’ views as

to the medical theory underlying Mr. McKinney’s petition:

before “the facts of the petitioner’s case [were] provided,”

the experts already explained that “if a biomarker showed

that someone experienced a TBI and then later they

experience a stroke, clinicians cannot definitely say the

TBI caused the stroke as other factors . . . could have

caused the stroke.” J.A. 1291. Finally, to the extent Mr.

McKinney is correct that the experts were misled in this

particular interview, the record contains other interview

summaries that do not mention or characterize Mr.

McKinney’s health history; each of these summaries

likew ise shows experts who are skeptical of Mr.

McKinney’s position that it is not difficult to show

a causal relationship between exposure to explosive

ordnance and downstream physical illness or disease.

See, e.g., J.A. 1288 (“Summary of Phone Conference with

Col. Todd Rasmussen” stating it is “[v]ery difficult, next

to impossible, to factually/scientifically prove causation

between explosive ordnance and illness and disease in

most cases”); J.A. 1289-90 (“Summary of Meeting with

Dr. M. Sean Grady” stating that “today’s science would

most likely not allow a Servicemember to prove that one

of these illnesses/diseases was a direct result of the blast

injury”). Without more, we therefore cannot find that the

VA acted in bad faith in relying on the medical evidence

in the administrative record to deny Mr. McKinney’s

rulemaking petition.

14a

Appendix A

II. Incomplete Administrative Record

Mr. McKinney also contends that the administrative

record is incomplete and therefore unreviewable because

(1) there is no record in the Amended Index of Rulemaking4

during five of the eight years that the petition was pending

before the VA; (2) there is scant record of the VA meeting

its statutory obligation to consult with the Department

of Defense (DoD); (3) there is no actuarial assessment

or relevant statistical data on which VA based its denial

of the rulemaking petition; (4) there is no “Response

Sheet” that Mr. McKinney separately obtained through

a Freedom of Information Act request; and (5) there is

piecemeal compilation of the record, which overcomes

the presumption of regularity. 5 Pet’r’s Br. 42-44 (citation

omitted). We are not persuaded.

As the D.C. Circuit has explained, “the record

needed to support an agency’s decision not to engage in

rulemaking can be sparser than that needed to support

rulemaking.” Flyers Rts., 864 F.3d at 746. In the case of a

denial of rulemaking, “the ‘record’ for purposes of review

need only include the petition for rulemaking, comments

pro and con where deemed appropriate, and the agency’s

4. The index contains a list of the records the VA relied on in

its rulemaking process.

5. “The presumption of regularity provides that, in the

absence of clear evidence to the contrary, the court will presume

that public officers have properly discharged their official duties.”

Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) (citing

Butler v. Principi, 244 F.3d 1337, 1339 (Fed. Cir. 2001)).

15a

Appendix A

explanation of its decision to reject the petition.” WWHT,

Inc. v. FCC, 656 F.2d 807, 817-818 (D.C. Cir. 1981). On

review of the record, we are satisfied that it contains the

evidence the VA considered and is therefore sufficient to

permit our review.

First, the VA offered a reasonable explanation for

the time-gap of agency inactivity in the administrative

record—it reflects the fact that the VA prioritized its

Year-Ten Review of the TSGLI program at the expense

of processing rulemaking petitions. See Resp’t’s Br. 35-36.

Mr. McKinney does not contest the VA’s explanation or

explain why this gap frustrates our review. See generally

Pet’r’s Reply Br. Accordingly, we decline to infer that

this gap in the administrative record renders the record

unreviewable.

Second, Mr. McKinney does not explain why he

believes the record lacks proof that the VA has met its

obligation to consult with the DoD. See 38 U.S.C. § 1980A(j)

(“Regulations under this section shall be prescribed in

consultation with the Secretary of Defense.”). In fact, the

VA has produced its communications with the DoD, see

J.A. 963 (discussing Year-Ten review with the DoD); J.A.

1341-42 (same); J.A. 1387 (DoD verbally signing off on

the Year-Ten review), and Mr. McKinney does not dispute

the veracity of those documents. He merely asserts that

these communications are not enough under 38 U.S.C.

§ 1980A(j). Pet’r’s Reply Br. 2-3. Under the circumstances,

we reject this argument.

16a

Appendix A

Third, Mr. McKinney does not explain why the VA

is required by law to perform an actuarial assessment.

The VA relies on a 2009 congressional report to show that

adding illness or disease coverage to TSGLI would raise

costs and require additional funding. See Resp’t’s Br. 37

(citing J.A. 572-74). Mr. McKinney is correct that the

2009 report only examines the increased costs associated

with adding coverage for Post-Traumatic Stress Disorder

(PTSD), a mental disorder that is “separately considered

from physical illness or disease.” Pet’r’s Reply 4-5

(citation omitted). But the VA’s larger point was to show

that both the 2009 report and Mr. McKinney’s petition

would substantially expand TSGLI coverage, creating a

significant additional financial burden on the program.

That was a reasonable observation for the VA to make.

But even if the VA cannot rely on the 2009 report,

Mr. McKinney does not point to any law or regulation

mandating the VA to perform an actuarial assessment. We

accordingly decline to find that the record is unreviewable

without such assessment.

Fourth, although the “Response Sheet” from the

Air Force was not in the administrative record, Mr.

McKinney does not show why this would render the

record unreviewable. Contrary to Mr. McKinney’s

claim, the exclusion of the “Response Sheet” does not

harm Mr. McKinney, as the sheet shows the Air Force’s

opposition to Mr. McKinney’s petition. See J.A. 9047. In

any event, the VA’s denial of Mr. McKinney’s petition is

amply supported by the record, even without this omitted

document. See infra. Since the record supporting a denial

of rulemaking petition only requires “comments pro and

17a

Appendix A

con where deemed appropriate,” WWHT, 656 F.2d at 818,

Mr. McKinney does not persuasively show why omission

of the “Response Sheet” renders the record incomplete so

as to frustrate our review. See Oracle Am., Inc. v. United

States, 975 F.3d 1279, 1291 (Fed. Cir. 2020) (concluding

that a remand is unnecessary when “there is no reason

to believe that the [agency] decision would have been

different” (citations omitted)).

Finally, Mr. McKinney does not show how the

VA’s compilation of the record is so abnormal that the

presumption of regularity is overcome. Mr. McKinney’s

reliance on Defenders of Wildlife v. Nor ton, 239

F. Supp. 2d 9, 21 (D.D.C. 2002), vacated in part, 89

F. App’x 273 (D.C. Cir. 2004), is inapposite here. See

Pet’r’s Br. 44. In Defenders of Wildlife, the district court

deemed the missing records to be “significant” to the

agency’s denial to initiate rulemaking. 239 F. Supp. 2d at

21 n.10. Here, Mr. McKinney does not contend that any

missing documents were “significant,” or would otherwise

meaningfully support his petition. See generally Pet’r’s

Br. Additionally, unlike in Defenders of Wildlife, where

some of the missing documents were deliberately withheld

based on improper assertion of the deliberative process

privilege, see 239 F. Supp. 2d at 21 n.10, there is no such

active obstruction here. The VA instead worked with Mr.

McKinney to include records that he believed warranted

inclusion in the record. See J.A. 9049-67. Mr. McKinney

did not provide clear evidence to the contrary to disturb

the presumption that “what appears regular is regular.”

See Butler, 244 F.3d at 1340 (citations omitted).

18a

Appendix A

Upon our review of the administrative record, we

find that the purported gaps Mr. McKinney identified

are not fatal to our review of the VA’s denial of Mr.

McKinney’s rulemaking petition.6 The record not only

contains comments pro and con where appropriate, but

also includes the agency’s explanation of its decision to

reject Mr. McKinney’s petition. See WWHT, 656 F.2d at

818. Accordingly, the record in this case has the required

information for us to review whether the VA employed

reasoned decisionmaking in rejecting the petition. See

Preminger, 632 F.3d at 1353-54.

III. Arbitrary and Capricious Denial

Turning to the stated reasons for the denial of the

rulemaking petition itself, Mr. McKinney argues that the

VA’s decision is arbitrary and capricious because it ignores

the crux of his petition—that physical illnesses or diseases

caused by explosive ordnances follow a “disease process”

similar to the illnesses and diseases resulting from Section

9.20’s five enumerated exceptions currently covered

by TSGLI. Pet’r’s Br. 50. In particular, Mr. McKinney

asserts that the VA arbitrarily and capriciously denied

his rulemaking petition by (1) not addressing his “disease

process” argument; (2) taking a position contrary to its

6. Mr. McKinney asks us to order the VA to certify the

completeness of its Rule 17 index, see Pet’r’s Br. 49-50, and

the VA represents that it is prepared to certify said index, see

Resp’t’s Br. 42-43. We agree with Mr. McKinney that Fed. Cir.

R. 17(b)(2) requires that an agency certify the index it provides.

We accordingly order the VA to certify the index of rulemaking

record consistent with the requirements of Rule 17(b)(2).

19a

Appendix A

own regulation; and (3) relying on congressional intent that

is not clear. Upon our review of the record, we determine

that the VA did not act arbitrarily or capriciously in

denying Mr. McKinney’s rulemaking petition. Instead, we

find that the VA engaged in reasoned decisionmaking and

was sufficiently responsive to Mr. McKinney’s petition.

Mr. McKinney’s three arguments to the contrary are not

persuasive, and we address them in turn.

First, Mr. McKinney is incorrect that the VA did

not address his “disease process” argument in its denial

of his rulemaking petition. The VA disagreed with Mr.

McKinney’s attempt to draw a direct comparison between

illness or disease caused by Section 9.20’s enumerated

exceptions and illness or disease (such as stroke)

associated with explosive ordnance because the latter

relationship is far more attenuated. See Final Denial

at 15908. According to the VA, “courts have interpreted

the phrase ‘direct result of a traumatic injury and no

other cause’ that 38 C.F.R. § 9.20(d)(2) uses to mean that

a loss is not covered if a preexisting condition or disease

‘substantially contributed’ to the loss.” Id. (citation

omitted). In other words, TSGLI allows “[a] payment [to]

be made . . . only for a qualifying loss that results directly

from a traumatic injury . . . and from no other cause.”

38 U.S.C. § 1980A(c)(1); see also Proposed Denial at

50983 (“The plain language of 38 U.S.C. [§] 1980A(a)(1)

and (2), (b)(1), (c)(1) and (2) authorizes TSGLI benefits

for a qualifying loss resulting directly from a ‘traumatic

injury.’” (emphasis added)). Under Section 9.20, the

VA chose to allow for coverage for illness or disease

caused by the five specified exceptions (such as chemical

20a

Appendix A

weapons) because “the physical damage resulting in a

covered loss would generally occur immediately and

require prompt medical treatment” and because the

damage would immediately trigger the “disease process”

causing the downstream illness or disease. Traumatic

Injury Protection Rider To Servicemembers Group Life

Insurance, 70 Fed. Reg. 75940, 75941 (Dec. 22, 2005),

J.A. 23-24. The VA did not find the necessary proof of a

similar, categorical causal relationship in this record for

the theory underlying Mr. McKinney’s petition. Although

the VA acknowledged that “several conditions . . . have

a positive association with TBI,” the VA also found that

“these conditions do not immediately manifest.” Final

Denial at 15909. The VA further explained that “the types

of long-term illnesses and diseases associated with TBI

do not cause the immediate type of harm against which

TSGLI is designed to protect.” Id. Mr. McKinney disputes

this characterization, but the VA’s conclusion finds support

in the administrative record.

Third-party medical doctors and researchers, for

example, acknowledged that the long latent periods after

exposure to an explosive ordnance before a physical illness

or disease manifests make it “almost impossible in most

cases to prove that the explosive ordnance, and no other

factors, caused the illness/disease.” J.A. 1288; see also J.A.

1291 (two doctors noting that “many common symptoms of

TBI are also symptoms of other psychological conditions”).

Mr. McKinney does not explain why the VA acted

arbitrarily or capriciously in crediting medical sources

showing an inconclusive causal relationship between

explosive ordnance, TBI, and subsequent illness or

disease. In our view, the VA’s denial adequately responded

21a

Appendix A

to Mr. McKinney’s rulemaking petition, acknowledging

the mixed record for and against granting Mr. McKinney’s

petition. See generally Final Denial; Proposed Denial;

Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856.

Second, the VA did not arbitrarily and capriciously

take a position contrary to its regulation in denying Mr.

McKinney’s petition. The TSGLI program currently

provides that to receive benefits, one “must suffer a

scheduled loss . . . within two years of the traumatic

injury.” 38 C.F.R. § 9.20(d)(4). According to Mr. McKinney,

this provision proves one does not need a physical illness

or disease to immediately manifest, as the VA claimed in

its denial. Pet’r’s Br. 55 (citing Proposed Denial at 50983).

Mr. McKinney contends that it is therefore arbitrary and

capricious to deny his rulemaking petition just because

the TBI-induced illnesses or diseases “may have a latency

of months to years before manifesting.” Id.

Mr. McKinney misunderstands the VA’s denial of his

rulemaking petition. He points to the Chen study 7 the VA

cited in its denial of his rulemaking petition, which shows

that the average time between treatment for TBI and

the onset of stroke was 543 days. Pet’r’s Br. 56; see Final

Denial at 15909; Proposed Denial at 50983. Because 543

days is within the two-year eligibility period where one is

eligible for TSGLI benefits, Mr. McKinney believes that

the VA wrongfully denied his rulemaking petition. See

Pet’r’s Br. 55-56.

7. See Yi-Hua Chen et al., Patients with Traumatic Brain

Injury: Population-Based Study Suggests Increased Risk of

Stroke, 42 STROKE 2733 (2011) (Chen study).

22a

Appendix A

The VA established the two-year eligibility period

as a “response to concerns from the uniformed services

that one year was not enough time for a member to decide

whether to attempt to salvage a limb.” Final Denial at

15908. This eligibility period does not relate to the reason

why the VA denied Mr. McKinney’s petition, which instead

is based on the insufficiently proven causal relationship

between downstream illnesses and diseases and explosive

ordnance. See id. at 15909. The VA cited the Chen study,

see supra n.7, showing the long latent period between TBI

and stroke onset as further evidence that the direct causal

relationship Mr. McKinney theorized in his rulemaking

petition is less than clear. See Proposed Denial at 5098283. The VA therefore did not take a position contradictory

to its regulation.

Finally, Mr. McKinney is incorrect that there is no

legislative support for the VA’s denial of his rulemaking

petition. Mr. McKinney argues that the one-page

congressional record discussing the establishment of

TSGLI “provides no hint of the two year period that VA

introduced in its TSGLI regulation,” and the VA cannot

rely on the record to deny the rulemaking petition. Pet’r’s

Br. 56 (emphasis in original). But the reason why the VA

cited the TSGLI’s legislative history is because it shows

that “Congress intended to provide TSGLI compensation

for injuries, rather than diseases, that occur immediately

after a traumatic event and that require prompt medical

treatment.” Final Denial at 15909 (emphasis added);

see also J.A. 18 (statement of Senator Craig discussing

the purpose of the TSGLI program, which is to provide

“immediate payment” to wounded veterans “to sustain

23a

Appendix A

them before their medical discharge from the services,

when veterans benefits kick in”). The VA thus reasoned

that covering physical illnesses or diseases that may

manifest years after the traumatic event would be

inconsistent with the program’s purpose. Final Denial at

15909. The VA further explained that “Congress knows

how to include TSGLI coverage for diseases if it so desires,

and it did not do so.” Proposed Denial at 50983 (citing

Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296,

78 L.Ed.2d 17 (1983)).

CONCLUSION

We appreciate Mr. McKinney’s effort in urging the VA

to amend its regulations to expand TSGLI coverage to a

new category of conditions that can be caused by explosive

ordnance. However, under the circumstances, the VA did

not abuse its wide discretion in declining to amend its

regulations. At bottom, many of the arguments raised

involve agency policymaking choices that are beyond this

court’s purview, and there is nothing in the record that

warrants setting aside the VA’s decision in light of the

highly deferential and extremely limited review we have

over the VA’s denial of a proposed rulemaking petition.

We have considered Mr. McKinney’s remaining

arguments and find them unpersuasive. For the foregoing

reasons, we deny Mr. McKinney’s petition for review.

DENIED

Costs

No costs.

24a

APPENDIX B — Appendix

STATUTORY

PROVISIONS

AND REGULATIONS INVOLVED

38 U.S.C. § 1980A. Traumatic injury protection

(a)

(1) A member of the uniformed services who is

insured under Servicemembers’ Group Life Insurance

shall automatically be insured for traumatic injury

in accordance with this section. Insurance benefits

under this section shall be payable if the member,

while so insured, sustains a traumatic injury on or

after December 1, 2005, that results in a qualifying

loss specified pursuant to subsection (b)(1).

(2) If a member suffers more than one such

qualifying loss as a result of traumatic injury from

the same traumatic event, payment shall be made

under this section in accordance with the schedule

prescribed pursuant to subsection (d) for the single

loss providing the highest payment.

(b)

(1) A member who is insured against traumatic

injury under this section is insured against such

losses due to traumatic injury (in this section

referred to as “qualifying losses”) as are prescribed

by the Secretary by regulation. Qualifying losses so

prescribed shall include the following:

(A)

Total and permanent loss of sight.

25a

Appendix B

(B) Loss of a hand or foot by severance at or

above the wrist or ankle.

(C)

Total and permanent loss of speech.

(D) Total and permanent loss of hearing in both

ears.

(E) Loss of thumb and index finger of the

same hand by severance at or above the

metacarpophalangeal joints.

(F)

Quadriplegia, paraplegia, or hemiplegia.

(G) Burns greater than second degree, covering

30 percent of the body or 30 percent of the face.

(H) Coma or the inability to carry out the

activities of daily living resulting from traumatic

injury to the brain.

(2)

For purposes of this subsection:

(A) The ter m “quadr ipleg ia” means the

complete and irreversible paralysis of all four

limbs.

(B) The term “paraplegia” means the complete

and irreversible paralysis of both lower limbs.

and irreversible paralysis of the upper and lower

limbs on one side of the body.

26a

Appendix B

(D) The term “inability to carry out the

activities of daily living” means the inability

to independently perform two or more of the

following six functions:

(i)

Bathing.

(ii)

Continence.

(iii)

Dressing.

(iv)

Eating.

(v)

Toileting.

(vi)

Transferring.

(3) The Secretary may prescribe, by regulation,

conditions under which coverage otherwise provided

under this section is excluded.

(4) A member shall not be considered for the

purposes of this section to be a member insured

under Servicemembers’ Group Life Insurance if the

member is insured under Servicemembers’ Group

Life Insurance only as an insurable dependent of

another member pursuant to subparagraph (A)(ii)

or (C)(ii) of section 1967(a)(1) of this title [38 USCS

§ 1967(a)(1)].

(c)

(1) A payment may be made to a member under this

section only for a qualifying loss that results directly

27a

Appendix B

from a traumatic injury sustained while the member

is covered against loss under this section and from no

other cause.

(2)

(A) A payment may be made to a member under

this section for a qualifying loss resulting from a

traumatic injury only for a loss that is incurred

during the applicable period of time specified

pursuant to subparagraph (B).

(B) For each qualifying loss, the Secretary

shall prescribe, by regulation, a period of time

to be the period of time within which a loss of

that type must be incurred, determined from the

date on which the member sustains the traumatic

injury resulting in that loss, in order for that loss

to be covered under this section.

(d)

(1) Payments under this section for qualifying

losses shall be made in accordance with a schedule

prescribed by the Secretary, by regulation, specifying

the amount of payment to be made for each type of

qualifying loss, to be based on the severity of the

qualifying loss. The minimum payment that may

be prescribed for a qualifying loss is $25,000, and

the maximum payment that may be prescribed for a

qualifying loss is $100,000.

28a

Appendix B

(2) As the Secretary considers appropriate, the

schedule required by paragraph (1) may distinguish

in specifying payments for qualifying losses between

the severity of a qualifying loss of a dominant hand

and of a qualifying loss of a nondominant hand.

(e)

(1) During any period in which a member is insured

under this section and the member is on active duty,

there shall be deducted each month from the member’s

basic or other pay until separation or release from

active duty an amount determined by the Secretary

(which shall be the same for all such members) as the

share of the cost attributable to provided coverage

under this section, less any costs traceable to the extra

hazards of such duty in the uniformed services.

(2) During any month in which a member is assigned

to the Ready Reserve of a uniformed service under

conditions which meet the qualifications set forth in

section 1965(5)(B) of this title [38 USCS § 1965(5)(B)]

and is insured under a policy of insurance purchased

by the Secretary under section 1966 of this title

[38 USCS § 1966], there shall be contributed from

the appropriation made for active duty pay of the

uniformed service concerned an amount determined

by the Secretary (which shall be the same for all

such members) as the share of the cost attributable

to provided coverage under this section, less any

costs traceable to the extra hazards of such duty in

the uniformed services. Any amounts so contributed

29a

Appendix B

on behalf of any member shall be collected by the

Secretary concerned from such member (by deduction

from pay or otherwise) and shall be credited to the

appropriation from which such contribution was made

in advance on a monthly basis.

(3) The Secretary shall determine the premium

amounts to be charged for traumatic injury protection

coverage provided under this section.

(4) The premium amounts shall be determined on the

basis of sound actuarial principles and shall include an

amount necessary to cover the administrative costs

to the insurer or insurers providing such insurance.

(5) Each premium rate for the first policy year shall

be continued for subsequent policy years, except that

the rate may be adjusted for any such subsequent

policy year on the basis of the experience under the

policy, as determined by the Secretary in advance of

that policy year.

(6) The cost attributable to insuring members under

this section for any month or other period specified

by the Secretary, less the premiums paid by the

members, shall be paid by the Secretary concerned

to the Secretary. The Secretary shall allocate the

amount payable among the uniformed services using

such methods and data as the Secretary determines

to be reasonable and practicable. Payments under

this paragraph shall be made on a monthly basis or

at such other intervals as may be specified by the

30a

Appendix B

Secretary and shall be made within 10 days of the

date on which the Secretary provides notice to the

Secretary concerned of the amount required.

(7) For each period for which a payment by a

Secretary concerned is required under paragraph

(6), the Secretary concerned shall contribute such

amount from appropriations available for active duty

pay of the uniformed service concerned.

(8) The sums withheld from the basic or other

pay of members, or collected from them by the

Secretary concerned, under this subsection, and the

sums contributed from appropriations under this

subsection, together with the income derived from

any dividends or premium rate adjustments received

from insurers shall be deposited to the credit of the

revolving fund established in the Treasury of the

United States under section 1869(d)(1) of this title [38

USCS § 1869(d)(1)].

(f) When a claim for benefits is submitted under this

section, the Secretary of Defense or, in the case of a

member not under the jurisdiction of the Secretary of

Defense, the Secretary concerned, shall certify to the

Secretary whether the member with respect to whom the

claim is submitted—

(1) was at the time of the injury giving rise to the

claim insured under Servicemembers’ Group Life

Insurance for the purposes of this section; and

(2)

has sustained a qualifying loss.

31a

Appendix B

(g)

(1) Payment for a loss resulting from traumatic

injury may not be made under the insurance coverage

under this section if the member dies before the end of

a period prescribed by the Secretary, by regulation,

for such purpose that begins on the date on which the

member sustains the injury.

(2) If a member eligible for a payment under this

section dies before payment to the member can be

made, the payment shall be made to the beneficiary or

beneficiaries to whom the payment would be made if

the payment were life insurance under section 1967(a)

of this title [38 USCS § 1967(a)].

(h) Coverage for loss resulting from traumatic injury

provided under this section shall cease at midnight on

the date of the termination of the member’s duty status

in the uniformed services that established eligibility for

Servicemembers’ Group Life Insurance. The termination

of coverage under this section is effective in accordance

with the preceding sentence, notwithstanding any

continuation after the date specified in that sentence

of Servicemembers’ Group Life Insurance coverage

pursuant to section 1968(a) of this title [38 USCS § 1968(a)]

for a period specified in that section.

(i) Insurance coverage provided under this section is not

convertible to Veterans’ Group Life Insurance.

(j) Regulations under this section shall be prescribed

in consultation with the Secretary of Defense.

32a

Appendix B

(k)

Designation of fiduciary or trustee.

(1) The Secretary concerned, in consultation

with the Secretary, shall develop a process for the

designation of a fiduciary or trustee of a member of the

uniformed services who is insured against traumatic

injury under this section. The fiduciary or trustee so

designated would receive a payment for a qualifying

loss under this section if the member is medically

incapacitated (as determined pursuant to regulations

prescribed by the Secretary concerned in consultation

with the Secretary) or experiencing an extended loss

of consciousness.

(2) The process under paragraph (1) may require

each member of the uniformed services who is insured

under this section to—

(A) designate an individual as the member’s

fiduciary or trustee for purposes of subsection

(a); or

(B) elect that a court of proper jurisdiction

designate an individual as the member’s fiduciary

or trustee for purposes of subsection (a) in

the event that the member becomes medically

incapacitated or experiences an extended loss of

consciousness.

(l)

(1) If a claim for benefits under this section is denied,

the Secretary concerned shall provide to the member

33a

Appendix B

at the same time as the member is informed of such

denial a description of the following:

(A) Each reason for that denial, including a

description of all the information upon which the

denial is based and a description of the applicable

laws, regulations, or policies, with appropriate

citations, and an explanation of how such laws,

regulations, or policies affected the denial.

(B) Each finding that is favorable to the

member.

(2) Any finding favorable to the member as described

in paragraph (1)(B) shall be binding on all subsequent

reviews or appeals of the denial of the claim, unless

clear and convincing evidence is shown to the contrary

to rebut such favorable finding.

***

34a

Appendix B

38 C.F.R. § 9.20 Traumatic injury protection.

(a) What is traumatic injury protection? Traumatic

injury protection provides for the payment of a specified

benefit amount to a member insured by Servicemembers’

Group Life Insurance who sustains a traumatic injury

directly resulting in a scheduled loss.

(b)

What is a traumatic event?

(1) A traumatic event is damage to a living being

occurring on or after October 7, 2001, caused by:

(i)

Application of an external force;

(ii) Application of v iolence or chemical,

biological, or radiological weapons;

(iii) Accidental ingestion of a contaminated

substance;

(i v) E x p o s u r e t o l o w e n v i r o n m e n t a l

temperatures, excessive heat, or documented

non-penetrating blast waves; or

(v)

An insect bite or sting or animal bite.

(2) A traumatic event does not include a medical or

surgical procedure in and of itself.

35a

Appendix B

(c)

What is a traumatic injury?

(1) A traumatic injury is physical damage to a living

body that is caused by a traumatic event as defined in

paragraph (b) of this section.

(2) For purposes of this section, the term “traumatic

injury” does not include damage to a living body

caused by—

(i)

A mental disorder; or

(ii) A mental or physical illness or disease,

except if the physical illness or disease is caused

by a pyogenic infection, biological, chemical, or

radiological weapons, or accidental ingestion of

a contaminated substance.

(3) The term traumatic injury includes anaphylactic

shock directly caused by an insect bite or sting or

animal bite.

(4) For purposes of this section, all traumatic

injuries will be considered to have occurred at the

same time as the traumatic event.

(d) What are the eligibility requirements for payment

of traumatic injury protection benefits? You must meet all

of the following requirements in order to be eligible for

traumatic injury protection benefits.

(1) You must be a member of the uniformed

services who is insured by Servicemembers’ Group

36a

Appendix B

Life Insurance under section 1967(a)(1)(A)(i), (B) or

(C)(i) of title 38, United States Code, on the date

you sustained a traumatic injury, except if you are

a member who experienced a traumatic injury on

or after October 7, 2001, through and including

November 30, 2005. (For this purpose, you will be

considered a member of the uniformed services until

midnight on the date of termination of your duty

status in the uniformed services that established

your eligibility for Servicemembers’ Group Life

Insurance, notwithstanding an extension of your

Servicemembers’ Group Life Insurance coverage

under section 1968(a) of title 38, United States Code.)

(2) You must suffer a scheduled loss that results

directly from a traumatic injury and from no other

cause.

(i) A scheduled loss does not result directly

from a traumatic injury and from no other cause

if a pre-existing illness, condition, or disease or a

post-service injury substantially contributed to

the loss.

(ii) A scheduled loss results directly from a

traumatic injury and no other cause if the loss is

caused by a medical or surgical procedure used

to treat the traumatic injury.

(3) You must survive for a period not less than

seven full days from the date of the traumatic injury.

The seven day period begins on the date and Zulu

37a

Appendix B

(Greenwich Meridean) time of the traumatic injury

and ends 168 full hours later.

(4) You must suffer a scheduled loss under § 9.21(c)

within two years of the traumatic injury.

(i) If a loss w ith a required time period

milestone begins but is not completed within

two years of the traumatic injury, the loss would

nonetheless qualify for TSGLI if the requisite

time period of loss continues uninterrupted and

concludes after the end of the two-year period.

(ii) If a required time period for a loss is

satisfied before the end of the two-year period

and a member suffers another period of loss after

expiration of the two-year time limit, the member

is not entitled to TSGLI for this time period of

loss.

(5) You must suffer a traumatic injury before

midnight on the date of termination of your duty

status in the uniformed services that established

eligibility for Servicemembers’ Group Life Insurance.

For purposes of this section, the scheduled loss may

occur after the date of termination of your duty status

in the uniformed services that established eligibility

for Servicemembers’ Group Life Insurance.

(e) What is a scheduled loss and what amount will be

paid because of that loss?

38a

Appendix B

(1) The term “scheduled loss” means a condition

listed in the schedule in § 9.21(c) if directly caused

by a traumatic injury and from no other cause. A

scheduled loss is payable at the amount specified in

the schedule.

(2) The maximum amount payable under the

schedule for all losses resulting from traumatic events

occurring within a seven-day period is $ 100,000. We

will calculate the seven-day period beginning with

the day on which the first traumatic event occurs.

(3) A benefit will not be paid if a scheduled loss is

due to a traumatic injury —

(i)

Caused by —

(A) The member’s attempted suicide, while

sane or insane;

(B) An intentionally self-inflicted injury or

an attempt to inflict such injury;

medical procedures such as inoculations,

medical or surgical treatment for an illness

or disease, or any complications arising from

such procedures or treatment, unless the

diagnostic procedure or medical or surgical

treatment is necessary to treat a traumatic

injury;

39a

Appendix B

(D) Willful use of an illegal substance or

a controlled substance unless administered

or consumed on the advice of a medical

professional; or

(ii) Sustained while a member was committing an act

that clearly violated a penal law classifying such an act

as a felony.

(4) A benefit will not be paid for a scheduled loss

resulting from —

(i) A physical or mental illness or disease,

whether or not caused by a traumatic injury,

other than a pyogenic infection or physical illness

or disease caused by biological, chemical, or

radiological weapons or accidental ingestion of a

contaminated substance; or

(ii) A mental disorder whether or not caused

by a traumatic injury.

(5)

Amount Payable under the Schedule of Losses.

(i) The maximum amount payable for all

scheduled losses resulting from a single traumatic

event is limited to $ 100,000. For example, if a

traumatic event on April 1, 2006, results in the

immediate total and permanent loss of sight in

both eyes, and the loss of one foot on May 1, 2006,

as a direct result of the same traumatic event, the

member will be paid $ 100,000.

40a

Appendix B

(ii) If a member suffers more than one

scheduled loss from separate traumatic events

occurring more than seven full days apart, the

scheduled losses will be considered separately

and a benefit will be paid for each loss up to the

maximum amount according to the schedule. For

example, if a member suffers the loss of one foot

at or above the ankle on May 1, 2006, from one

event, the member will be paid $ 50,000. If the

same member suffers loss of sight in both eyes

from an event that occurred on November 1, 2006,

the member will be paid an additional $ 100,000.

(6) Definitions. For purposes of this section and

§ 9.21—

(i) The term biological weapon means biological

agents or microorganisms intended to kill,

seriously injure, or incapacitate humans through

their physiological effects.

(ii) The term chemical weapon means chemical

substances intended to kill, seriously injure, or

incapacitate humans through their physiological

effects.

(iii) The term contaminated substance means

food or water made unfit for consumption by

humans because of the presence of chemicals,

radioactive elements, bacteria, or organisms.

(iv) The term external force means a sudden

or violent impact from a source outside of the

41a

Appendix B

body that causes an unexpected impact and is

independent of routine body motions such as

twisting, lifting, bending, pushing, or pulling.

(v) The term ingestion means to take into the

gastrointestinal tract by means of the mouth.

(vi) The term medical professional means

a licensed practitioner of the healing arts

acting within the scope of his or her practice,

including, e.g., a licensed physician, optometrist,

nurse practitioner, registered nurse, physician

assistant, or audiologist.

(vii) The term medically incapacitated means

an individual who has been determined by a

medical professional to be physically or mentally

impaired by physical disability, mental illness,

mental deficiency, advanced age, chronic use of

drugs or alcohol, or other causes that prevent

sufficient understanding or capacity to manage

his or her own affairs competently.

(viii) The term pyogenic infection means a pusproducing infection.

(ix) The term radiological weapon means

radioactive materials or radiation-producing

devices intended to kill, seriously injure, or

incapacitate humans through their physiological

effects.

42a

Appendix B

(f) How does a member make a claim for traumatic

injury protection benefits?

(1)

(i) A member who believes he or she qualifies

for traumatic injury protection benefits must

complete and sign Part A of the TSGLI Benefits

Form and submit evidence substantiating the

member’s traumatic injury and resulting loss. A

medical professional must complete and sign Part

B of the Application for TSGLI Benefits Form.

(ii) If a medical professional certifies in Part B

of the Application for TSGLI Benefits Form that

a member is unable to sign Part A of the Form

because the member is medically incapacitated,

the Form must be signed by one of the following:

The member’s guardian; if none, the member’s

agent or attorney acting under a valid Power of

Attorney; if none, the member’s military trustee.

(iii) If a member suffered a scheduled loss as

a direct result of the traumatic injury, survived

seven full days from the date of the traumatic

event, and then died before the maximum benefit

for which the service member qualifies is paid,

the beneficiary or beneficiaries of the member’s

Servicemembers’ Group Life Insurance policy

should complete an Application for TSGLI

Benefits Form.

43a

Appendix B

(2) If a member seeks traumatic injury protection

benef its for a scheduled loss occurring after

submission of a completed Application for TSGLI

Benefits Form for a different scheduled loss, the

member must submit a completed Application for

TSGLI Benefits Form for the new scheduled loss and

for each scheduled loss that occurs thereafter and

for each increment of a scheduled loss that occurs

thereafter. For example, if a member seeks traumatic

injury protection benefits for a scheduled loss due to

coma from traumatic injury and/or the inability to

carry out activities of daily living due to traumatic

brain injury (§ 9.21(c)(17)), or the inability to carry out

activities of daily living due to loss directly resulting

from a traumatic injury other than an injury to the

brain (§ 9.21(c)(20)), a completed Application for

TSGLI Benefits Form must be submitted for each

increment of time for which TSGLI is payable. Also,

for example, if a member suffers a scheduled loss due

to a coma, a completed Application for TSGLI Benefits

Form should be filed after the 15th consecutive day

that the member is in the coma, for which $25,000 is

payable. If the member remains in a coma for another

15 days, another completed Application for TSGLI

Benefits Form should be submitted and another

$25,000 will be paid.

(g) How will the uniformed service decide a TSGLI

claim?

(1) Each uniformed service will certify its own

members for traumatic injury protection benefits

44a

Appendix B

based upon section 1032 of Public Law 109-13, section

501 of Public Law 109-233, and this section. The

uniformed service will certify whether a member was

insured under Servicemembers’ Group Life Insurance

at the time of the traumatic injury and whether the

member sustained a qualifying traumatic injury and

qualifying loss.

(2) The uniformed service office may request

additional evidence from the member if the record

does not contain sufficient evidence to decide the

member’s claim.

(3) The uniformed service office shall consider

all medical and lay evidence of record, including all

evidence provided by the member, and determine

its probative value. When there is an approximate

balance of positive and negative evidence regarding

any issue material to the determination of TSGLI

benefits, the uniformed service shall give the benefit

of the doubt to the member.

(4) Notice of a decision regarding a member’s

eligibility for traumatic injury protection benefits will

include an explanation of the procedure for obtaining

review of the decision, and all negative decisions shall

include a statement of the basis for the decision and

a summary of the evidence considered.

(h) How does a member or beneficiary appeal an adverse

eligibility determination?

45a

Appendix B

(1) Each uniformed service has a three-tiered

appeal process. The first tier of appeal is called a

reconsideration, followed by a second-level appeal

and then a third-level appeal. A member, beneficiary,

or other person eligible to submit a claim under

paragraph (f)(1)(ii) or (iii) may submit an appeal using

the appeal process of the uniformed service that

issued the original decision.

(i)

Reconsideration.

(A) Reconsideration of an elig ibility

determination, such as whether the loss

occurred within 730 days of the traumatic

injury, whether the member was insured

u nde r S e r v ic e memb e r s’ Gr oup L i fe

Insurance when the traumatic injury was

sustained, or whether the injury was selfinflicted or whether a loss of hearing was

total and permanent, is initiated by filing,

with the office of the uniformed service

identified in the eligibility decision within

one year of the date of a denial of eligibility,

a written notice of appeal that identifies the

issues for which reconsideration is sought.

(B) The uniformed service TSGLI office

will review the claim, including evidence

submitted with the notice of appeal by or on

behalf of the member that was not previously

part of the record before the uniformed

service, and issue a decision on the claim.

46a

Appendix B

(ii)

Second-level appeal.

(A) A s e c o n d - l e ve l a p p e a l o f t h e

reconsideration decision is initiated by

filing, with the second-level appeal office of

the uniformed service within one year of

the date of the reconsideration decision, a

written notice of appeal that identifies the

issues being appealed.

(B) The uniformed service second-level

appeal office will review the claim, including

evidence submitted with the notice of appeal

by or on behalf of the member that was not

previously part of the record before the

uniformed service, and issue a decision on

the claim.

(iii)

Third-level appeal.

(A) A third-level review of the second-level

uniformed service appeal office is initiated

by filing, with the third-level appeal office

of the uniformed service within one year of

the date of the decision by the second-level

appeal office of the uniformed service, a

written notice of appeal that identifies the

issues being appealed.

(B) The uniformed service third-level

appeal office will review the claim, including

evidence submitted with the notice of appeal

by or on behalf of the member that was not

47a

Appendix B

previously part of the record before the

uniformed service, and issue a decision on

the claim.

(2) If a timely notice of appeal seeking reconsideration

of the initial decision by the uniformed service or

seeking review of the decision by the second-level

uniformed service appeal office is not filed, the initial

decision by the uniformed service or the decision

by the second-level uniformed service appeal office,

respectively, shall become final, and the claim will

not thereafter be readjudicated or allowed except as

provided in paragraph (h)(3).

(3)

New and material evidence.

(i) If a member, beneficiary, or other person

eligible to submit a claim under paragraph (f)

(1)(ii) or (iii) submits new and material evidence

with respect to a claim that has been finally

disallowed as provided in paragraph (h)(2),

the uniformed service office will consider the

evidence, determine its probative value, and

readjudicate the claim. New and material

evidence is evidence that was not previously part

of the record before the uniformed service, is not

cumulative or redundant of evidence of record at

the time of the prior decision and is likely to have

a substantial effect on the outcome.

(ii) A decision finding that new and material

evidence was not submitted may be appealed in

accordance with paragraph (h)(1).

48a

Appendix B

(4) Nothing in this section precludes a member

from pursuing legal remedies under 38 U.S.C. 1975

and 38 CFR 9.13. However, if a member files suit in

U.S. district court after an adverse initial decision on

a TSGLI claim by a uniformed service, the member

may not file an appeal pursuant to paragraph (h)(1)

if the lawsuit is pending before a U.S. district court,

a U.S. court of appeals, or the U.S. Supreme Court

or the time for appeal or filing a petition for a writ

of certiorari has not expired. If a member files suit

in U.S. district court after filing an appeal pursuant

to paragraph (h)(1), the appeal will be stayed if the

lawsuit is pending before a U.S. district court, a

U.S. court of appeals, or the U.S. Supreme Court or

the time for appeal or filing a petition for a writ of

certiorari has not expired.

(i) Who will be paid the traumatic injury

protection benefit? The injured member who

suffered a scheduled loss will be paid the

traumatic injury protection benefit in accordance

with 38 U.S.C. 1980A except under the following

circumstances:

(A) If a member has been determined

by a medical professional, in Part B of the

Application for TSGLI Benefits Form, to

be medically incapacitated, the member’s

guardian or, or if there is no guardian, the

member’s agent or attorney acting under

a valid Power of Attorney will be paid the

benefit on behalf of the member.

49a

Appendix B

(B) If no guardian, agent, or attorney

is authorized to act as the member’s legal

representative, a military trustee who has

been appointed under the authority of 37

U.S.C. 602 will be paid the benefit on behalf

of the member. The military trustee will

report the receipt of the traumatic injury

benefit payment and any disbursements from

that payment to the Department of Defense.

made, the beneficiary or beneficiaries who

will be paid the benefit will be determined

in accordance with 38 U.S.C. 1970(a).

( j) The Traumatic Ser vicemembers’ Group Life

Insurance program will be administered in accordance

with this rule, except to the extent that any regulatory

provision is inconsistent with subsequently enacted

applicable law.

50a

Appendix B

88 FR 15907

Vol. 88, No. 050, Wednesday, March 15, 2023

Title: Servicemembers’ Group Life Insurance Traumatic

Injury Protection Program

Action: Final rule.

Agency: Department of Veterans Affairs.

Identifier: RIN 2900-AQ53

SUMMARY: This final rule adopts, with changes, a

proposed rule amending the Department of Veterans

Affairs (VA) Servicemembers’ Group Life Insurance

T raumatic Inju r y P rot ection ( TSGLI) prog ra m

regulations. This final rule allows nurse practitioners to

sign a hospital or facility-approved pass for a member to

leave a hospital or treating facility as part of the member’s

treatment plan. This final rule also responds to comments

received during a reopened 60-day comment period on

the response to a petition for rulemaking and withdraws

a proposed revision to the TSGLI schedule of losses for

traumatic injuries from burns.

SUPPLEMENTARY INFORMATION:

On August 19, 2020, VA published a proposed rule in the

Federal Register , 85 FR 50,973, to amend its regulations

governing the TSGLI program, and addressed and denied

a petition for rulemaking submitted to VA on March 16,

51a

Appendix B

2015, requesting that VA amend the TSGLI regulations to

cover traumatic injuries due to illness and disease caused

by explosive ordnance. VA provided a 60-day comment

period, which ended on October 19, 2020. We received

comments from 10 individuals during this comment

period. Overall, the comments supported our proposed

rulemaking; however, several of the commenters made

additional recommendations, which we address below.

On March 23, 2021, we published a supplemental notice

of proposed rulemaking (SNPRM), 86 FR 15,448, that

provided a new opportunity for the public to submit

comments pertaining to our proposal to deny the petition

for rulemaking requesting that VA amend the TSGLI

regulations to cover traumatic injuries due to illness

and disease caused by explosive ordnance. We received

three comments during the SNPRM comment period

and address these comments in this final rulemaking.

In addition, we explain VA is withdrawing the proposed

amendment to the TSGLI burn standard that was

published in the Federal Register in August 2020.

***

Petition for VA To Engage in TSGLI Rulemaking

One comment was submitted by counsel representing a

member who is appealing the uniformed services’ denial

of his TSGLI claim. In our proposed rulemaking we

evaluated the commenter’s petition for VA to engage in a

TSGLI rulemaking that would add illness and disease to

the TSGLI schedule if the illness or disease was caused

52a

Appendix B

by explosive ordnance. The commenter stated that VA

did not explain why it did not grant the member’s petition

and why it adopted a two-year time period for a loss from

a traumatic injury to occur. The comments also stated

that losses from explosive ordnance such as stroke do

occur within two years of members’ exposure to explosive

ordnance and VA’s denial of the petition is arbitrary and

capricious and violates the Administrative Procedure Act.

In the proposed rulemaking, we explained that we were

proposing to deny the petition for rulemaking because

covering losses from illness or disease resulting from

explosive ordnance would be inconsistent with the plain

language of the authorizing statute and the purpose of

TSGLI to cover injuries occurring immediately after a

traumatic event as losses due to illness or disease do not

result from immediate traumatic harm unless the harm is

caused by nuclear, biological, or chemical weapons. 85 FR

at 50,983. We included immediate traumatic harm caused

by nuclear, biological, and chemical weapons as exceptions

to the TSGLI illness and disease exclusion because these

weapons are unique to the hazards of military service. Id.

As we further explained in the proposed rulemaking, the

legislative history of the TSGLI authorizing statute shows

that Congress intended to provide TSGLI compensation

for injuries, rather than diseases, that occur immediately

after a traumatic event and that require prompt medical

treatment. Id. Thus, we proposed to deny the commenter’s

petition to provide TSGLI coverage for physical illness

or disease caused by TBI because losses from illness or

disease caused by TBI may not immediately manifest but

may manifest many years after the member’s TBI. Id.

Further, although the commenter noted that one of the

53a

Appendix B

medical studies cited by VA in the proposed rule found an

average time of 543 days between a TBI patient’s use of

health care services and the onset of stroke, we identified

other scientific reports suggesting a longer latent period

before clinical presentation of adverse health effects such

as meningioma and an increase in risk of brain tumors. Id.

Additionally, we cited to a report that showed a delayed

onset of symptoms of Parkinson Disease following TBI. Id.

The commenter also stated that VA has not provided

sufficient justification for adopting a two-year period for a

loss to occur following a traumatic injury and that we have

offered no actuarial or statistical data to support the denial

of the petition for rulemaking. As stated previously, VA is

obligated to manage TSGLI according to sound actuarial

principles, and we have modeled TSGLI on commercial

AD&D policies. The TSGLI two-year period to suffer a

loss provides more extensive coverage than the coverage

offered by most commercial AD&D insurers; further

extending the loss period risks the financial health of

TSGLI and would make it difficult for TSGLI adjudicators

to determine if a nexus exists between a traumatic injury

and a qualifying loss. Accordingly, we make no change

based on this commenter’s comments and deny the petition

for rulemaking.

8. Comments Received During SNPRM Comment

Period

We received three additional comments in response

to our supplemental notice of proposed rulemaking

providing a new opportunity for the public to submit

54a

Appendix B

comments pertaining to our proposal to deny the petition

for rulemaking described in the previous section. One

commenter indicated that the types of illnesses and

diseases that result from exposure to low-level blasts often

are not diagnosed until as long as a decade later and should

be covered under TSGLI. VA considers low-level blasts a

traumatic event and calculates the two-year period from

the last documented blast. Any “immediate” losses, such

as hospitalization or the inability to perform ADL from

a TBI resulting from a low-level blast, are losses covered

under TSGLI. Covering a disease or illness that occurs

many years following a traumatic event would be contrary

to Congressional intent that TSGLI provide benefits for

losses from traumatic injuries that are suffered soon after

a traumatic event. See 85 FR at 50,983. Therefore, we do

not make a change based on this comment.

VA received one comment from counsel representing

the member appealing the uniformed services’ denial

of his TSGLI claim and who submitted the petition for

rulemaking stating that our proposal to deny the petition

to add illness and disease to the TSGLI schedule if the

illness and disease was caused by explosive ordnance

was arbitrary and capricious. The comment submitted

was similar to a comment submitted during the prior

notice and comment period. As stated previously, VA does

not make any changes based on this comment because

covering losses from illness or disease resulting from

explosive ordnance would be inconsistent with commercial

AD&D coverage after which Congress modeled TSGLI

and the purpose of TSGLI to cover injuries occurring

immediately after a traumatic event.

55a

Appendix B

We received another comment from a licensed physician

and the author of a report to which we cited in our August

2020 Federal Register submission that proposed to deny

the petitioner’s request. The commenter stated that TBI

from explosive ordnance follows a disease process and

that losses from illness and disease caused by TBI that

is caused by explosive ordnance should be covered under

TSGLI. As we explained in the proposed rulemaking and

in previous sections of this final rulemaking, the types

of long-term illnesses and diseases associated with TBI

do not cause the immediate type of harm against which

TSGLI is designed to protect. Our research shows that,

while several conditions, such as Alzheimer’s Disease

and dementia, have a positive association with TBI, these

conditions do not immediately manifest, [*15910] and

losses from these conditions usually do not occur until

more than two years after TBI. Institute of Medicine of

the National Academies, Gulf War and Health—Vol. 9:

Long-Term Effects of Blast Exposures (2014), available

at https://doi.org/10.17226/18253. We also identified a

positive association between TBI and Parkinson’s Disease,

however the symptoms from Parkinson’s Disease that

would cause a member to suffer a loss do not appear within

the two-year loss period, but usually appear as many as

twenty years following a TBI. Id. Further, members who

suffer immediate harm due to TBI caused by explosive

ordnance and are hospitalized or suffer the loss of ADL

are eligible for TSGLI payment if the loss occurs during

the two-year period for TSGLI losses. Therefore, we do

not make any changes based on this comment and deny

the petition for rulemaking.

***

56a

Appendix B

86 FR 15448

Vol. 86, No. 054, Tuesday, March 23, 2021

Title: Servicemembers’ Group Life Insurance Traumatic

Injury Protection Program Amendments

Action: Supplemental notice of proposed rulemaking.

Agency: Department of Veterans Affairs.

Identifier: RIN 2900-AQ53

SUMMARY: On August 19, 2020, the Department of

Veterans Affairs (VA) published a notice of proposed

rulemaking to amend its regulations that govern the

Servicemembers’ Group Life Insurance Traumatic Injury

Protection (TSGLI) program. This supplemental notice

of proposed rulemaking (SNPRM) clarifies that VA’s

proposed denial of a petition for rulemaking, as set forth

in that proposed rulemaking, is a proper subject for the

submission of comments and provides a new opportunity

for submission of such comments.

SUPPLEMENTARY INFORMATION: On August 19,

2020, VA published a notice of proposed rulemaking to

amend VA regulations governing the TSGLI program.

85 FR 50973. That rulemaking also proposed to deny a

petition for rulemaking requesting that VA:

1. Amend the definition of “traumatic event” in current

§ 9.20(b)(1) to include “application of . . . explosive ordnance

. . . causing damage to a living being.”

57a

Appendix B

2. Amend the definition of “traumatic injury” in current

§ 9.20(c)(2)(ii) to include a “physical illness or disease . . .

caused by . . . explosive ordnance.”

3. Amend the list of exclusions in current § 9.20(e)(4)(i) to

provide that a scheduled loss resulting from a “physical

illness or disease caused by explosive ordnance” will not

be excluded from TSGLI coverage.

4. Add the following definition of “explosive ordnance” to

current § 9.20(e)(6): “all munitions containing explosives,

. . . includ[ing], but . . . not limited to, improvised explosive

devices (IEDs).”

This SNPRM does not propose any substantive changes

to the previously published proposed rule. Rather,

through this SNPRM, we simply seek to (1) clarify that

VA proposes to deny the petition for rulemaking for

the reasons set forth in the preamble to the proposed

rulemaking, see 85 FR 50982-83, and (2) provide additional

opportunity for public comment on that subject specifically

because the August 2020 proposed rule may not have been

entirely clear that the issues raised in the petition and the

proposed denial thereof were subject to public comment.

VA hereby invites comments on the petition and the

proposed denial thereof. Before making a final decision

on the petition and the issuance of a final rulemaking, VA

will consider all comments received during the comment

period ending on October 19, 2020, in response to the

August 2020 proposed rule and all comments received

in response to this SNPRM by the closing date. If you

58a

Appendix B

submitted a comment regarding the petition in response to

the August 2020 proposed rule, you do not need to submit

the same comment again. This SNPRM does not reopen

the other proposals that were contained in the August

2020 proposed rulemaking or request further comments

on those proposals.

***

59a

Appendix B

85 FR 50973

Vol. 85, No. 161, Wednesday, August 19, 2020

Title: Servicemembers’ Group Life Insurance Traumatic

Injury Protection Program Amendments

Action: Proposed rule.

Agency: Department of Veterans Affairs.

Identifier: RIN 2900-AQ53

SUMMARY: The Department of Veterans Affairs

(VA) proposes to amend its regulations that govern

the Servicemembers’ Group Life Insurance (SGLI)

Traumatic Injury Protection (TSGLI) program, to

clarify the eligibility criteria, add definitions, and explain

the application and appeals processes, including the

submission of supporting evidence and the interaction

between the administrative appeals process and a

Federal lawsuit on a claim. VA proposes to recodify the

definitions in the current regulation that are pertinent

to the schedule of losses, revise existing definitions, and

add new definitions. VA would add a new regulation to

codify the text at the beginning of the schedule of losses,

recodify that schedule, and amend the criteria for certain

losses in the schedule. This rulemaking also responds to

a petition for rulemaking.

SUPPLEMENTARY INFORMATION: TSGLI provides

up to $100,000 of traumatic injury coverage to all

60a

Appendix B

servicemembers enrolled in SGLI. TSGLI provides a

financial benefit to seriously injured SGLI insureds to

assist them with expenses incurred during long periods

of recovery and rehabilitation. Since the program began

issuing benefits on December 22, 2005, through June 30,

2019, over $1 billion has been paid to almost 18,500 injured

servicemembers. TSGLI is modeled after commercial

Accidental Death and Dismemberment [*50974] (AD&D)

insurance coverage, specifically, the “dismemberment”

portion of the coverage, although it deviates in some

respects from the commercial AD&D model to account for

the unique needs of military personnel. 70 FR 75,940 (Dec.

22, 2005). In developing these proposed amendments,

VA considered industry practice and AD&D case law,

the goals and purpose of the TSGLI authorizing statute,

as well as analysis from a TSGLI Year-Ten Review and

consultation with medical experts.

Year-Ten Review

After ten years of program implementation, VA initiated

a comprehensive review of TSGLI regulations to assess

proposals for improvements, clarify eligibility standards,

identify opportunities for administrative and operational

enhancements, and ensure consistency with congressional

intent. VA reviewed approximately 1,850 TSGLI claims

that had been adjudicated by the uniformed services and

consulted with medical experts at 18 military, VA, and

private medical facilities, including George Washington

University Medical Center, Washington, DC; Navy

Medical Center, San Diego, California; San Antonio

Military Medical Center, San Antonio, Texas; University

61a

Appendix B

of Pennsylvania Hospital, Philadelphia, Pennsylvania;

VA Amputation System of Care, VA Medical Center,

Richmond, Virginia; VA Medical Center, Bay Pines,

Florida; VA Polytrauma Center, Tampa, Florida; Walter

Reed National Military Medical Center, Bethesda,

Maryland; and Moss Rehabilitation Research Institute,

Elkins Park, Pennsylvania (“experts”).

Areas addressed by the review include loss standards,

application and appeals processes, forms, program

exclusions, and definitions. A copy of the review can be

found at https://www.benefits.va.gov/INSURANCE/docs/

TSGLI_YTR.pdf. This comprehensive program review

served as the basis for many aspects of this proposed

rulemaking.

While VA was conducting the Year-Ten Review, a petition

for rulemaking was submitted to the Secretary of Veterans

Affairs on March 16, 2015. The petition is addressed in

this notice of proposed rulemaking, which serves as the

Secretary’s response to the petition.

***

III.

Petition for Rulemaking

On March 16, 2015, a petition for rulemaking was

submitted to the Secretary of Veterans Affairs requesting

that VA:

1. Amend the definition of “traumatic event” in current

§ 9.20(b)(1) to include “application of . . . explosive ordnance

. . . causing damage to a living being.”

62a

Appendix B

2. Amend the definition of “traumatic injury” in current

§ 9.20(c)(2)(ii) to include a “physical illness or disease . . .

caused by . . . explosive ordnance.”

3. Amend the list of exclusions in current § 9.20(e)(4)(i) to

provide that a scheduled loss resulting from a “physical

illness or disease caused by explosive ordnance” will not

be excluded from TSGLI coverage.

4. Add the following definition of “explosive ordnance” to

current § 9.20(e)(6): “all munitions containing explosives,

. . . includ[ing], but . . . not limited to, improvised explosive

devices (IEDs).”

In considering this proposal, VA conducted a review

of medical literature on the numbers, types, and onset

period of illnesses and diseases resulting from explosive

ordnance exposure. VA also interviewed a range of

medical experts in the fields of traumatic brain injury,

concussive force trauma, combat trauma, and retained

toxic fragment impacts as well as epidemiologists and

other medical researchers studying the impacts of blast

injuries on today’s military. Based upon this review of

the issue, VA denies the petition for rulemaking for the

following reasons.

Definition of “Traumatic Event”

Current § 9.20(b) defines a “traumatic event” as “the

application of external force, violence, chemical, biological,

or radiological weapons, or accidental ingestion of a

contaminated substance causing damage to a living

63a

Appendix B

being.” We agree with petitioner that IEDs are a unique

hazard of military service. Therefore, since the start of

the TSGLI program on December 1, 2005, explosion of

an ordnance including an improvised explosive device

causing damage to a living being has been considered as

a traumatic event, i.e., damage caused by application of

external force due to fragments of debris propelled by

the explosion or due to a member being thrown to the

ground or into an object. Gulf War & Health, Volume 7:

Long-Term Consequences of Traumatic Brain Injury, at

7 (2009). Between December 22, 2005, and July 31, 2019,

the TSGLI program provided more than $357 million

in benefits to 6,207 servicemembers who suffered a

traumatic injury due to an improvised explosive device,

mortar attack, shrapnel, or rocket propelled grenade that

resulted in a scheduled loss. VA, therefore, sees no need

to amend § 9.20(b)(1) to include an explosive ordnance

or to add a definition of improvised explosive device to

§ 9.20(e)(6).

Illness or Disease Caused by Explosive Ordnance

The petition seeks to amend current 38 CFR 9.20(c)(2)

(ii) and (e)(4)(i) to ensure TSGLI coverage of physical

illness or disease caused by TBI, which has been called a

signature injury of the conflict in Iraq. Petition at 12-15.

Petitioner contends that the harm caused by explosion

of an ordnance is “just like” application of chemical,

biological, and radiological weapons and accidental

ingestion of a contaminated substance because they

“produce immediate bodily harm but their biological

effects may not immediately manifest” and “may have a

latency of months to years before manifesting.” Petition

64a

Appendix B

at 23. Petitioner’s request is inconsistent with the

nature [*50983] of TSGLI, which is modeled on AD&D

insurance, and congressional intent.

The plain language of 38 U.S.C. 1980A(a)(1) and (2), (b)(1),

(c)(1) and (2) authorizes TSGLI benefits for a qualifying

loss resulting directly from a “traumatic injury.” The

word “disease” does not appear in the statute. Consistent

with the maxim “expressio unius est exclusio alterius,”

Congress knows how to include TSGLI coverage for

diseases if it so desires, and it did not do so. See Russello v.

United States, 464 U.S. 16, 23 (1983) (“[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.”).

VA implemented 38 U.S.C. 1980A in 2005 by defining the

term “traumatic injury” in current 38 CFR 9.20(c)(1) to

mean “physical damage . . . caused by” the “application

of external force, violence, chemical, biological, or

radiological weapons, or accidental ingestion of a

contaminated substance.” In the 2005 interim final-rule

notice, VA stated that “[w]e believe that inherent in the

term ‘traumatic injury’ is the notion that the injury occurs

immediately.” 70 FR 75,941; see 10 Couch on Insurance

§ 139:28, at 139-64 (“accidental bodily injury has been

defined as a localized abnormal condition of the living body

directly and contemporaneously caused by accident”).

VA expressly excluded losses caused by a “disease” from

TSGLI coverage in current 38 CFR 9.20(c)(2)(ii) and (e)(4)

(i), which states that “traumatic injury” does not include

damage to a living body caused by a disease, whether

65a

Appendix B

physical or mental in nature. 70 FR 75,941. VA stated

that the “term ‘injury’ refers to the result of an external

trauma rather than a degenerative process, while the

“term ‘disease’ . . . refers to some type of internal infection

or degenerative process.” Id. (citing VAOPGCPREC 8690).

VA’s conclusion that TSGLI only extends to traumatic

injuries which cause immediate harm and require

immediate treatment as compared to diseases is

supported by the legislative history when 38 U.S.C. 1980A

was enacted in 2005. TSGLI coverage was intended for

injuries occurring immediately after a traumatic event,

e.g., wounds suffered on the battlefield, and to provide

financial support when the wounded servicemembers

return home and are undergoing rehabilitation prior to

medical discharge from service. See 151 Cong. Rec. 745455 (2005).

VA, however, defined “injury” to include physical illness

or disease “caused by a pyogenic infection, chemical,

biological or radiological weapons, or accidental ingestion

of a contaminated substance” because “including

immediate traumatic harm due to those unique hazards of

military service is consistent with the purpose of TSGLI.”

70 FR 75,941 (emphasis added); 38 CFR 9.20(c)(2)(ii). VA

stated that the “physical damage resulting in a covered

loss would generally occur immediately and require

prompt medical treatment.” 70 FR 75,941.

Scientific reports indicate that the consequences of a TBI

may not become manifest for a long period of time. For

66a

Appendix B

example, the Institute of Medicine report, Long-Term

Consequences of Traumatic Brain Injury, at 7, found

a “weak but significant association between TBI and

meningioma and of an increase in risk of brain tumors

10 years or more after TBI; that suggests a long latent

period before clinical presentation.” See also id. at 355.

A study showing a link between TBI and increased risk

of stroke in the first five years after injury found that, in

the cohort studied, the average time between a patient’s

use of health care services and onset of stroke was 543

days for patients with TBI. Yi-Hua Chen, et al., Patients

with Traumatic Brain Injury: Population-Based Study

Suggests Increased Risk of Stroke, 42 Stroke 2733-39

(2011). Studies of occurrence of Parkinson’s disease

following TBI also show a delayed onset. Lindsay Wilson,

et al., Traumatic Brain Injury 4: The Chronic and

Evolving Neurological Consequences of Traumatic Brain

Injury, 16 The Lancet 813-825 (2017).

Because Congress intended to provide TSGLI compensation

for “injuries” rather than diseases occurring immediately

after a traumatic event and that require prompt medical

treatment, the Secretary denies the petition to provide

TSGLI coverage for physical illness or disease caused by

TBI that “may not immediately manifest” and “may have

a latency of months to years before manifesting.”

***

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.