[00:00:00] Speaker 05:
Case number 20-5189, Hugh Campbell McKinney, a balance versus Johnny Wheatley in his official capacity as acting secretary of the United States Army.

[00:00:11] Speaker 05:
Mr. Watkins for the appellant, Mr. Mehard for the appellate.

[00:00:15] Speaker 00:
Good morning, counsel.

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Mr. Watkins, please proceed when you're ready.

[00:00:20] Speaker 02:
Good morning.

[00:00:21] Speaker 02:
May it please the court.

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Hugh Campbell McKinney served in Iraq and unfortunately was present in a Humvee close to an improvised explosive device that exploded on a bridge in the city of Turkuk.

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When he suffered his traumatic brain injury at that moment,

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The army had no systematic approach for addressing traumatic brain injuries of the type that he received, which was from the shockwave of the blast as compared to receiving shrapnel that penetrated his body.

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The army just didn't have a procedure in place.

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Its regulations did not directly address how to handle Purple Heart Awards in such circumstances.

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For McKinney,

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His circumstances were that he was present at this IED blast, and then just two weeks later, his second tour of duty in Iraq ended.

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And he was then put through a demobilization process.

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So he returned to the United States after just about two weeks, went to a base in the state of Washington where he completed a post-deployment health assessment.

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That's a military record that noted some of the symptoms that he had as a result of the blast.

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He then was demobilized and remained in the reserves, but was sent home to Idaho.

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Six months after the health assessment, the military conducts a health reassessment.

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And on the reassessment document, also a military medical record, that health reassessment notes extensive problems with his health as a result of that traumatic brain injury that he received.

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in October of 2005.

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Unfortunately for McKinney, not only was the Purple Heart Award not clearly defined in Army's regulations for traumatic brain injuries that were mild to moderate, meaning not penetrating with shrapnel through his skull, but also the Congress passed legislation just after

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His health assessment and his health reassessment, requiring the military to do a traumatic brain injury screening.

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And then that legislation required the screening to be implemented within six months of enactment.

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So he missed by on the order of the year.

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The change in the form that was the form used for the post-deployment health assessment that specifically asked questions, did you lose consciousness?

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Were you subjected to any blasts?

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What were they?

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The forms became much more detailed after he left his time in Iraq and after his health assessments.

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And so the evidence is from a time when the army didn't collect the information in the most rigorous fashion.

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In addition, McKinney, when he was in Iraq, was in charge of 45 men.

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He was at a firebase.

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And just to orient the court in terms of the terminology that's used, a firebase is a small installation.

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It's roughly the size of a Little League baseball diamond.

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It's not a big area.

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And in fact, there were 110 men assigned to that firebase where he was located, but he had 45 men under his charge.

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And so when he went out on what was called a mounted patrol, and that simply means that there was a gun that was mounted and it was an automated fashion so that somebody could scan for enemies or insurgents.

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from the vehicle that they were in.

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He was in a mounted patrol with three Humvees, with some Iraqi police, and so he had men under his charge.

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That whole patrol was his responsibility.

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So when he completed his affidavit the day after the IED blast occurred, he focused on the blast, which is exactly what you're supposed to do with the type of document that he was completing.

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The military record that he was asked to complete that affidavit was to detail the blast itself.

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It was not to detail any injury to himself.

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And in addition, because he had 45 men under his charge, he was focused on taking care of his men and not addressing any ill effects that he might have been receiving and in fact was receiving, was feeling from the blast itself.

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So the the issue before the court is whether the army board for correction of military records had has properly denied his request for reward of the purple heart, which is not a discretionary award.

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It's an award that is made based on the regulation itself, which has effectively three prongs to it.

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Those being, there must be a wound, there must be a statement in the member's medical record, that's the service member's medical record, that the severity of the wound was such that it would have required treatment by a medical officer if one had been available to provide treatment.

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And finally, the records were made a matter of official army medical records or army records.

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I can tell you that there was no medic with his patrol in the field, he was on a firebase and there was no medical officer on his firebase.

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If he wanted medical treatment after that IED blast he would have had to

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engage a group of other service members to travel with him to protect him, because remember, he's in effectively a war zone in Iraq.

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It was not a safe place.

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He would have had to have traveled to what's called the Forward Operating Base, which as I understand it had about 4,000 service members at it.

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So he was at a fire base with 110.

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It was essentially in the field.

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And then in addition, if he wanted medical treatment by a medical officer,

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there is effectively a field hospital at a forward operating base, he would have had to have traveled miles away from his fire base in order to get that treatment.

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In the last two weeks of his deployment, when there was a change of command occurring and when he was in charge of 45 men, including their demobilization,

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including their return back to the United States and getting the next group who was taking over at the Firebase ready for their responsibilities.

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And so, Mr Watkins can I ask you a question about our standard or for view here, or the standards under which we review this.

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You've argued that we should apply the substantial evidence test here, but isn't the board's decision an informal adjudication?

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So don't we apply arbitrary and capricious review to this case?

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It should be an arbitrary and capricious review under the APA.

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I agree, Your Honor.

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The trick here is that the circuit precedent says that unusual deference is given to the army board in its decision-making, but the APA says nothing about applying unusual deference to any decision of an agency.

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And so there's a disconnect between, at least from my perspective, from a balance perspective, between the circuit precedent

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and the APA.

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I see that I'm into my rebuttal time, but I'm happy to continue answering questions.

[00:08:28] Speaker 00:
Yeah, I have one, and we'll give you a rebuttal time, but I have one question, follow-up question for you, which is the second prong of the regulation deals with treatment by a medical officer or a medical professional in some situations.

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Yes.

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And for that, I take it the principle

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evidence that you have in support of satisfying that prong is Dr. de Leon's statement that's in the record.

[00:08:57] Speaker 02:
Well actually it goes back, it goes beyond Dr. de Leon's statement because there is extensive recounting of all of the different treatments he received

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upon return to the United States among the medical records that are in the appendix.

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So there were a number of different doctors.

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One important one at the VA also was Dr. Burns who did an extensive write-up and an evaluation of his medical conditions and also linked his stroke to blast in Iraq.

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And so the only record that directly links the October 2005 blast

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to his stroke is the record from Dr. de Leon.

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But I would say that there is great sort of recounting of the different therapies that he had to receive back in the United States because of all of his symptoms.

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He was having memory loss.

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He had problems with his stability and balance.

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His problems were quite extensive and continue to this day.

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I mean, even today, his wife has to button his shirt for him.

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He's unable to do that.

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All right.

[00:10:11] Speaker 00:
And on Dr. de León's, thank you for that.

[00:10:13] Speaker 00:
And on Dr. de León's, let me just make sure I completely understand the situation, that he was not a medical officer at the time that he rendered the opinion that's in the record.

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But your argument has been that it doesn't matter because he was a medical officer at one time.

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And so the usefulness of his

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examination is contingent on agreement with you that as long as he was a medical officer at one point, that's enough, even if he wasn't a medical officer at the time that the document was prepared.

[00:10:50] Speaker 02:
I think we have even more leeway with his medical opinion because the Purple Heart Regulation allows a medical professional who was not in the military to render the opinion as long as a medical officer in the army

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makes it a record in his medical records.

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So really any civilian physician could have given the opinion that he required treatment and then a medical officer simply has to translate that into a medical file that is a military record.

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So to make it a record and to make his treatment records part of his military file.

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And so it really doesn't

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To me, it's more important that Dr. de Leon had a sense of what it was like to be in Iraq, being a medical officer who served there during the time that McKinney was there, he understood what it was like to be in the field around very dangerous situations, having to act without worrying about one's personal health.

[00:11:53] Speaker 02:
but trying to just keep 45 men safe.

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And so from his perspective, I think it was important that he was able to generate an opinion after the fact, but it really doesn't matter whether he was a medical officer giving the opinion or not, because the Purple Heart Regulation, as it has evolved over time, now permits that opinion to be used by the Army.

[00:12:17] Speaker 03:
As long as somebody in Army- Excuse me, Council.

[00:12:20] Speaker 03:
Yes.

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indication in the record that his medical situation or injury is a result of continuity of experiences rather than attributable to the 2005 explosion.

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So I'm glad you asked that question.

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I'd like to address it.

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So the only medical opinion in the record, including the medical opinion that the army board

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relied upon.

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The only opinion that actually addresses the circumstances surrounding each of the three blasts that McKinney was exposed to is Dr. de Leon's opinion.

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And that opinion specifically links the October 2005 blast to a loss of consciousness.

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Dr. Burns did not address whether it was cumulative.

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The Army medical opinion by Dr. Sullivan, relied upon by the Army Board, did not address the evidence that was in the record that was Dr. de Leon's opinion that it was not a cumulative effect, but in fact it was from a single blast.

[00:13:33] Speaker 02:
So he was subjected to multiple blasts, but the only one that mattered for purposes of a traumatic brain injury was the last one that he received in October 2005, just before he left active duty in Iraq.

[00:13:49] Speaker 00:
OK, let me make sure we have no further questions for you at this point, and we will give you some rebuttal time.

[00:13:55] Speaker 00:
We don't want to hear from the government at this point.

[00:13:57] Speaker 00:
Thank you, Mr. Watkins.

[00:13:58] Speaker 02:
Thank you, Your Honor.

[00:13:59] Speaker 00:
Mr. Mahard.

[00:14:04] Speaker 01:
Thank you, and good morning, your honors, and may it please the court, Special Assistant U.S.

[00:14:09] Speaker 01:
Attorney Sean Mohard on behalf of Appellee on detail to the U.S.

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Attorney's Office from the U.S.

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Army Judge Advocate General Corps.

[00:14:17] Speaker 01:
The issue presented here is whether the Army Board for the Correction of Military Records violated the APA and denied McKinney's request for the Purple Heart.

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Sergeant First Class McKinney does not meet the requirements for the Purple Heart as established in Army Regulation 600-8-22.

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As the awards and decoration branch noted in its June 19th, 2014 letter to McKinney, this determination in no way reflects negatively on your honorable service to our nation.

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And that is correct.

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McKinney has honorably served his nation.

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But the issue here is whether the IED blast he was exposed to on 9 October 2005 meets the regulatory requirements for the Purple Heart.

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It does not.

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The Purple Heart requires a wound, injury or death resulting from enemy or hostile act,

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the wound or injury must have required treatment, not merely examination by a medical officer, and the medical treatment must have been made a matter of the soldier's medical records.

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Relevant to this case, mild traumatic brain injury, severe enough to cause either loss of consciousness or restriction from full duty, is a clear example of a qualifying injury for award of the Purple Heart.

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The court should affirm the Army Board for correction of military records decision so long as it comports with the Administrative Procedure Act's deferential standard.

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And in fact, in this case, an unusually deferential application of the arbitrary and capricious standard applies as this is a case that requires military judgment and military expertise.

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Here, the board's decision evidences reasoned decision-making as the board examined the relevant data

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and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.

[00:16:05] Speaker 01:
My friend on the other side argues that it's immaterial that Dr. de Leon is no longer a medical officer, but it is not.

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Dr. de Leon is not a medical officer as contemplated by the army regulation,

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And his 2013 statement is insufficient to meet that requirement under the Army regulation.

[00:16:34] Speaker 00:
So can I ask you, just on that one, there's nothing in the Army board's decision itself that makes reference to Dr. de Leon's statement, right?

[00:16:48] Speaker 00:
So in terms of whether he was not a medical officer.

[00:16:52] Speaker 00:
In terms of whether he was not a medical officer at the relevant time, we have that from your brief, but the decision itself that we're reviewing doesn't say anything about that.

[00:17:05] Speaker 01:
Your honor, I would point to the consideration of evidence section of the board's decision does mention Dr. DeLeon's 2013 statement.

[00:17:13] Speaker 01:
In the discussion section, it is not mentioned, although I would point to the third paragraph of the discussion section, your honor, where the board discusses Dr. Sullivan, the Army's doctors,

[00:17:27] Speaker 01:
opinion and his conclusion that McKinney's TBI appears to be a result of cumulative effect as opposed to being caused by a specific event.

[00:17:37] Speaker 01:
My friend on the other side argues that he didn't, Dr. de Leon's statement is the only opinion in the record to address what occurred on 9 October 2005, but Dr. Sullivan did address that.

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He looked at the 9 October 2005 incident

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and whether it could be connected to McKinney's TBI.

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He concluded otherwise.

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And the board's reliance on that decision and opinion is appropriate and entitled to deference under the circuit's precedent.

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So the way you're looking at it is that paragraph three recounts Dr. Sullivan's statement, the facts

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The background section indicates that de Leon's statement was taken into account.

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And so the way to read the army board's decision is that under paragraph three that incorporates a consideration of de Leon's opinion and The board ended up relying on Sullivan for the proposition that notwithstanding Dr de Leon's statement that the ultimate conclusion of the board was that

[00:18:49] Speaker 00:
in agreement with Dr. Sullivan that the injuries were a result of multiple episodes as opposed to just the October, 2005 one.

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Is that the way you're looking at it?

[00:19:01] Speaker 01:
That's correct, your honor.

[00:19:04] Speaker 01:
That is your honor.

[00:19:05] Speaker 01:
And I would also point to the fourth paragraph where the board articulates that they looked at the evidence provided from the Veterans Affairs doctors, which

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McKinney points to in his brief.

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So it wasn't simply just reliance on Dr. Sullivan's opinion, reliance in the sense that, yes, that's what they credited, but they did evaluate the evidence in the record.

[00:19:36] Speaker 01:
Your Honor, the board's opening point in its decision is

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There is no evidence in the available record and neither the applicant nor his counsel submitted sufficient evidence showing he was treated by medical personnel for an injury wound he received as a result of hostile action on or near 9 October 2005.

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And the Purple Heart Regulation requires that the applicant connect the alleged injury or wound to a specific incident.

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And as Dr. Sullivan's opinion makes clear, and the third paragraph of the board decision makes clear, McKinney is unable to connect the 9th October, 2005 incident to his traumatic brain injury.

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Furthermore, and also dispositive.

[00:20:22] Speaker 03:
Excuse me, counsel.

[00:20:25] Speaker 03:
If medical treatment was required, even though it was not available,

[00:20:33] Speaker 03:
That would satisfy the Purple Heart, wouldn't it?

[00:20:40] Speaker 01:
Your honor, only if a medical officer provided a statement saying that medical treatment was required.

[00:20:47] Speaker 03:
Yes.

[00:20:48] Speaker 03:
Your statement was medical treatment was necessary, but that's not quite so.

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If it was required but was unavailable and was subsequently certified to be that,

[00:21:02] Speaker 03:
then he would be entitled, right?

[00:21:08] Speaker 01:
If it was substantively certified that he required medical treatment, that's correct, your honor, by a medical officer, then yes, it would meet the standard under the regulation, yes, your honor.

[00:21:23] Speaker 01:
But in this case, McKinney has failed to provide a statement by a medical officer that he required treatment.

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And Dr. Sullivan reviewed the available medical evidence in the record and did not reach that conclusion.

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It's also worth noting that Dr. de Leon's 2013 statement in and of itself, even assuming he was a medical officer,

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which is Pelley's position he is not, it wouldn't meet it.

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He used the word expected instead of required.

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And he also failed to describe what treatment would meet, would be required in that instance.

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And not any type of treatment suffices under the purple heart regulation.

[00:22:05] Speaker 01:
It needs to be a specific type of treatment.

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And his opinion is silent as to what that treatment would require.

[00:22:13] Speaker 01:
As a result, it's inherently speculative to go back in time and try to determine what would have occurred following the incident and then that it would then meet the standard under the Purple Harp regulation.

[00:22:42] Speaker 01:
Finally, your honor, the purple heart regulation requires that the medical records be a part of.

[00:23:00] Speaker 00:
So I think we lost the signal.

[00:23:01] Speaker 00:
Is that, is everybody else seeing that as well?

[00:23:04] Speaker 03:
Yep.

[00:23:05] Speaker 00:
All right.

[00:23:06] Speaker 00:
Let's just give a couple of seconds to see if it comes back in.

[00:23:11] Speaker 03:
Is that your fault?

[00:23:15] Speaker 00:
That's to be determined by anyone else.

[00:23:19] Speaker 03:
Can we have an investigation?

[00:23:30] Speaker 00:
Well, I think we've lost the signal.

[00:23:33] Speaker 00:
I think Mr. Marhard was on his final point.

[00:23:35] Speaker 00:
So why don't we go to rebuttal

[00:23:40] Speaker 00:
Mr. Watkins, we'll give you your two minutes for rebuttal.

[00:23:46] Speaker 00:
Actually, let's hold off.

[00:23:47] Speaker 00:
Mr. Watkins, why don't you wait just for a second.

[00:23:48] Speaker 00:
Let's see if we can get Mr. Maher back on just so at least he can.

[00:23:53] Speaker 00:
Let's give him just a second.

[00:24:33] Speaker 03:
Shree, why don't we let this gentleman go ahead and then we can go back to... Well, I'm definitely prepared to do that.

[00:24:42] Speaker 00:
I just want to make sure that so that he can, Mr. Mahard can hear what Mr. Watkins says.

[00:24:46] Speaker 00:
So we're not doing the argument without him present.

[00:24:50] Speaker 03:
Your point.

[00:24:50] Speaker 03:
I understand.

[00:24:54] Speaker 00:
Why don't we do this one?

[00:24:55] Speaker 00:
And can we stop the argument for now and see if we can get him on in the next minute or two?

[00:25:03] Speaker 04:
Judge, I have called Mr. Hard and he's in the process of coming back with a phone connection.

[00:25:09] Speaker 00:
Okay.

[00:25:10] Speaker 00:
All right, then let's wait for that.

[00:25:11] Speaker 00:
Thank you.

[00:25:16] Speaker 01:
Good morning, your honors.

[00:25:17] Speaker 01:
This is a special assistant U. S. Attorney show my heart.

[00:25:20] Speaker 01:
I apologize.

[00:25:21] Speaker 01:
I experienced some technical difficulties.

[00:25:23] Speaker 01:
I have called in on my cell phone.

[00:25:27] Speaker 00:
Good.

[00:25:27] Speaker 00:
We can hear you.

[00:25:27] Speaker 00:
So I think you still have about a minute left.

[00:25:29] Speaker 00:
So you're welcome to wrap up if you'd like.

[00:25:32] Speaker 00:
Thank you.

[00:25:33] Speaker 01:
Thank you, your honor.

[00:25:36] Speaker 01:
Uh, in, in some, your honor, the, uh, decision of the army board for the correction of military records, evidence is reasoned decision-making and under the, uh, unusually deferential application, the arbitrary and capricious standard, uh, entitled to the board's opinion in this case, uh, the board meets this meets the applicable standard of review.

[00:25:59] Speaker 01:
Accordingly, uh, appellee asked that the district court be affirmed.

[00:26:03] Speaker 01:
Thank you.

[00:26:05] Speaker 00:
Thank you, Mr Mahard.

[00:26:06] Speaker 00:
Mr Watkins will now give you your two minutes for a bottle.

[00:26:11] Speaker 02:
Thank you, your honors.

[00:26:12] Speaker 02:
First, I want to respond to opposing council statement that the treatment must have occurred on or near the time of the incident.

[00:26:21] Speaker 02:
The regulation doesn't say that this has been a theme that has appeared in the army board's opinion

[00:26:29] Speaker 02:
and has propagated afterward.

[00:26:31] Speaker 02:
And I can't find any evidence that it needs to be close in time.

[00:26:38] Speaker 02:
The nature of a traumatic brain injury is such that you don't necessarily know that you have one the instant that occurs.

[00:26:45] Speaker 02:
And even if you do have one, as a service member, particularly McKinney,

[00:26:51] Speaker 02:
he was not medically trained.

[00:26:53] Speaker 02:
So how was he supposed to know that his symptoms were evidence of a traumatic brain injury?

[00:27:00] Speaker 02:
There was nobody, a medic or a medical officer with him to even ask the basics, to ask him questions related to orientation, to person, place, time and situation, right?

[00:27:13] Speaker 02:
If you're injured and somebody arrives with an ambulance, they're gonna ask you very basic questions.

[00:27:19] Speaker 02:
You know what day it is, you know what time there was nobody there to ask that instead they were worried about taking fire and whether whether they could secure the area.

[00:27:29] Speaker 02:
And so this was not a situation where immediate treatment was necessary.

[00:27:34] Speaker 02:
In fact,

[00:27:36] Speaker 02:
for a mild to moderate traumatic brain injury.

[00:27:39] Speaker 02:
This is what is called in medical terms, a progressive disease process.

[00:27:47] Speaker 02:
So the effects of the traumatic brain injury will be felt for the rest of McKinney's life.

[00:27:53] Speaker 02:
Some people get worse symptoms than others.

[00:27:56] Speaker 02:
His have been particularly severe.

[00:27:57] Speaker 02:
He doesn't drink, he doesn't smoke, he's Mormon.

[00:28:01] Speaker 02:
yet he suffered a stroke with no family history of strokes.

[00:28:06] Speaker 02:
And it was tied directly to the traumatic brain injury.

[00:28:10] Speaker 02:
He had his entire mouth rebuilt because when he arrived back, his teeth, his molars were split in half right down the middle, all the way down to the root.

[00:28:21] Speaker 03:
Council, he has received benefits from the VA, from the army because of his

[00:28:30] Speaker 03:
disabilities, isn't that correct?

[00:28:33] Speaker 02:
He does get, he's rated a hundred percent permanent and total disabled by the VA.

[00:28:38] Speaker 02:
So it's a veteran's administration benefit, disability benefit, that's right.

[00:28:43] Speaker 02:
And not an army benefit.

[00:28:45] Speaker 02:
He did apply to the army for traumatic injury insurance.

[00:28:49] Speaker 02:
That's the subject of a separate problem because that was denied as well.

[00:28:58] Speaker 00:
Thank you.

[00:28:59] Speaker 00:
Thank you, Mr. Watkins.

[00:29:00] Speaker 00:
Thank you to both counsel.

[00:29:03] Speaker 03:
May I say something?

[00:29:05] Speaker 03:
Of course.

[00:29:06] Speaker 03:
Would you, without regard to the merits of the case, would you express my view that thank Sergeant McKinney for his service?

[00:29:17] Speaker 02:
That will mean a tremendous amount to him that you said that.

[00:29:20] Speaker 02:
I was in frequent communication with him over the weekend, and this is very meaningful to him that a court is paying attention to.

[00:29:28] Speaker 02:
So thank you, and thank you for expressing your gratitude for his service.

[00:29:33] Speaker 02:
So I'll immediately call when the argument's over and let him go.

[00:29:37] Speaker 00:
Thank you, Judge Silberman.

[00:29:38] Speaker 02:
Thank you, Your Honor, for your service.

[00:29:42] Speaker 00:
Thank you, Mr. Walken, and please extend that on behalf of all of us.

[00:29:44] Speaker 00:
Thanks, Judge Silberman.

[00:29:46] Speaker 00:
And we'll take this argument under submission.