Hugh Campbell McKinney v. Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
HUGH CAMPBELL MCKINNEY,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2023-1930
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
______________________
Decided: January 14, 2026
______________________
SETH A. WATKINS , Watkins Law & Advocacy, PLLC,
Washington, DC, argued for petitioner.
D ANIEL F ALKNOR, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
ELIZABETH M ARIE HOSFORD, P ATRICIA M. MCCARTHY ,
YAAKOV ROTH ; E VAN SCOTT G RANT , Y. K EN L EE , Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before P ROST , REYNA, and CHEN, Circuit Judges.
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 2
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 Service-
members’ Group Life Insurance (TSGLI) to include illness
or disease caused by explosive ordnance. See Servicemem-
bers’ Group Life Insurance Traumatic Injury Protection
Program, 88 Fed. Reg. 15,907 (Mar. 15, 2023) (Final De-
nial). TSGLI covers servicemembers who suffer a trau-
matic 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 phys-
ical 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 in-
consistent with the types of injuries the TSGLI was de-
signed 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
I
On May 11, 2005, the President signed into law the leg-
islation 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 Servicemem-
bers’ Group Life Insurance shall automatically be insured
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 3
for traumatic injury in accordance with this section” and
that “[i]nsurance benefits under this section shall be paya-
ble 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 ex-
perience (1) a traumatic event that results in (2) a trau-
matic injury directly causing (3) a qualifying “scheduled
loss” are eligible to receive a TSGLI payment. The VA de-
fined “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 de-
fined in [§ 9.20(b)].” Id. § 9.20(c)(1). However, “the term
‘traumatic injury’ does 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 in-
fection, biological, chemical, or radiological weapons, or ac-
cidental ingestion of a contaminated substance.” Id.
§ 9.20(c)(2) (emphasis added). The regulation thus draws
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.
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 4
a distinction, for the most part, between physical damage
caused by a traumatic injury and damage caused by an ill-
ness 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 trau-
matic 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 gener-
ally excluded from the definition of “traumatic injury” be-
cause “the term ‘injury’ refers to the results of an external
trauma rather than a degenerative process.” Traumatic
Injury Protection Rider To Servicemembers’ Group Life In-
surance, 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 of TSGLI.” Id. (em-
phasis added). Thus, the VA specified that diseases result-
ing from those hazards are within the definition of
“traumatic injury.” See 38 C.F.R. § 9.20(c)(2)(ii).
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 be-
cause the United States Army determined that
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 5
Mr. McKinney’s stroke was a physical illness or disease ra-
ther than a qualifying traumatic injury under 38 U.S.C.
§ 1980A(a)(1).
In March 2015, Mr. McKinney filed a petition for rule-
making, 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 Vet-
erans Affs. Mar. 16, 2015) (Petition for Rulemaking);
J.A. 935. Mr. McKinney’s proposed amendment would ex-
pand “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. McKin-
ney’s TBI, which triggered a disease process that eventu-
ally led to Mr. McKinney’s stroke.2 Accordingly,
Mr. McKinney’s stroke would also be covered by TSGLI.
Mr. McKinney asserted that there is no meaningful dif-
ference between physical illness or disease that is linked to
explosive ordnance and the types of physical illness or dis-
ease already covered by the VA’s regulation, i.e., illnesses
or diseases caused by pyogenic infection, biological, chemi-
cal, or radiological weapons, and accidental ingestion of a
contaminated substance. In Mr. McKinney’s view, explo-
sive ordnances such as IEDs “produce immediate harm”
which then follows a “disease process” similar to the five
2 Since both parties discuss only TBIs caused by ex-
plosive ordnance, see, e.g., Pet’r’s Br. 15; Resp’t’s Br. 15, we
will use “TBI” interchangeably with “TBI caused by explo-
sive ordnance” when discussing the causal connection be-
tween explosive ordnance, TBI, and the downstream
physical illness or disease.
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 6
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 anni-
versary 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 regu-
latory 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 reg-
ulatory changes requested in his petition until it completed
its Year-Ten Review of the TSGLI program. We subse-
quently granted Mr. McKinney’s unopposed motion to dis-
miss his petition for review and noted that Mr. McKinney
planned to refile a petition for review once the VA com-
pleted 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 rule-
making petition in the accompanying report. Instead, the
VA stated that it would “respond to [Mr. McKinney’s] peti-
tion 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, subse-
quent 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.
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 7
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 dis-
ease that materializes long after exposure to explosive ord-
nance (1) would be inconsistent with TSGLI’s purpose of
providing compensation for injuries occurring immediately
after a traumatic event; (2) would 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 incon-
sistent 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 dif-
ferent variables that could cause the various diseases and
illnesses associated with explosive ordnance, and therefore
the VA declined to extend TSGLI coverage to those ill-
nesses 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 rule-
making 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 omit-
ted). That review must be based on the “whole record” be-
fore the agency as of its decision. 5 U.S.C. § 706; Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 419 (1971).
In reviewing an agency’s denial of a petition for rule-
making under 5 U.S.C. § 553(e), we must determine
whether the agency’s decision was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” Id. at 414 (citation omitted). This is a highly defer-
ential standard, and our review of an agency’s decision not
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 8
to promulgate a requested rule is “extremely limited.”
Massachusetts v. EPA, 549 U.S. 497, 527–28 (2007) (cita-
tion 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 pe-
tition. 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 decisionmak-
ing in rejecting the petition.” (citation omitted)); Premin-
ger, 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 ‘arbi-
trary 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 connec-
tion between the facts found and the choice made.” Motor
Vehicles Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted).
However, an unsupported denial or a “clear error in judg-
ment” warrants reversal of a denial of a petition. Flyers
Rts. Educ. Fund, Inc. v. FAA, 864 F.3d 738, 743 (D.C. Cir.
2017) (citation omitted).
D ISCUSSION
Mr. McKinney advances three primary arguments in
his petition for review.3 First, he contends that the VA’s
3 In a filing made on the eve of oral argument,
Mr. McKinney belatedly contends that the “extremely
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 9
several-year delay and alleged misrepresentation of his
personal health information to outside medical experts con-
stitute 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 42–43. Finally,
Mr. McKinney asserts that the VA’s denial of his petition
is arbitrary and capricious because the VA failed to reason-
ably 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 oppo-
site 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.
I. Bad Faith
Mr. McKinney identifies 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 adminis-
trative record contains outdated medical evidence
limited” and “highly deferential” standard of review that
applies to review of the VA’s denial of a petition for rule-
making is no longer appropriate after Loper Bright Enter-
prises v. Raimondo, 603 U.S. 369 (2024), overruled Chevron
deference. ECF No. 59 at 2 (citing Loper Bright, 603 U.S.
at 412); see Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984). Mr. McKinney, however, does
not explain why Loper Bright overturns the existing stand-
ard of review that applies to cases like this one. As this
issue is not adequately briefed, we decline to consider it.
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 10
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 ill-
nesses and diseases. Id. at 37–38; see also J.A. 1493–1504
(Masel and Dewitt paper). Mr. McKinney additionally ar-
gues that the VA mischaracterized his health profile when
consulting with outside medical experts, thereby biasing
them to be “even more skeptical” of his rulemaking peti-
tion. Id. at 40 (citing J.A. 1291–92). Mr. McKinney con-
tends 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 ir-
regularities he listed are inadequate to support setting
aside its decision. Cf. Flyers Rts., 864 F.3d at 747 (remand-
ing because “information critically relied upon by the
agency” was not available for review by the 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. Riv-
ers & 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 un-
reasonable six-year delay to “bureaucratic inefficiency ra-
ther 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
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 11
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 out-
side medical experts is unavailing. He selectively refer-
ences a portion of one interview summary that allegedly
shows the VA mischaracterized his health history to elicit
“‘even more skeptical’ reactions skewed 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 un-
derlying Mr. McKinney’s petition: before “the facts of the
petitioner’s case [were] provided,” the experts already ex-
plained that “if a biomarker showed that someone experi-
enced 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 likewise shows experts who are
skeptical of Mr. McKinney’s position that it is not difficult
to show a causal relationship between exposure to explo-
sive 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 be-
tween explosive ordnance and illness and disease in most
cases”); J.A. 1289–90 (“Summary of Meeting with Dr. M.
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 12
Sean Grady” stating that “today’s science would most likely
not allow a Servicemember to prove that one of these ill-
nesses/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 ad-
ministrative record to deny Mr. McKinney’s rulemaking
petition.
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 rel-
evant 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 compi-
lation 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 rulemak-
ing can be sparser than that needed to support rulemak-
ing.” Flyers Rts., 864 F.3d at 746. In the case of a denial
4 The index contains a list of the records the VA re-
lied 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)).
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 13
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 explana-
tion 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 rec-
ord—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. McKin-
ney 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 be-
lieves the record lacks proof that the VA has met its obli-
gation to consult with the DoD. See 38 U.S.C. § 1980A(j)
(“Regulations under this section shall be prescribed in con-
sultation 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 verac-
ity of those documents. He merely asserts that these com-
munications are not enough under 38 U.S.C. § 1980A(j).
Pet’r’s Reply Br. 2–3. Under the circumstances, we reject
this argument.
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 add-
ing 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
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 14
only examines the increased costs associated with adding
coverage for Post-Traumatic Stress Disorder (PTSD), a
mental disorder that is “separately considered from physi-
cal 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 ac-
tuarial 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 unreview-
able. 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 re-
quires “comments pro and con where deemed appropriate,”
WWHT, 656 F.2d at 818, Mr. McKinney does not persua-
sively 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] deci-
sion 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 presump-
tion of regularity is overcome. Mr. McKinney’s reliance on
Defenders of Wildlife v. Norton, 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
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 15
of Wildlife, the district court deemed the missing records to
be “significant” to the agency’s denial to initiate rulemak-
ing. 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 delib-
erately withheld based on improper assertion of the delib-
erative 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 be-
lieved warranted inclusion in the record. See J.A. 9049–67.
Mr. McKinney did not provide clear evidence to the con-
trary to disturb the presumption that “what appears regu-
lar is regular.” See Butler, 244 F.3d at 1340 (citations
omitted).
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 com-
ments pro and con where appropriate, but also includes the
agency’s explanation of its decision to reject Mr. McKin-
ney’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 decisionmak-
ing in rejecting the petition. See Preminger, 632 F.3d at
1353–54.
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 in-
dex it provides. We accordingly order the VA to certify the
index of rulemaking record consistent with the require-
ments of Rule 17(b)(2).
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 16
III. Arbitrary and Capricious Denial
Turning to the stated reasons for the denial of the rule-
making 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 rule-
making petition by (1) not addressing his “disease process”
argument; (2) taking a position contrary to its own regula-
tion; 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 suffi-
ciently responsive to Mr. McKinney’s petition. Mr. McKin-
ney’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. McKin-
ney’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 ex-
plosive 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 Pro-
posed Denial at 50983 (“The plain language of 38 U.S.C.
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 17
[§] 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 dis-
ease caused by the five specified exceptions (such as chem-
ical weapons) because “the physical damage resulting in a
covered loss would generally occur immediately and re-
quire prompt medical treatment” and because the damage
would immediately trigger the “disease process” causing
the downstream illness or disease. Traumatic Injury Pro-
tection 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 exam-
ple, acknowledged that the long latent periods after expo-
sure 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 arbitrar-
ily or capriciously in crediting medical sources showing an
inconclusive causal relationship between explosive ord-
nance, TBI, and subsequent illness or disease. In our view,
the VA’s denial adequately responded to Mr. McKinney’s
rulemaking petition, acknowledging the mixed record for
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 18
and against granting Mr. McKinney’s petition. See gener-
ally Final Denial; Proposed Denial; Motor Vehicles,
463 U.S. at 43.
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 sched-
uled 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 dis-
ease to immediately manifest, as the VA claimed in its de-
nial. 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 study7 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 De-
nial at 15909; Proposed Denial at 50983. Because 543 days
is within the two-year eligibility period where one is eligi-
ble for TSGLI benefits, Mr. McKinney believes that the VA
wrongfully denied his rulemaking petition. See Pet’r’s
Br. 55–56.
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
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).
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 19
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 relation-
ship Mr. McKinney theorized in his rulemaking petition is
less than clear. See Proposed Denial at 50982–83. The VA
therefore did not take a position contradictory to its regu-
lation.
Finally, Mr. McKinney is incorrect that there is no leg-
islative support for the VA’s denial of his rulemaking peti-
tion. Mr. McKinney argues that the one-page
congressional record discussing the establishment of
TSGLI “provides no hint of the two year period that VA in-
troduced 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 pur-
pose of the TSGLI program, which is to provide “immediate
payment” to wounded veterans “to sustain 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 pro-
gram’s purpose. Final Denial at 15909. The VA further
explained that “Congress knows how to include TSGLI cov-
erage for diseases if it so desires, and it did not do so.” Pro-
posed Denial at 50983 (citing Russello v. United States, 464
U.S. 16, 23 (1983)).
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MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 20
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 reg-
ulations. 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 defer-
ential and extremely limited review we have over the VA’s
denial of a proposed rulemaking petition.
We have considered Mr. McKinney’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we deny Mr. McKinney’s petition for review.
DENIED
COSTS
No costs.
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