please proceed when you're ready warning made it please the court you 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 kirkuk when he suffered his traumatic brain injury at that moment the army ha no systematic approach for addressing traumatic brain injuries of the type that he received which was from the shock wave of the blast as compared to receiving shrapnel that penetrated his body the  army just didn't have a procedure in place it's regulations did not directly address how to handle purple heart wards in such circumstances for mckinney is circumstances process 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 that's a military record that noted some of the symptoms that he had as a result of the blast he then was demobilized and remained in the reserves but was sent home to idaho six months after the health assessment the military conduct say whoa re assessment and on the reassessment document also in military medical records that health reassessment notes extensive problems with his health as a result of that traumatic brain injury that you received in october of two thousand and five unfortunately for mckinney not only was the purple heart or ward not clearly defined in armies regulations for traumatic brain injury that were mild to moderate meaning not penetrating with shrapnel through his skull but also the congress pass legislation just after his health assessment in his health reassessment requiring the military to do a traumatic brain injury screening and then that legislation required the screening to be implemented within six months of the next minute so he missed by on the order of the year the change in the form that was the form used for the post deployment health assessment specifically asked questions did you lose consciousness were you subjected to any blasts what were they the forms became much more detail after he left his his time in iraq and after his he the evidence is from a time when the army didn't collect the information in the most rigorous fashion in addition mckinney when he was in iraq was in charge o forty five dollars men he was at a fire base and just to orient the court in terms of the terminology that's used a firebase is a small installation it's roughly the size of a little league baseball diamond it's not a big guy area and in fact there were one hundred and ten dollars men assigned to that fire base where he was located but he had forty five dollars men under his charge and so when he went out on what was called a mounted patrol and that simply means that there was a a a gun that was mounted and that was an automated fashion so that somebody could stand for and emmys are insurgents from the vehicle that they were in and he was an amount of patrol with three humvees with some iraqi police and so he had men under his charge that whole patrol was his responsibility so when he  completed his affidavit the day after or the the i e d blast occurred he focused on the blast which is exactly what you're supposed to do with the type of documents that he was completing the  military record that he was asked to complete that affidavit was to detail the blast itself that was not to detail any injury to himself and in addition because he had forty five dollars 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 an effect was receiving was feeling from the blast itself so the the issue before the court is whether the army board for correction of military records had properly denied his request for award of the poor purple heart which is not a discretionary award it's an award that is made based on  the regulation itself which has effectively three prongs to it 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 wo was such that it would have required treatment by a medical officer if one had been available to provide treatment and finally the records were made a matter of official army medical records or army records i can tell you that there was no medic with his patrol in the field he was on a fire base and there was no medical officer on his fire bates if he wanted medical treatment after that i e d blast he would have had to  a group of other service members to travel with him to protect him because remember he's in a effectively a war zone in iraq it was not a safe place he would have had to of travel to what's called the forward operating base which as i understand it had about four thousand service members at it so he was at a fire base with one hundred pen it was essentially in the field and then in addition if you wanted medical treatment by a medical officer  there is affected lee a field hospital at a forward operating base he would have had to have probably miles away from his fire base in order to get that treatment in the last two weeks of his deployment when there was a change of command occurring and when he was in charge of forty five dollars men including their demobilization including their return back to the united states and getting the next group who was taking over at the fire base ready for their responsibilities and so  the trick here is that the circuit precedent says that unusual deference is given to the or me board in its decision making but the a p a says says nothing about applying unusual deference to any decision of an agency and so there's a disconnect between it least from my perspective from a balance perspective between the circuit precedent and the a p a i see that i'm into my rebuttal time but i'm happy to continue answering questions yeah i have one and will give you about a time but i have question follow a question for you which is the nd prong of the the regulation deals with treatment by a medical officer or a medical professional in some situations yes and and for that i take it the principal evidence that you have in support of satisfying that prong is dr daley ons statement that's in the record well actually it goes back it goes beyond dr daley own statement because there is extensive recounting of all of the different treatments he received upon return to the united states among the medical records also linked his stroke to blast in iraq and so the only record that directly links the october two thousand and five last to his  stroke is the record from dr de leo but i would say that there is a great sort of recounting of the different therapies that he had to receive back in the united states because of all of his symptoms he was having memory loss he had problems with his stability and balance is problems were quite extensive then continued to this day i mean even today his wife asked about new shirts for him he's only able to do that right and i'm dr dale yellin thank you for that and a doctor they own deli else let me just make sure i i completely understand the situation that he he was not a medical officer at the time that he rendered the opinion that's in the record but your argument has been that it doesn't matter because he was a medical officer at one time right and so the usefulness of his  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 i think we have even more leeway with with his medical opinion because the purple heart regulation allows a medical professional who is not in the military to render the opinion as long as a medical officer in the army makes it a record in his medical records so really any civilian physician could have given the opinion that he required treatment and then the medical officer simply has to translate that into a medical file that is a military record so to make it a record and to make his treatment records part of his military file and so it really doesn't it it to me it's more important that dr daley yonah 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 but trying to just forty five men safely 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 indication in the record that his medical situation or andry is a result of continuity of experiences rather than attributable to the two thousand and five explosion so i'm glad you asked that question i'd like to address it so the only medical opinion in the record including the medical opinion that the army board  relied upon the only opinion that actually addresses the circumstances surrounding each of the three blasts that mckinney was exposed to is dr daley owns a pit and that opinion relied upon by the army board does not address the evidence that was in the record that was dr daley owns opinion that it was not a cumulative effect but in fact it was from a single blast so he was subjected to multiple blasts but the only one mattered for purposes of the traumatic brain injury was the last one he received in october two thousand and five just before he left active duty in iraq ok let me make sure we have no further  branch noted and its june th two thousand and fourteen letter to mckinney determination in no way reflects negatively on your honorable service to our nation and that is correct mccain has honorably served his nation but the issue here is whether the i e d blast he was exposed to and then october two thousand and five meets the regulatory requirements for the purple heart does not the purple heart requires a wound in her death resulting from enemy or hostile act the would or injury must required treatment not merely examination by medical officer and the medical treatment must have been made a matter of the soldier's medical records 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 wars with the court of the army board for correction of military records decision so long as it comports with the administrative procedure acts deferential standard or 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 here the board's decision evidences reasoned decision making as the board examined the relevant data in articulated a satisfactory explanation for its action including irrational connection between the facts found and the choice made my friend on the other side argues that it's immaterial that dr bill manion is no longer in medical officer but it is not dr de leon is not a medical officer as contemplated by the army regulation and his two thousand and thirteen statement is insufficient to meet that requirement under the army regulation look i ask you just on that one there is nothing in the army board's decision itself that makes reference to dr daley owens statement right so you in terms of wh honor would point to the consideration of evidence section of the board's decision does mention dr dillon ons two thousand and thirteen statement in the discussion section it is not mentioned although i would point to the rd paragraph of the discussion specific event my friend on the other side argues that she didn't dr de lay on statement is the only opinion in the record to address what occurred on october two thousand and five but dr sullivan did address that if you looked at the nine october two thousand and five incident in whether it could be connected to mckinney's t b i he concluded otherwise and the board's d just reliance on that  decision and it's opinion is appropriate and entitled to deference under the circuit's precedent so the way you're looking at it is that three recounts dr sullivan statement the facts and the background section indicates that the leon's statement was taken into account and so the way to read the army board's decision is that under paragraph three that incorporates a consideration of the aliens opinion and the board ended up relying on sullivan for the proposition that notwithstanding dr daley on's statement that the ultimate conclusion of the board was that honor and i would also point to the th paragraph where the board you know articulate that they looked at the evidence provided from the veterans affairs doctors which mckinney points to in his brief so it wasn't simply just reliance on dr sullivan's opinion or bias in the sense that yes that's what they credited but they did a value wait the evidence in the record your honor the board's opening point in its decision is there is no evidence me available record in either the african or as counsel submitted sufficient evidence showing he was treated by medical personnel for an injury when he received as a result of hock hostile action dr sullivan's opinion makes clear and the rd paragraph of the board decision makes clear mckinney is unable to connect the nine x over two thousand and five incident to his traumatic brain injury  your honor only if a medical officer provided a statement saying that medical treatment was required yes i admit you need it has against your statement was medical treatment was necessary but that's not quite so if it was required but was unavailable and was subsequently certified to be that then they would be entitled right but in this case mckinney has failed to provide a statement by a medical officer that the required treatment and dr sullivan reviewed the available medical evidence in the record and did not reach that conclusion and he also failed to describe what treatment would meet would be required in that instance and not any type of treatment suffices under the purple heart regulation needs to be a specific type of treatment and his opinion silent as to what that treatment would require 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 heart regulation the purple heart regulation requires that to the medical records part of it was i think we lost the signal is that as everybody else seen that as well yep all right let's just give a couple seconds to see if it comes back and is that your fault  that's to be determined by anyone else can we have an investigation this is a special assistant u s attorney from our diet college experience and some technical difficulties i have called him on my cell phone good we can hear you so i think you still have about a minute left so you're welcome to wrap up like thank you thank you your honor in some your honor decision of the army board for the correction of military records evidences reasoned decision making and under  treatment must have occurred on or near the time of the incident the regulation doesn't say that this is been the theme that has appeared in the army board's opinion and has propagated afterward and i can't find any evidence that it needs to be close in time it's the nature of a traumatic brain injury is such that you don't necessarily know that you have one the instant that occurs and even if you do have one as a service member of particularly mckinney he was not medically trained so how was he supposed to know that his symptoms were evidence of a traumatic brain injury there was nobody a medic were a medical officer with him to even ask the basics to ask him questions related to orientation to person place time in situation right if you're injured and somebody arrives with an ambulance they're going to ask you very basic questions 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 read whether they could secure the area and so  this was not a situation where immediate treatment was necessary in fact for a mild to moderate traumatic brain injury this is what is called in medical terms a a a progressive each disease process so the effects of the traumatic brain injury will be felt for the rest of mckinney's life some people get worse a victim's than others is have been particularly severe or he doesn't drink he doesn't smoke he's mormon yet he suffered a stroke with no family history of strokes and it was tied directly to the traumatic brain injury he had his entire mouth rebuilt because when he arrived back his teeth  disability isn't that correct he does get he's rated one hundred percent permanent and total disabled by the v a so it's a veteran's administration benefit disability benefit that's right enough an army benefits  service that will mean a tremendous amount to him that you said that i was in frequent communication with them over the weekend and this is very meaningful to him that that accord is paying attention to so thank you and thank you for and i will take this argument or submission