White v. United States

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DAVID E. WHITE, JR., )

)

Plaintiff, )

)

Vv. ) Civil Case No. 16-2509 (RJL)

)

UNITED STATES OF AMERICA, )

) FILED

Defendant. )

MAY - 7 2020

Clerk, U.S. District & Bankrupt

MEMORANDUM OPINION Courts for the District of Columbia

(May St 5020) [Dkt. ## 18, 19]

Plaintiff Captain David E. White, Jr. (“plaintiff’ or “White’’), an Army veteran who

was injured during a suicide bombing in Afghanistan on March 2, 2012, brings suit against

the United States (“defendant” or “the Government’), challenging a U.S. Army Board for

the Correction of Military Records’ (“ABCMR” or “Board’’) denial of his application for

additional Traumatic Servicemembers Group Life Insurance (“TSGLI’) benefits for his

inability to perform activities of daily living (“ADL”) for at least 90 days following a

traumatic injury. Plaintiff seeks an additional award of appropriate TSGLI program

benefits, worth $25,000, and an award of attorney’s fees and costs based on the

Government’s alleged violations of the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 551 et seq. See First Am. Compl. Jf 21-25 [Dkt. #14]. Before this Court are the parties’

Cross-Motions for Summary Judgment. See Pl.’s Motion for Summary Judgment [Dkt.

#18] (“Pl.’s Mot.”); Def.’s Cross-Motion for Summary Judgment [Dkt. # 19] (“Defs.’

Mot.”). For the following reasons, defendant’s motion for summary judgment [Dkt. # 19]

is GRANTED, and plaintiff's motion [Dkt. # 18] is DENIED.

BACKGROUND

I. Procedural History

Plaintiff is a former active-duty Army captain, now in the reserves, who was

traumatically injured by an improvised explosive device on March 2, 2012 while serving

in Afghanistan. Pl.’s Mot. at 1. He suffered injuries to his right arm as a result of the blast,

including a right arm fracture and lacerations. Pl.’s Mot. at 1 (Administrative Record

(“AR”) 250); Def.’s Mot. at 1. He spent 18 days in a hospital recovering from his wounds.

Pl.’s Mot. at 1 (AR 140-60); Def.’s Mot. at 5 (AR 1-13).

White subsequently filed several claims under the TSGLI benefits program,

requesting benefits for his injuries and loss of ADLs. The Government does not dispute

that, as an active duty soldier serving in the U.S. Army, he was eligible to apply for TSGLI

benefits. See Def.’s Mot. at 5 (AR 1-13). White filed his first claim for TSGLI benefits

on May 16, 2012, seeking benefits for inpatient hospitalization for at least 15 days due to

a traumatic injury. Def.’s Mot. at 5 (AR 1). In support of his claim, he included a form

completed by his certifying medical provider, Dr. Stephanie Susskind, certifying that he

was hospitalized for at least 15 days. Def.’s Mot. at 5 (AR 6); Pl.’s Mot. at 5. While his

first claim was still pending, White filed a second claim on November 30, 2012, seeking

TSGLI benefits for his alleged ongoing inability to perform two ADLs—bathing and

dressing—covering the entire period since his injury on March 2, 2012. Pl’s. Mot. at 5-6

(AR 30-61); Def.’s Mot. at 5 (AR 30-42).

The Office of Servicemembers Group Life Insurance (“OSGLI’) approved White’s

first TSGLI claim for 15-day hospitalization on May 22, 2012 in the amount of $25,000.

It denied, however, his second claim on February 20, 2013 for additional compensation for

his loss of ADLs, citing a lack of evidence that he was unable to independently bathe and

dress up to the next claim threshold—more than 30 and at least 60 days. Pl.’s Mot. at 6

(AR 62-65); Def.’s Mot. at 5 (AR 62-64).

On October 22, 2013, White’s request for reconsideration, Pl.’s Mot. at 7 (AR 66-

113); Def.’s Mot. at 5 (AR 66-68), was also denied on the grounds that he had already

received payment for his 15-day hospitalization and had not provided evidence that he was

“incapable of performing ADLs of dress, or bathing for greater than 30 days.” See Def.’s

Mot. at 6 (AR 114-118); Pl.’s Mot. at 7 (AR 117-18). OSGLI’s letter of denial also stated,

“If the Soldier is able to perform the activity by the use of accommodating

equipment/adaptive, then the Soldier is considered able to independently perform the

activity.” Pl.’s Mot. at 7 (AR 117-18).

On his appeal to the TSGLI Appeals Review Panel in May 2014, White provided

additional supporting documentation for his additional benefits claim, including: (1) anew

medical certification by Dr. Dennis Hopkins, Pl.’s Mot. at 7 (AR 119-31); Def.’s Mot. at 6

(AR 131, 441); (2) a caregiver affidavit from plaintiff's mother, Pl.’s Mot. at 7 (AR 241);

Def.’s Mot. at 7 (AR 448); (3) a statement from Ms. Boccia, plaintiff's physical therapist,

Pl.’s Mot. at 7 (AR 240); and (4) additional medical records, Pl.’s Mot. at 7 (AR 244-50).

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However, the TSGLI Appeals Review Panel unanimously denied his appeal, finding that

the “[d]ocuments indicate you were able to compensate for the temporary loss of use of

your right arm by using your unaffected arm to perform most activities within 60 days of

your injury... [and] needed assistance with bathing only at the 60 day milestone.” Pl.’s

Mot. at 7-8 (quoting AR 260-61) (emphasis added); see also Def.’s Mot. at 6 (AR 258-

59).

Following this denial, White appealed his claim to the Army Board for Correction

of Military Records on May 4, 2015. Pl.’s Mot. at 8 (AR 262-66); see also Def.’s Mot. at

6 (AR 262). Again, the Board advised the plaintiff that he did not meet the standard for

establishing additional TSGLI losses past the 60-day mark. Def.’s Mot. at 6 (AR 443);

Pl.’s Mot. at 8 (AR 405-07).

Plaintiff filed his initial complaint in this Court on December 23, 2016, seeking

judicial review of the Board’s denial of benefits. See Compl. § 1 [Dkt. #1]. This case was

subsequently stayed while the ABCMR undertook a voluntary remand and reconsideration

of its decision. See 3/16/17 Minute Order Granting in Part Def.’s Mot. to Remand & Stay.

On remand, the Board decided, on September 12, 2017, to award a second increment of

$25,000, reflecting a loss of two ADLs for 60 days post-injury, but declined to award a

third increment for loss up to the fully claimed period of 90 days.' Def.’s Mot. at 7 (AR

' The Board appears to have miscalculated May 2, 2012 as 60-days post-traumatic event

and June 2, 2012 as 90-days post-traumatic event. AR 442. The correct dates are May 1,

2012 (60-days post-traumatic event) and May 31, 2012 (90-days post-traumatic event).

This miscalculation, however, is irrelevant to plaintiff's 90-day ADL loss claim because,

as explained below, the Board concluded that plaintiff was independent in his ADLs well

before the 90-day mark.

433); Pl.’s Mot. at 9-10 (AR 433). In particular, the Board found Dr. Hopkins’s statement

and plaintiff's mother’s affidavit conflicted with medical records showing that he was able

to perform ADLs independently well before the 90-day mark. Def.’s Mot. at 7-8 (AR 447-

449, 452-453).

On October 30, 2017, I granted the parties’ joint motion to lift the stay in this case,

and I also granted plaintiff leave to file his first amended complaint. See 10/30/17 Minute

Order. Plaintiff filed his first amended complaint later that same day, seeking reversal of

the Board’s denial of his 90-day ADL loss claim. See First Am. Compl. I issued an Order

to Show Cause for lack of prosecution under Local Rule 83.23 on December 11, 2017. See

Order to Show Cause [Dkt. # 16]. Plaintiff responded the next day and requested a

dispositive-motion briefing schedule. See Pl.’s Response to Order to Show Cause [Dkt. #

17]. Pursuant to the briefing schedule, the parties filed their cross-motions for summary

judgment on January 15, 2018, Pl.’s Mot. [Dkt. # 18], and February 15, 2018, Def.’s Mot.

[Dkt. # 19], respectively, seeking judicial review of the Board’s decision under the APA.

Il. Statutory Scheme

The TSGLI program provides insurance benefits to servicemembers who “sustain[]

a traumatic injury ... that results in a qualifying loss.” 38 U.S.C. § 1980A(a)(1). A

servicemember may demonstrate a “qualifying loss” under the statute by demonstrating

that his injury resulted in an “inability to independently perform two or more of the

following six functions: (i) Bathing (11) Continence (iii) Dressing (iv) Eating (v) Toileting

[and] (vi) Transferring [in or out of a bed or chair].” See id. § 1980A(b)(2)(D) (emphasis

added). Congress authorized the Department of Veterans Affairs to carry out the program

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with the assistance of the Department of Defense and a private insurer, the Office of

Servicemembers’ Group Life Insurance (““OSGLI”), Def.’s Mot. at 3, and to prescribe the

terms of coverage by regulation. See id. § 1980(A)(b)(1), (3). The Department of Veterans

Affairs subsequently passed regulations expanding the range of statutorily covered losses

to award between $25,000 and $100,000 for a “[t]raumatic injury, other than traumatic

brain injury, resulting in inability to perform at least 2 Activities of Daily Living (ADL),”

that falls into at least one category of “scheduled loss.” 38 C.F.R. § 9.20(f)(20). To assist

in implementing the program, the VA has also published a Traumatic Injury Protection

Under Servicemembers’ Group Life Insurance (TSGLI): A Procedural Guide (hereinafter

“Procedures Guide”’) that the agency uses to determine eligibility under the program. See

Def.’s Mot. Ex. 1, October 1, 2016 Procedures Guide (version 2.38).?

ANALYSIS

I. Standard of Review

““Summary judgment is an appropriate procedure for resolving a challenge to a

federal agency's administrative decision when review is based upon the administrative

record,’” as it is here. Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (quoting

Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)). In such cases, the

district court “sits as an appellate tribunal” and ‘“‘the entire case ... is a question of law.”

Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (quotations omitted).

Courts will thus defer to the agency’s “findings of fact if they are supported by substantial

* This was the version in place at the time of the Board’s denial of plaintiff's claim for

additional benefits. See Def.’s Mot. at 3 n.2.

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evidence and the [Agency’s] other findings and conclusions if they are not arbitrary,

capricious, an abuse of discretion, or contrary to law.” Montgomery Kone, Inc. v. Sec’y of

Labor, 234 F.3d 720, 722 (D.C. Cir. 2000) (quotations and citation omitted); see also 5

U.S.C. § 706(2)(A).

As such, a court must generally defer to an agency’s reasonable interpretation of the

facts even if another interpretation would be plausible on the court’s own review of the

record. See Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010)

(“When reviewing for substantial evidence [the Court] does not ask whether record

evidence could support the petitioner’s view of the issue, but whether it supports the

[agency’s] ultimate decision.’’) (citation omitted); Rossello ex rel. Rossello v. Astrue, 529

F.3d 1181, 1185 (D.C. Cir. 2008) (“Substantial-evidence review is highly deferential to the

agency fact-finder, requiring only ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’”) (quoting Pierce v. Underwood, 487 US.

552, 565 (1988)).°

The parties dispute the appropriate level of deference to a military board evaluating

TSGLI benefits. Defendant argues that even greater deference is owed to the decisions of

3-“The arbitrary and capricious standard of § 706(2)(A) is a ‘catchall’ that generally

subsumes the ‘substantial evidence’ standard of § 706(2)(E).” Schmidt v. Spencer, 319 F.

Supp. 3d 386, 391 n.3 (D.D.C. 2018) (citing Ass'n of Data Processing Serv. Organizations,

Inc. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d 677, 683-84 (D.C. Cir. 1984)

(“When the arbitrary or capricious standard is performing that function of assuring factual

support, there is no substantive difference between what it requires and what would be

required by the substantial evidence test, since it is impossible to conceive of a

‘nonarbitrary’ factual judgment supported only by evidence that is not substantial in the

APA sense ....”); accord Safe Extensions, Inc. v. FAA, 509 F.3d 593, 604 (D.C. Cir. 2007)).

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military boards than is owed to civilian agencies “under an ‘unusually deferential

application of the arbitrary or capricious standard of the APA.’” See Def.’s Mot. at 10

(quoting Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000)). Plaintiff argues that no

such heightened deference applies here. See Pl. Mot. at 12 (citing Jvey v. McHugh, 614

F.App’x 257, 261 (6th Cir. Jun. 5, 2015); Koffarnus v. United States, 175 F. Supp. 3d 769,

775 (W.D. Ky. 2016)). Unfortunately, the answer is not so simple!

Our Circuit usually accords heightened deference when reviewing decisions by

military review boards. See, e.g., Roberts v. United States, 741 F.3d 152, 158 (D.C. Cir,

2014) (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989));

Schmidt, 319 F. Supp. 3d at 391; Chamness v. McHugh, 814 F. Supp. 2d 7, 13 (D.D.C.

2011); Escobedo v. Green, 602 F. Supp. 2d 244, 248 (D.D.C. 2009). When doing so,

however, it distinguishes between “military judgment requiring military expertise,” which

necessitates the “unusually deferential standard,” and “review of the Board’s application

of a procedural regulation governing its case adjudication process,” which only requires

the typical APA standard. Kreis v. Sec’y of Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005).

When applied to TSGLI benefits, however, courts in this Circuit are split as to whether the

“unusually deferential standard” or the typical APA standard applies. See White v. United

States, No. 17-193 (RMC), 2018 WL 5251740, *8 (D.D.C. Oct. 22, 2018) (Collyer, J.)

(applying the “unusually deferential standard’); Moreno v. Spencer, 310 F. Supp. 3d 83,

87 (D.D.C. 2018) (McFadden, J.) (declining to apply the “unusually deferential standard”).

I need not, however, resolve whether the “unusually deferential standard” applies here

today because the Board’s denial was not even arbitrary and capricious under the less

deferential APA standard.*

I. The Board’s Decision to Deny Plaintiff’s 90-Day ADL Loss Claim Was

Neither Arbitrary and Capricious nor Unreasonable.

Plaintiff argues that the Board’s application of its own rule—the TSGLI Procedures

Guide—was arbitrary and capricious. See Pl.’s Mot. at 14-20. Specifically, plaintiff

argues that because the Procedures Guide lacks the “force of law,” any Board decision that

rests on it does not warrant Chevron deference. See id. at 16-17.° The Government

emphasizes in its reply brief that it is not arguing that the Procedures Guide is entitled to

Chevron deference. See Def.’s Reply at 6. Rather, it merely argues that the Procedures

Guide is “a body of experience and informed judgment to which courts and litigants may

properly resort for guidance,” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), and

should be afforded “considerable weight,” United States v. Mead, 533 U.S. 218, 227-28

(2001). See Def.’s Reply at 6. However, since the Board only relied upon the Procedures

* To the extent plaintiff argues that the Board failed to apply the “benefit of the doubt”

standard, see Pl.’s Reply at 2, plaintiff forfeited this argument by failing to preserve it

below. The Board has twice reviewed plaintiffs claims: once during plaintiffs initial

appeal and once during remand. At neither time did plaintiff raise this “benefit of the

doubt” argument. And, before this Court, the first time plaintiff raised this argument was

in his reply brief. Consequently, I will not consider it. Nat'l Wildlife Fed'n v. EPA, 286

F.3d 554, 562 (D.C. Cir. 2002) (“[T]here is a near absolute bar against raising new issues—

factual or legal—on appeal in the administrative context.”); see also Koffarnus, 175 F.

Supp. 3d at 777 (employing the administrative waiver doctrine against considering the

“benefit of the doubt” argument advanced by the same counsel representing plaintiff);

Blackwood v. United States, 187 F. Supp. 3d 837, 845 (W.D. Ky. 2016) (same).

>I note that, in support of this argument, plaintiff primarily cites to two unpublished out-

of-Circuit opinions. See id.

Guide to evaluate plaintiff's 60-day ADL loss claims, I need not resolve this deference

dispute as it applies to the existing 90-day ADL loss claim because the Board’s denial of

that claim rested on evidence that plaintiff was independent in his ADLs well before the

90-day mark. AR 452-53. As such, it did not rely upon the Procedures Guide’s conceptual

framework of compensatory techniques or adoptive behaviors,

In its evaluation of plaintiff's 90-day ADL loss claim, the Board did indeed mention

evidence concerning compensatory techniques.° But ultimately, it rested its decision on

the fact that subsequent medical evidence from plaintiffs healthcare providers established

that plaintiff was “able to perform ADLs” and was “self-reliant in usual daily activities” —

with no mention of compensatory techniques or adaptive behaviors—prior to the 90-day

mark.. AR 452-53. As such, plaintiff's argument that the Board’s conclusion was arbitrary

and capricious for relying on the Procedures Guide is simply unsupported by the record.

Moreover, the Board’s denial of plaintiffs claim rested on its reasonable

interpretation of the multiple sources of evidence that plaintiff did not suffer a loss of his

two claimed ADLs for 90 consecutive days. See Def.’s Mot. at 12-13 (AR 432-453). How

so?

° Specifically, a medical provider noted on April 30, 2012 that plaintiff was using

“compensatory techniques for computer, shaving, brushing teeth, using fork and spoon,

toilet hygiene, and applying deodorant,” and “a doctor advisor for the TSGLI Appeal

Panel” concluded that plaintiff's injuries would not cause him a loss in ADLs that plaintiff

could not overcome “by adoptive behavior ... much beyond the 30-day milestone.” AR

452. Neither piece of evidence establishes that plaintiff still required use of adaptive

techniques in relation to his two claimed ADLs on or after the 90-day mark.

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The Board relied on evidence from plaintiff's caretakers, who had direct observation

of plaintiffs ability to perform his usual ADLs. The Board considered notes from an

occupational therapy assistant on April 30, 2012, who recorded that plaintiff stated he had

various levels of difficulty bathing, manipulating buttons and/or zippers, and tying his

shoes, but not that he was unable to perform these ADLs. AR 452; see also 38 U.S.C. §

1980A(b)(2) (requiring an “inability” to perform the ADL to obtain TSGLI benefits, not

merely difficulty in performing the ADL). In addition, notes from another medical

provider stated that plaintiff was “self-reliant in usual daily activities” on April 24, 2012

(i.e. 53 days after plaintiff's injury) and on May 7, 2012. AR 453; see also AR 189, 199.

The Board also considered direct observations from a medical doctor from May 14, 2012,

who concluded that there were “‘no activities patient not able to perform ADLs to” and that

plaintiff was “able to perform ADLs.” AR 452-53. This evidence all pre-dated the 90-day

mark and indicates that plaintiff—although having some noted difficulty—was able to

perform his two claimed ADLs independently.

The Board considered, but rejected, the evidence plaintiff proffered in support of

his claim, including two medical certifications, a letter from plaintiffs occupational

therapist, and an affidavit from his mother. Concerning the May 1, 2014 medical

certification from Dr. Hopkins, the Board noted that Dr. Hopkins did not personally

observe plaintiff, and his opinion certifying plaintiffs inability to perform ADLs was based

on a post hoc review of his medical records. AR 131, 447, 448, 453. Further, it concluded

that Dr. Hopkins’s statements that plaintiff was unable to bath or dress independently from

May 2, 2012 to June 8, 2012 were inconsistent with the record. AR 447-48. The Board

1]

reasonably concluded that the numerous direct observations recorded by plaintiff's

healthcare providers contradicted and thus outweighed Dr. Hopkins’s post hoc review of

plaintiff's medical records. AR 453.

As for an earlier medical certification from Dr. Susskind, which noted an ongoing

loss of plaintiff's ability to bathe and dress independently as of April 25, 2012, AR 40, the

Board noted that Dr. Susskind “had not observed the patient’s loss but reviewed the

patient’s medical records to make these statements.” AR 447. It pointed out that those

same medical records from March 21, 2012 indicated that plaintiff could carry out most

ADL tasks, albeit with pain and compensation, and that plaintiff was released without

limitation. Jd. The Board’s rejection of Dr. Susskind’s certification was reasonable

because subsequent medical records from direct observation indicated that any ongoing

loss that Dr. Susskind believed existed on April 25, 2012, was resolved prior to the 90-day

mark.

In addition, with respect to the letter from plaintiff's occupational therapist, the

Board evaluated the therapist’s conclusion that at least two ADLs were impaired for at least

60 days in the Board’s evaluation of plaintiff's 60-day ADL loss claim. AR 451. But that

evidence, of course, does not establish that plaintiff suffered such losses on or after the 90-

day mark, and the Board was reasonable when it concluded that the plaintiff overcame any

losses before the 90-day mark.

As far as plaintiff's mother’s affidavit, some of his mother’s statements actually

undercut his request. Specifically, his mother stated that her son could have completed

ADLs as early as May 5, 2012, substantially short of the 90-day period. AR 375. In support

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of her son’s claim, plaintiff's mother also stated that plaintiff attended occupational therapy

until about August 6, 2012, and that she drove him to and from his therapy between March

and June 2012. Jd. Indeed, she stated that plaintiff continued to have pain in his elbow

and arm after his first round of therapy, which required additional therapy that ended in

February 2014. Jd. However, this affidavit contains no evidence that plaintiff was unable

to perform his two claimed ADLs—bathing and dressing—on or after the 90-day mark.

Consequently, the Board’s decision to discount his mother’s affidavit was reasonable.

Finally, White contends that prior case law undermines the Government’s argument

that an injured servicemember who is “‘otherwise healthy” is not rendered ADL incapable

by a single limb trauma. Pl.’s Mot at 19 (citing Koffarnus, 175 F. Supp. 3d at 779). I

disagree. This argument fails for two reasons. First, the Board’s discussion of this point

was in relation to plaintiff's 60-day ADL loss claim, which, again, the Board ultimately

granted. AR 450-52. As discussed above, the Board based its rejection of plaintiff's 90-

day ADL loss claim on the paucity of evidence that plaintiff suffered any ADL loss on or

after the 90-day mark. AR 452-53. Second, in Koffarnus, the Board relied solely on

“generic,” and near verbatim, conclusory statements from one provider, and failed to

include “any analysis or reasoning” for discounting other evidence. Koffarnus, 175 F.

Supp. 3d at 779; accord Holmes v. United States, No. 17-1674 (JDB), 2019 WL 131955,

*9 (D.D.C. Jan. 8, 2019) (Bates, J.) (distinguishing Koffarnus on similar grounds). Not so

here. The Board analyzed the evidence both in support of, and in opposition to, White’s

claims and articulated the basis for each of its conclusions.

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In the final analysis, White has raised no argument, unfortunately, that demonstrates

that the Board acted arbitrarily and capriciously when it denied plaintiff's 90-day ADL loss

claim, nor any argument demonstrating the Board’s analysis of the record was anything

but reasonable. As such, deference must be accorded to the Board’s decision, and I decline

to overturn it.’

CONCLUSION

For all of the foregoing reasons, defendant’s Motion for Summary Judgment [Dkt.

#19] is GRANTED and plaintiff’s Cross-Motion for Summary Judgment [Dkt. #18] is

DENIED. An order consistent with this decision accompanies this Memorandum Opinion.

| con

(

RICHARD ISERON

United States District Judge

7 Because I am denying plaintiffs motion, I need not reach the Government’s argument

that the Court cannot grant the relief requested by plaintiff. Def.’s Mot. at 19-20.

14