The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRADY GRANHEIM,
Plaintiff,
Vv.
Civil Case No. 21-1284 (RJL)
UNITED STATES OF AMERICA,
New Nee Nee Nee eee eee “nee eee eee”
Defendant.
MEMO DUM OPINION
(November/S$~, 2023) [Dkt. ## 16, 17]
Brady Granheim, a former member of the Army National Guard, suffered multiple
facial fractures in a violent home invasion. He applied for short-term benefits through the
Traumatic Servicemembers’ Group Life Insurance (““TSGLI’) program but was denied by
the Army. Although he was no doubt the victim in a terrible tragedy, the Army did not act
arbitrarily or capriciously in deciding that his injuries did not entitle him to relief under the
program’s narrow schedule of qualifying losses. Accordingly, the Court will DENY
Granheim’s motion for summary judgment and GRANT the Government’s cross-motion.
BACKGROUND
I. Legal Background
The TSGLI program provides short-term financial assistance to servicemembers
and veterans (collectively, “servicemembers”’) who are enrolled in the Servicemembers’
Group Life Insurance program and who have suffered traumatic injuries. Barker v. United
States, 404 F. Supp. 3d 251, 254 (D.D.C. 2019) (Sullivan, J.). To receive benefits under
the program, an enrolled servicemember must show that a traumatic injury resulted in a
qualifying loss. 38 U.S.C. § 1980A(a)(1). Qualifying losses are prescribed in a schedule
issued by the Secretary of Veterans Affairs in a regulation. Jd. § 1980A(b)(1).
In the schedule applicable here, one qualifying loss is the inability to carry out
activities of daily living (“ADLs”)—that is, the inability to independently perform at least
two of the six following functions: bathing, continence, dressing, eating, toileting, and
transferring in or out of a bed or chair with or without equipment. 38 C.F.R.
§ 9.20(e)(6)(vi) (2015).! Benefits become available only if the inability lasts for certain
minimum durations. For an inability resulting from a traumatic brain injury, the
servicemember is entitled to a lump sum of $25,000 after fifteen consecutive days of
inability, plus another $25,000 after thirty consecutive days of inability. Id. § 9.20(f)(17).”
I. Factual Background
Late on November 10, 2010, Granheim was the victim of a violent home invasion
in Cloquet, Minnesota, in which he was hit or kicked in the head multiple times. A.R. at
18, 46. After the attack, he was taken to the emergency room at a nearby hospital. Jd. at
46, 90. While there, he vomited, so the staff decided to intubate him for “airway
protection.” Jd. at 47-48. He was then referred to a hospital in Duluth for treatment of
facial fractures. Jd. at 46. At the Duluth hospital, it was noted in the morning that “[h]je
' Granheim applied for benefits in August 2014, shortly after the Secretary made amendments to
the schedule that became codified in the 2015 version of the Code of Federal Regulations. See
Servicemembers’ Group Life Insurance, 79 Fed. Reg. 44,297 (July 31, 2014) (to be codified at 38 C.F.R.
pt. 9). In March 2023, the schedule was moved to a new section of the Code; the specific qualifying loss
at issue here did not substantively change. See Servicemembers’ Group Life Insurance Traumatic Injury
Protection Program, 88 Fed. Reg. 15,907, 15,914—-15 (Mar. 15, 2023) (to be codified at 38 C.F.R. pt. 9).
? Additional lump sums of $25,000 are also available after sixty and ninety consecutive days of
inability, 38 C.F.R. § 9.20(f)(17) (2015), but those two durational thresholds are not at issue here.
had quite a bit of alcohol last night.” Jd. He remained at the hospital for a week,
undergoing reparative facial surgery on November 16. /d. at 37. He was discharged the
next day with a principal diagnosis of assault and secondary diagnoses of respiratory failure
secondary to trauma, acute ethanol intoxication, and multiple facial fractures. Jd.
After being discharged, Granheim had four follow-up appointments. First, on
November 22, 2010, he had his sutures removed and was reported to be “doing well.” Jd.
at 120. Then, on November 30, he was seen by the ophthalmologist who saw him during
his hospitalization. Jd. at 35. The ophthalmologist reported no evidence of recent
photopsia, retinal breaks, or posterior vitreous detachment, although some swelling and
scar tissue did limit the examination. Jd. Next, on December 1, Granheim met with his
reconstructive surgeon, who noted that Granheim had some cloudy vision but “no
particular complaints.” Jd. at 119. Finally, on December 3, Granheim visited an
ophthalmologist on an emergency basis with complaints of worsening peripheral vision,
flashing lights in his vision, and a bad headache. Jd. at 33. He underwent CT imaging,
which revealed “persistent debris and hemorrhage in the left maxillary sinus” and a
“[s]mall amount of debris or hemorrhage within the floor of the right maxillary sinus with
unchanged mildly depressed anterior wall right maxillary sinus fracture.” Id. at 76.
III. Procedural History
Almost four years later, in August 2014, Granheim applied for TSGLI benefits. Jd.
at 1-15. He claimed that he suffered a traumatic brain injury that resulted in the inability
to perform ADLs for at least thirty consecutive days and, consistent with the schedule of
qualifying losses discussed above, was thus entitled to $50,000. Jd. at 10, 14-15. Attached
to his application were declarations from himself, his wife, and his father, signed just before
he submitted his application. Jd. at 18-25. They each reported that, after he was discharged
from the hospital and until at least December 12, 2010, Granheim experienced significant
pain, dizziness, and imbalance and required assistance with bathing, dressing, toileting, and
transferring. Jd. Also attached to his application was a report from a registered nurse, who,
after reviewing those declarations and Granheim’s medical records, opined that Granheim
suffered a traumatic brain injury and was thereby unable to perform ADLs. /d. at 27-28.
His claim was denied by the Office of Servicemembers’ Group Life Insurance,
because his medical documentation did not support his claim that he was unable to perform
ADLs for at least fifteen consecutive days. Jd. at 137-39. Granheim requested
reconsideration, id. at 140-43, and his claim was again denied, id. at 328-31. Granheim
then appealed the denial to the U.S. Army Human Resources Command. /d. at 332. He
supplemented his appeal with a statement from another registered nurse, who, after
reviewing the medical records and declarations, also opined that Granheim was unable to
perform ADLs for at least thirty consecutive days. Jd. at 342-43. Granheim’s appeal was
denied for similar reasons as his original claim: the record did not support his claim that he
was unable to perform ADLs in at least a modified independent manner for at least fifteen
consecutive days. Jd. at 680-81.
That denial left one final administrative step for Granheim: an appeal to the Army
Board for Correction of Military Records. Jd. at 680, 749-50. Before rendering a decision,
the Board received two additional medical opinions based on reviews of the record. First,
an Army Review Boards Agency medical advisor agreed with the prior administrative
decisions that Granheim’s medical documentation did not support his claimed inability to
perform ADLs. Jd. at 1151-52. Then, Granheim submitted a responsive submission from
a doctor opining that the exact opposite was true. Jd. at 1156-63. In a relatively short
opinion, the Board agreed with the former, finding insufficient evidence to support
Granheim’s claim to benefits. Jd. at 1164-73.
With the agency’s decision final, Granheim filed this lawsuit challenging the denial.
Compl. [Dkt. #1] 4] 3-6. Without admitting error, the Government moved to remand for
the Board to reconsider its denial of Granheim’s claim in light of the allegations in his
complaint. Consent Mot. for Voluntary Remand and Stay of Proceedings [Dkt. #7]. The
Court granted that motion. Order (July 12, 2021) [Dkt. #8]. On remand, the Board received
yet another opinion from the Army Review Boards Agency medical advisor, who again
thought there was insufficient evidence of Granheim’s inability to perform ADLs for at
least fifteen consecutive days. A.R. at 1205-10. Ina more thorough opinion than its first,
the Board again concluded that Granheim was not entitled to TSGLI relief, for the reasons
detailed below. /d. at 1211-34.
The parties then each moved for summary judgment. Those motions were fully
briefed and are now ripe. Pl.’s Mot. for Summ. J. [Dkt. #16]; Pl.’s Mem. of Points and
Authorities in Supp. of Mot. (“Granheim Mot.”) [Dkt. #16-1]; Def.’s Cross-Mot. for
Summ. J. [Dkt. #17]; Mem. of Law in Supp. of Cross-Mot. and Opp’n to P1.’s Mot. (“Gov’t
Mot.”) [Dkt. #17-1]; Pl.’s Opp’n to Def.’s Cross-Mot. and Reply to Def.’s Opp’n [Dkt.
#19]; Def.’s Reply in Supp. of Cross-Mot. [Dkt. #21].
LEGAL STANDARD
Although the parties have moved for summary judgment, the typical legal standard
under Federal Rule 56 does not apply where, as here, the Court is reviewing an
administrative decision. Barker, 404 F. Supp. 3d at 260. In reviewing that decision, “the
function of the district court is to determine whether or not as a matter of law the evidence
in the administrative record permitted the agency to make the decision it did.” Rich v.
United States, 369 F. Supp. 3d 263, 273 (D.D.C. 2019) (Hogan, J.) (quoting Sierra Club v.
Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (Bates, J.)). “Summary judgment thus
serves as the mechanism for deciding, as a matter of law, whether the agency action is
supported by the administrative record and otherwise consistent with the APA standard of
review.” Barker, 404 F. Supp. 3d at 260 (quoting Wilhelmus v. Geren, 796 F. Supp. 2d
157, 160 (D.D.C. 2011) (Boasberg, J.)).
Under the APA, the Court shall set aside agency action that is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Under the arbitrary and capricious standard of review, the Court will uphold an agency
action so long as “the agency examines the relevant facts and articulates a satisfactory
explanation for its decision including a ‘rational connection between the facts found and
the choice made.’” Barker, 404 F. Supp. 3d at 260-61 (quoting Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). That standard is
deferential, but the Court still must ensure that the agency engaged in reasoned decision
making. Jd. at 261.
DISCUSSION
In denying Granheim TSGLI benefits, the Board reached two primary conclusions:
(1) that he did not suffer a traumatic brain injury and (2) that he was not unable to perform
ADLs for at least fifteen consecutive days after his injury. Neither conclusion was arbitrary
or capricious.
I. Traumatic Brain Injury
The Board’s conclusion that Granheim did not suffer a traumatic brain injury was
not arbitrary or capricious. Central to its decision was the fact that Granheim’s hospital
discharge summary did not mention a traumatic brain injury, “a well-recognized diagnosis
within the medical community” at the time. A.R. at 1228. In other words, had he suffered
a traumatic brain injury, the discharge summary “surely would have mentioned” it. Jd.;
Gov’t Mot. at 15. The Board gave greater weight to that record than to the medical opinions
submitted on Granheim’s behalf regarding his pain, dizziness, and imbalance, because
those opinions relied primarily on his and his family’s declarations provided years after the
fact. A.R. at 1215, 1217, 1228. It was entitled to weigh the evidence that way. Hayes v.
United States, 2022 WL 2817598, at *7 (D.D.C. July 19, 2022) (Boasberg, J.).
Granheim has two disagreements with the Board’s reading of the medical
documentation, both of which are nonstarters. First, he claims that the Board failed to
consider the medical records from his emergency ophthalmologist visit on December 3,
2010. Granheim Mot. at 16-17. Even assuming he is correct notwithstanding the Board’s
review of “all supporting documents,” A.R. at 1227, that visit was for worsening vision
and a headache; a traumatic brain injury is never mentioned, id. at 33-34. The Board need
only “examine[] the relevant facts,” and it did just that. Barker, 404 F. Supp. 3d at 261
(emphasis added).
Second, Granheim faults the Board for referring to the Army Review Boards
Agency medical advisor’s opinion that Granheim was initially intubated because of
alcohol-induced vomiting, not because of a suspected closed head injury. Granheim Mot.
at 14-16; see A.R. at 1220. It is true that the medical records say only that Granheim was
intubated for “airway protection” after vomiting in the emergency room—without saying
what caused the vomiting. A.R. at 47-48. But the Board did not rely on the medical
advisor’s intoxication opinion in concluding that Granheim did not have a traumatic brain
injury. It merely summarized that opinion in a background “Medical Review” section; the
opinion gets no mention in the “Board Discussion” section. A.R. at 1218-20, 1227-29.
Granheim’s argument, then, fights a straw man.
II. _—‘ Inability to Perform ADLs
The Board’s second conclusion, that Granheim was not unable to perform ADLs,
was also not arbitrary or capricious. It again agreed with the Army Review Boards Agency
medical advisor, who noted the lack of any medical documentation on Granheim’s inability
to perform ADLs and inferred therefrom that Granheim could perform ADLs in at least a
modified independent manner within fifteen days of his hospitalization. A.R. at 1229. As
further support, Granheim at the time “was in his mid-twenties, was a physically fit Soldier,
and had full use of his legs and arms.” /d. at 1228. A “rational connection” between those
facts and the Board’s conclusion exists, Barker, 404 F. Supp. 3d at 261, and Granheim
concedes as much, Granheim Mot. at 18 (‘‘[T]hese assumptions [are] reasonable.”’).
What Granheim disagrees with is the Board’s treatment of his and his family’s
declarations that he required assistance with certain ADLs after his hospitalization. Jd. at
18-19. The Board expressly gave greater weight to the medical advisor’s opinion, which
relied on medical records from Granheim’s hospitalization, than to the “post-hoc”
declarations given four years after the fact. A.R. at 1228-29. Granheim calls that an error.
In fact, he says, his family’s declarations are dispositive in his favor on the issue of his
inability because of the lack of affirmative evidence that he could perform ADLs.
Granheim Mot. at 18-19. He points to Fail v. United States, in which the court found
dispositive a statement from a TSGLI claimant’s wife that she had to assist him with certain
ADLs, which went unrebutted by the mostly illegible handwritten doctor’s notes that made
up his medical record. 2013 WL 5418169, at *13 (D. Colo. Sept. 27, 2013). But that case
is factually distinguishable from this one. The medical records here are more extensive,
comprehendible, and detailed, yet they still do not mention that Granheim was unable to
perform ADLs. Plus, there is “contrary evidence in the contemporaneous medical records”
showing Granheim’s ability to performs ADLs. Cloud v. United States, 2019 WL 1924363,
at *7 (D.D.C. Apr. 30, 2019) (Kelly, J.) (distinguishing Fai/ on that basis). As the medical
advisor and the Board observed, Granheim’s discharge summary states that, during his
hospitalization, “he was up independently voiding without difficulty.” A.R. at 38, 1220.
Because the Board was “entitled to give greater weight to contemporaneous medical
records than after-the-fact statements,” Hayes, 2022 WL 2817598, at *7 (quoting Cloud,
2019 WL 1924363, at *7), its conclusion was not arbitrary or capricious.
CONCLUSION
For the foregoing reasons, Granheim’s motion for summary judgment will be
DENIED, and the Government’s cross-motion for summary judgment will be GRANTED.
An order consistent with this decision accompanies this Memorandum Opinion.
cbrerd Assn]
RICHARD J. LEON
United States District Judge
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