Petition for Writ of Certiorari — Dawn Moore, Petitioner v. United States

App. 1

United States Court of Appeals

for the Fifth Circuit

No. 21-40661

Dawn Moore,

Plaintiff—Appellant,

versus

United States of America,

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:18-CV-102

(Filed Jan. 10, 2022)

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:

IT IS ORDERED that Appellee’s opposed motion

for summary affirmance is GRANTED. IT IS FUR­

THER ORDERED that Appellee’s alternative motion

for an extension of thirty (30) days to file its brief is

DEEMED MOOT

App. 2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

DAWN M. MOORE,

Plaintiff,

v.

UNITED STATES OF

AMERICA,

Defendant.

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CIVIL ACTION NO.

5:18-CV-00102-RWS

ORDER

(Filed Jul. 21, 2021)

Before the Court is Plaintiff Dawn M. Moore’s

(“Plaintiff” or “Moore”) Motion for Summary Judg­

ment (Docket No. 16) and Defendant United States’s

Cross-Motion for Summary Judgment and Response in

Opposition to Plaintiff’s Motion for Summary Judg­

ment (Docket No. 19). Moore filed an amended re­

sponse to the United States’s motion (Docket No. 21),

and the United States filed a reply (Docket No. 22). Af­

ter review and consideration of the motions and the

parties’ arguments, the United States’s motion is

GRANTED and Moore’s motion is DENIED.

BACKGROUND

I.

Moore’s Army Service

Moore served in the U.S. Army as a tracked vehi­

cle mechanic from March 1996 until July 2007.

App. 3

Administrative Record (“AR”) at 396-398, 489.1 Moore

was a Staff Sergeant (E-6) at the time of her separa­

tion. Id. at 396-398. In February 2016, Moore filed two

separate applications for Servicemembers’ Group Life

Insurance Traumatic Injury Protection (“TSGLI”) ben­

efits for injuries she incurred in May 2003 and October

2004. Id. at 188-200, 248-260.

II.

Moore’s First TSGLI Application

Moore’s first application was for a right knee in­

jury she incurred on May 21, 2003, while attending

the Army’s Basic Non-Commissioned Officer Course

(“BNCOC”). Id. at 189. According to Moore, while play­

ing Frisbee football during physical training, she

jumped in the air for the Frisbee and, upon landing,

“felt a sharp pain shooting in [her] knee.” Id. Moore

went to the local medical clinic but they “could not tell

what the damage was.” Id. Moore was placed on

crutches and released. Id. Because Moore still had a

field exercise to complete, the Commandant of the

course wanted to send her home early. Id. Yet after

“pleading [her] case,” Moore was allowed to attend the

field exercise on crutches and eventually graduated

from the course. Id.; see also id. at 441 (Moore’s

BNCOC evaluation report noting that the course

lasted until June 17, 2003, and that Moore “achieved

course standards”).

1 Citations to the Administrative Record (Docket Nos. 15,

15-1, 15-2) use the Bates numbers on the bottom right-hand cor­

ner of each page (000001-000513).

App. 4

According to Moore, her sister flew to meet her in

Aberdeen, Maryland, and drove her back to her perma­

nent duty station at Fort Hood, Texas. Id. at 189. Once

back at Fort Hood, Moore went to the orthopedic clinic

at the Army Community Hospital for reevaluation,

where “[i]t was determined that [Moore] had torn [her]

meniscus.” Id. Moore was sent for physical therapy for

eight weeks before having surgery. Id. Following her

surgery, she was “placed on 30 days [of] convalescent

leave,” during which time her father came from South

Carolina to “take care of [her] and [her] children.” Id.

Moore claims that her father “did everything that

needed to be done around the house,” including

“cook[ing], cleaning], running] [her] bath, tak[ing]

[her] to appointments, [and] shop[ping].” Id. Moore

claims that her daughter would help her with dressing

“when needed.” Id. When Moore returned to work, she

was placed on physical training restrictions for an ad­

ditional four weeks, along with physical therapy twice

a week, as she “eased [her] way back into walking with­

out a crutch,” moving from “fast pace[d] walking, into

slow[ly] jogtging], then running at [her] own pace.” Id.

In her first application, dated February 10, 2016,

Moore alleged the inability to bathe and dress inde­

pendently from May 21, 2003, to September 24, 2003

(over 120 days). Id. at 198. In support of her applica­

tion, Moore submitted portions of her medical records.

Id. at 201-217. Her application was signed by a medi­

cal professional on February 29, 2016, attesting that

he reviewed Moore’s medical records but did not ob­

serve her purported loss. Id. at 200.

App. 5

III. Moore’s Second TSGLI Application

Moore’s second TSGLI application, also submitted

on February 10, 2016, was for another right knee in­

jury she incurred the following year on October 7,

2004, while playing basketball at a military base in

Iraq. Id. at 249. According to Moore, she went up for a

rebound and when she landed, she heard a “pop” and

felt a “shooting pain from [her] knee up her thigh.” Id.

Moore claims that her knee was “swollen immediately,”

and that she was taken to receive medical care but was

told that “[her] knee was too swollen and [she] was in

too much pain to [be] fully examine[d].” Id. Moore was

given crutches to move around “until the s[w]elling

went down enough to [be] examine[d].” Id. After

roughly a week, Moore went back for a follow-up exam­

ination, at which point she was told that her “ACL was

torn ’'Id.

According to Moore, she was medically evacuated

to Germany on October 13, 2004, then back to her duty

station at Fort Hood, Texas. Id. She went to the ortho­

pedic clinic where “it was confirmed that [she] had no

ACL visible.” Id. Moore had to “wait for the remaining

swelling to go down and do physical therapy before [re­

ceiving] surgery.” Id. On December 20, 2004, a “graft

was taken from [Moore’s] left knee to repair the ACL

in [her] right knee.” Id. Following the procedure, Moore

was “placed on [thirty] days [of] convalescent leave

with crutches,” during which time her father came

from South Carolina to help “t[ak]e care of [her] and

[her] children.” Id. Moore claims that her father “did

everything that needed to be done around the house,”

App. 6

including “cooking, cleaning, taking [her] to appoint­

ments, [and] fixing [her] bath water.” Id. As well, Moore

claims that her daughter would “help dress [] her.” Id.

Moore was given an additional two weeks of leave due

to swelling and she “continued physical therapy for

months.” Id. Once Moore returned to work, she “was

never able to run again [and] even fast pace[d] walking

hurt.” Id.

In this second application, Moore alleged the ina­

bility to bathe, dress, toilet and transfer independently

from October 7, 2004, to February 13, 2005 (over 120

days). Id. at 258-259. In support of her application,

Moore submitted portions of her medical records. Id. at

276-302. Her application was signed by a medical pro­

fessional, attesting that he reviewed Moore’s medical

records but did not observe her purported loss. Id. at

260.

IV.

The U.S. Army TSGLI Office Denies Moore’s

Applications for Benefits

On March 14, 2016, the U.S. Army TSGLI Office

informed Moore that she was ineligible for TSGLI

benefits because her claimed loss was not a direct re­

sult of a qualifying traumatic event. Id. at 261-262. On

April 8, 2016, Moore submitted a revised application

with additional medical documentation, id. at 220241, which was denied on July 7, 2016. Id. at 245-247.

In the decision letter, the Chief of the TSGLI Special

Compensation Branch explained to Moore that “[t]he

supporting documents submitted with [her] claim

App. 7

indicate [d] that [her] losses were a result of multiple

nontraumatic knee injuries, which does not meet the

definition of traumatic event resulting in a traumatic

injury under the TSGLI Program.” Id. at 322. Explain­

ing further, the Chief cited documentation provided

with Moore’s claim that “indicate [d] [Moore] [was] be­

ing seen for right knee pain and intermittent swelling

for the last [seven] years, that [her] symptoms started

when [she] twisted her knee in basic training, and that

[her] symptoms were made worse with running and

jumping.” Id. Accordingly, “[t]here was no evidence

that [Moore’s] claimed losses were the result of a single

qualifying traumatic event.” Id.

V.

Moore’s Reconsideration Request

On February 15, 2017, Moore requested reconsid­

eration of her denied applications for benefits and of­

fered four letters from various family members to

demonstrate her need for assistance with “activities of

daily living” (“ADLs”). Id. at 325-329. All four letters

have the same date and contain the following identical

language regarding Moore’s purported limitations:

[Moore] needed hands on assistance getting

in and out the tub, drying off, and putting on

lotion, hands on assistance getting dress

(standing/sitting putting on and taking off

clothes, socks, and shoes), assistance sitting

down and standing up from the toilet, and

she could not drive so she needed to be taken

everywhere she was on crutches for months.

App. 8

See id. at 326-329. All four letters state that these pur­

ported limitations existed “during [Moore’s] meniscal

(May 21, 2003) and ACL (October 7, 2004) injuries and

surgeries” but provide no further details regarding

specific dates. Id. All four letters state that Moore’s fa­

ther was one of her “caregivers” following her two inju­

ries, but that he passed away from cancer and was

therefore unavailable to provide a statement. Id.

On August 16, 2017, Moore’s reconsideration re­

quest was denied. Id. at 369-371. In the decision letter,

the Chief of the TSGLI Special Compensation Branch

explained to Moore that “[t]he supporting documents

submitted with [her] claim indicate [d] that [her] losses

were a result of twisting [her] knee, which does not

meet the definition of traumatic event resulting in a

traumatic injury under the TSGLI Program.” Id. at

369. The Chief cited documentation provided with

Moore’s claim that “state[d] [Moore] sustained a ‘[n]oncontact twisting valgus injury.’” Id. Because “[t]here

was no evidence that there was an external force or violence[,] [Moore] did not meet involuntarily with an ob­

ject or entity, and [her] injury was not caused by a

physical impact upon [her],” Moore’s “claimed losses

were [not] the result of a qualifying traumatic event.”

Id.

VI. Moore’s Suit in This Court

On August 15, 2018, Moore filed suit in this Court

challenging the denial of her TSGLI claims. See Docket

No. 1. Although the suit was timely filed and no further

App. 9

administrative exhaustion was necessary, the parties

jointly agreed to stay this suit so that Moore could pur­

sue further administrative remedies with the Army

Board for Correction of Military Records (“ABCMR” or

the “Board”). See Docket No. 6. The Court granted the

stay Docket No. 7. Following issuance of the stay,

Moore filed an application with the ABCMR. AR at

108-165.

VII.

The ABCMR’s Opinion

After considering Moore’s application and all un­

derlying documents contained in the administrative

record, the ABCMR unanimously voted to deny

Moore’s request for relief and issued an opinion detail­

ing the same. Id. at 3-14. The ABCMR focused exclu­

sively on Moore’s failure to demonstrate the inability

to perform at least two ADLs for at least thirty consec­

utive days, as required. Id. at 8-9. Prior to issuing its

decision, however, the Board sought and received two

advisory opinions from subject matter experts.

The first opinion was from the Chief of the Special

Compensation Branch. Id. at 97-107. In formulating

its opinion, the Special Compensation Branch re­

viewed the history of Moore’s TSGLI claims. Id. at 98.

It then reviewed and interpreted all relevant medical

documents related to her claims. See id. at 100-101,

104-105. Finally, it summarized the significant events

surrounding the claims, see id. at 99,103, and provided

an opinion tied to the evidence. Id. at 101,105-106.

App. 10

As it relates to Moore’s first claim, the Special

Compensation Branch found that “the medical record

does not support the 30 consecutive day milestone of

basic ADL loss.” Id. at 101. It found “little definitive

objective data presented supporting or refuting the

claimed loss.” Id. It specifically considered the state­

ments by Moore’s family members and found that they

conveyed “no definitive ADL assistance.” Id. Likewise,

it found that “all things her father helped with would

be Instrumental Activities of Daily Living (IADLs) . . .

things like cooking, cleaning, running errands or run­

ning kids to school, and other things like banking.” Id.

at 101—102. It also considered Moore’s claim regarding

her daughter’s assistance, and explained:

[Moore] stated that her daughter would help

her dress when needed. This would [have]

only been one ADL and does not appear it

was a continuous [] need. However, ADL assis­

tance is not the standard for TSGLI payment.

The standard is that the ADL assistance must

have been rendered because without such as­

sistance the Soldier could not have performed

ADLs in even a modified independent manner.

According to her statements there w[as] no

consistent ADL assistance rendered besides

the IADL’s which are not part of TSGLI stan­

dard for payment.

Id. at 102.

The Special Compensation Branch found it “im­

portant to note that [Moore] was able to complete the

BNCOC training on crutches.” Id. “This included

App. 11

toileting and transferring herself while at BNCOC.” Id.

It noted that “[t]hese same ADL’s could be easily per­

formed with crutches even after [Moore’s] surgery.” Id.

It highlighted a specific entry in Moore’s medical rec­

ords from shortly after her surgery in August 2003

wherein Moore “state [d] she [had] some pain after run­

ning after her child to rescue them from a dog.” Id. It

noted that “[Moore] had fully functioning arms, back,

neck, both hips, and right leg,” citing to the medical

record that “consistently shows functional active

[range of motion] in the right knee during the claimed

ADL loss period.” Id. The Special Compensation

Branch concluded by stating:

Generally, non-weight bearing restrictions in

a single limb are not sufficient to cause that

level of impairment. It is also noted that ac­

tivity descriptions in the personal statements

by the [Plaintiff] are most consistent with

modified independence. Numerous [physical

therapy] notes document active range of mo­

tion. No other medical documentation was

submitted to prove otherwise. There is no evi­

dence of a period of 120 days or greater of con­

tinuous ADL impairment.

Id.

With respect to Moore’s second claim, the Special

Compensation Branch reached similar findings. In

summary, it stated:

This is not a new event for [Moore] as she had

suffered a very similar injury during a Frisbee

football game. She has had several issues with

App. 12

the right ACL tear in the past but was always

[been] mobile on crutches. She attended phys­

ical therapy (PT) which frequently reported

pain 1-3 [out of] 10. On her PT notes it was

documented she was doing ball squats, lateral

step ups, isolated squats [,] which [] are all in­

dicative of active range of motion and use of

the leg.

Id. at 103.

Accordingly, the Special Compensation Branch

found that “the medical record does not support the 30,

60, 90, or 120 consecutive day milestone of basic ADL

loss rid. at 105. It noted that “[i]f you look at each med­

ical documentation sent in by the [Plaintiff], no one

states there is ADL loss or that she had any trouble

with ADLs.” Id. Specifically, “[Moore] ha[d] active

range of motion at every visit, strength in her quadri­

ceps [was] 5/5 at every visit that it was documented [,]

and she stated in several notes that she was doing

well.” Id. at 105-106. Further, “[Moore] attend[ed] PT

for weeks before and after surgery and she was suc­

ceeding, increasing repetitions and the range of motion

she had.” 7c?. at 106. The Special Compensation Branch

found that “[according to [Moore’s] statements there

w[as] no consistent ADL assistance rendered besides

the IADL’s which are not part of TSGLI standard for

payment.” Id.

The second advisory opinion was from Army Re­

view Board Agency (“ARBA”) Medical Advisor, Colonel

(Col.) Shawn Holmes. Id. at 85-88. Col. Holmes re­

viewed Moore’s TSGLI applications, underlying

App. 13

medical documents available to him and the Special

Compensation Branch’s advisory opinion. Id. at 85-86.

Ultimately, Col. Holmes came to the same conclusion

regarding Moore’s purported ADL limitations. Id. at

87-88. He found that “[b]oth injuries were treated sur­

gically, and there is no documentation to indicate any

significant post-operative complications that would

have rendered [Moore] unable to perform [ADLs] for

more than a continuous 30, 60, 90, or 120 day period of

time.” Id. at 87.

Col. Holmes noted that Moore was allowed to re­

main in BNCOC training and complete the course

following her first injury. Id. This, according to Col.

Holmes, “demonstrates that she did not suffer a quali­

fying loss as defined by the TSGLI Procedural Guide

at the time of her initial reported date of injury.” Id.

And “[a]lthough [Moore] states she received assistance

from other classmates of hers attending the BNCOC

training, there are no statements submitted from these

individuals detailing the type or degree of assistance

provided or the duration of the alleged assistance.” Id.

Similarly, other than Moore’s statements and medical

documents from her flight out of Iraq, “there is no other

medical documentation to support [Moore’s] state­

ments that she was unable to independently perform

ADL’s . . . following the second injury or second sur­

gery.” Id. at 87-88.

After receiving' both advisory opinions, the

ABCMR reviewed all documents in the administrative

record and unanimously voted to deny Moore’s request

for relief. Id. at 3—14. The Board focused exclusively on

App. 14

Moore’s failure to demonstrate the inability to perform

at least two ADLs for at least thirty consecutive days,

as required. Id. at 8-9. Focusing first on Moore’s injury

during BNCOC, the Board found that despite Moore’s

claim that “other Soldiers in her BNCOC class helped

her to deal with her infirmity,” the “TSGLI standards

require an inability to perform at least two [ADLs] for

at least 30 consecutive days.” Id. at 10. The Board

“f[ou]nd it difficult to imagine that the BNCOC leader­

ship and BNCOC commandant would permit a Soldier

to continue with the course if that Soldier were so se­

verely debilitated that she needed the constant min­

istrations of her follow [Non-Commissioned Officer]

NCO students.” Id.

Further, as it relates to her surgery, “ [although

[Moore] claims she needed family members’ help to

perform ADLs, the Board note[d] that the knee surgery

was fairly routine, that [Moore] was otherwise a

healthy young woman at the time, and that she had a

healthy leg and two healthy arms and hands to assist

in her activities.” Id. at 10—11. The Board “therefore

f[ou]nd it implausible that [Moore] was incapable of

performing two ADLs for any period of 30 consecutive

days in 2003.” Id. at 11.

Turning to Moore’s second injury, the Board found

that Moore “underwent successful surgery to repair

[her] ACL,” and that “[although th[e] surgery and its

resulting physical rehabilitation were no doubt un­

pleasant, a surgery to repair a knee ligament d[id] not

strike th[e] Board as the kind of injury that would

debilitate a healthy young woman for at least 30

App. 15

consecutive days.” Id. And while Moore’s TSGLI appli­

cation contained “certification” statements offered by

medical professionals, the Board found that they

“state [d] little more than ‘to the best of my knowledge,

the provided information appears to be true.’ ” Id. Fur­

ther, “the certification statements were rendered more

than a decade after the injuries.” Id.

Ultimately, the Board “d[id] not see how a neutral

factfinder could find that [Moore], based on her two

knee injuries, lost one or more ADLs for any 30 consec­

utive day time period.” Id. As a result, it found that

Moore “failed to demonstrate by a preponderance of

evidence that she incurred a loss of at least two ADLs

for any period of 30 consecutive days.”/cL

APPLICABLE LAW

I.

Servicemembers’ Group Life Insurance

Traumatic Injury Protection Program

In 2005, Congress amended the preexisting Servicemembers’ Group Life Insurance Act in 2005 to add

the Traumatic Injury Protection program. The TSGLI

provides lump sum payments of $25,000 to $100,000

to members who meet the Department of Defense’s

criteria. 38 U.S.C. § 1980A(d)(l). Pursuant to 38 U.S.C.

§ 1980A(a) and (b), a service member is entitled to

TSGLI benefits if she sustained a “traumatic injury”

after December 2005 and the injury caused a “qualify­

ing loss.” Austin u. United States, No. SA-14-CA-277,

2014 WL 12637958, at *2 (W.D. Tex. July 7, 2014); see

also Fail v. United States, No. 12-CV-01761-MSK-CBS,

App. 16

2013 WL 5418169, at *2 (D. Colo. Sept. 27, 2013). “As

relevant here, a qualifying loss is one that renders a

service member unable to independently perform two

of the following six ‘activities of daily living,’ or ‘ADLs’:

bathing, continence, dressing, eating, toileting, and

transferring.” Austin, 2014 WL 12637958, at *2 (citing

38 U.S.C. § 1980A(b)(2)(D)(i)(vi)). A service member

can perform these functions “independently” when

she does not require human assistance. Turpin v.

United States, No. 5:18-CV-00180-OLG-RBF, 2019 WL

4060892, at *2 (W.D. Tex. Feb. 19, 2019) (citing White v.

United States ofAmerica, No. CV 17-193 (RMC), 2018

WL 5251740, at *1-2 (D.D.C. Oct. 22, 2018)). “If [a

claimant] is able to perform the activity by using ac­

commodating equipment (such as a cane, walker,

commode etc.) or adaptive behavior, the [claimant] is

considered able to independently perform the activity.”

Id. If a claimant can meet this standard, the program

pays $25,000 for each period of 30 days that the claim­

ant is disabled, up to a maximum of $100,000 for 120

days. 38 C.F.R. § 9.20(f)(20).

II.

Standard of Review

This suit is brought under 38 U.S.C. § 1975, which

confers jurisdiction on the federal district courts to ad­

judicate claims founded on the TSGLI program. Docket

No. 1. Here, “[b]oth parties agree that, because 38

U.S.C. § 1975 does not provide an applicable standard

of review, this action is governed by § 706 of the Ad­

ministrative Procedures Act [APA].” Austin, 2014 WL

12637958, at *2 (citing Hayward v. Dep’t of Labor, 536

App. 17

F.3d 376, 379 (5th Cir. 2008) (holding that, when a stat­

ute does not set forth a standard of review, courts apply

the “arbitrary and capricious” standard set forth in

section 706(2)(A) of the APA)). Under the APA, an

agency’s action must be upheld unless it was “arbi­

trary, capricious, an abuse of discretion, or otherwise

not in accordance with the law.” 5 U.S.C. § 706(2)(A).

“In applying this highly deferential standard of re­

view, courts afford agency actions a ‘presumption of

regularity’ and defer to them even if the court would

have decided the issue differently.” Austin v. U.S., Dept,

of the US. Army, 614 F. App’x 198, 202 (5th Cir. 2015)

(quoting Hasie v. Office of the Comptroller of the Cur­

rency of the US., 633 F.3d 361, 365 (5th Cir. 2011)).

“While the court must consider whether the decision

was based on a consideration of the relevant factors

and whether there has been a clear error of judgment,

and while this inquiry into the facts is to be searching

and careful, the ultimate standard of review is a nar­

row one.” Id. at 202-203 (internal quotations omitted).

Accordingly, the decision will “pass [ ] muster if it artic­

ulated a rational connection between the facts found

and the decision made.” Id. (internal quotations omit­

ted). “This articulation need not be perfect, so long as

the agency’s reasoning can be discerned.” Id.

The ABCMR possesses the statutory authority to

“correct any [Army] record” if necessary to “correct an

error or remove an injustice.” Stoneburner v. Sec’y of

the Army, 153 F.3d 485, 488 (5th Cir. 1998) (quoting 10

U.S.C. § 1552(a)(1)). In this context, the Court’s review

is “exceptionally deferential” because “(j]udges are not

App. 18

given the task of running the Army.” Williams v.

Wynne, 533 F.3d 360, 368 (5th Cir. 2008); Stoneburner,

152 F.3d at 488.

DISCUSSION

As an initial matter, the United States filed a mo­

tion to amend the briefing schedule prior to its dead­

line to file its cross-motion for summary judgment

(Docket No. 18). That motion indicated that the Army

litigation counsel assigned to this case would be unable

to meet the original deadline due to complications with

COVTD-19 and other administrative difficulties and

asked for a 30-day extension. Id. at 5-6. The United

States filed its cross motion for summary judgment

and response (Docket No. 19) 18 days later. Moore in­

dicated that she was opposed to the motion, but filed

no response explaining such opposition to the Court or

any prejudice she would suffer by such an extension.

Once the United States filed its cross-motion and re­

sponse, the parties briefed the motions without issue.

See Docket Nos. 20-22. There are no outstanding dead­

lines or pending trial date in this action. See Docket

No. 14. Accordingly, the Court GRANTS the United

States’s motion (Docket No. 18) and will consider all

filings currently before it.

Moore argues that the Board’s decision is arbi­

trary and capricious because the evidence demon­

strates that she suffered two qualifying traumatic

events—evidence that she argues the Board disre­

garded in reaching its decision. Docket No. 21 at 6-9.

App. 19

Moore contends that the court’s analysis in Fail v.

United States is dispositive, as she suffered similar in­

juries to the plaintiff, Christian Andersonn, and has

provided similar documentary evidence showing that

she was unable to independently perform at least two

ADLs in the time periods following both injuries. Id.

(citing 2013 WL 5418169, at *9-10).

The United States responds that the Board did not

determine whether or not Moore had suffered a quali­

fying traumatic injury, but rather focused on whether

she had demonstrated an inability to independently

perform two or more ADLs for any of the requisite time

periods. Docket No. 19 at 17-18. In doing so, the United

States contends that the Board reviewed Moore’s let­

ters but gave them less weight than other evidence in

the record—a decision that is well within the Board’s

discretion and is supported by the weight of the evi­

dence. Docket No. 22 at 2-4. The United States argues

that the letters lack foundation for the statements re­

garding Moore’s purported ADL limitations and none

of the authors allege to have personally assisted Moore

with any ADLs. Id.

Moore has failed to show that the Board’s decision

was arbitrary or capricious. The Board reviewed all the

evidence in the record as well as the two advisory opin­

ions from the Special Compensation Branch and ARBA

Medical Advisor in reaching its decision. The Special

Compensation Branch opinion noted that “[i]f you look

at each medical documentation sent in by the [Plain­

tiff 3 , no one states there is ADL loss or that she had

any trouble with ADLs.” AR at 105. The ARBA opinion

App. 20

similarly noted that both of Moore’s claimed injuries

were treated surgically, “and there is no documenta­

tion to indicate any significant post-operative compli­

cations that would have rendered [Plaintiff] unable to

perform [ADLs] for more than a continuous 30, 60, 90,

or 120 day period of time.” Id. at 87.

Regarding Moore’s first claim, while she states

that she received assistance from BNCOC classmates

in performing ADLs, “there are no statements submit­

ted from these individuals detailing the type or degree

of assistance provided or the duration of the alleged

assistance.” Id. There was no medical documentation

detailing that Moore was unable to independently per­

form ADLs following her meniscal injury, and the

Board found “it difficult to imagine that the BNCOC

leadership and BNCOC commandant would permit

[Moore] to continue with the course if [Moore was] so

severely debilitated that she needed the constant min­

istrations of her [classmates].” Id. at 8-10. Ultimately,

the Board found that the evidence in the record ren­

dered it “implausible” that Moore was unable to per­

form two ADLs for any period of 30 consecutive days in

2003. Id. at 11. Regarding Moore’s second injury, the

Board similarly reviewed all of the objective medical

and factual evidence in the record and relied on the

aforementioned advisory opinions. Moore has provided

no evidence to justify disturbing the Board’s finding,

which is based on a thorough review of the evidence in

the record.

Moore argues that, like Andersonn in Fail, the let­

ters she provided from her family provided sufficient

App. 21

evidence such that the Board should have found that

she was unable to perform two ADLs for a requisite

period. Docket No. 21 at 8—11. Moore attempts to com­

pare her administrative record with that of Andersonn’s in Fail because they suffered a similar injury.

The similarities, however, end there. The Fail court

specifically noted that Andersonn’s record was “unu­

sual” because it included a written statement from

his wife detailing the care she personally provided to

Andersonn, including specific limitations Andersonn

faced, specific assistance she provided and the exact

dates she assisted him. Fail, 2013 WL 5418169, at *9.

The Fail court found that this constituted “clear and

unrebutted evidence that Mr. Anderson indeed em­

ployed human assistance to perform the various ADLs

during the 60-day time period set forth in the state­

ment.” Id. at *10.

Moore’s record contains no such clear and unre­

butted evidence. While Moore has provided four letters

from her family members detailing her alleged ADL

assistance, none of the letters claim to have personally

assisted Moore with any ADLs. See AR at 326-329.

Moore’s two siblings claim that Moore’s father and two

minor children, DLM and DRM, cared for her following

her injuries. See id. at 327-328. Moore’s son, DLM,

however, claims that his grandfather and minor sister,

DRM, cared for Moore following her injuries. Id. at 326.

Finally, Moore’s daughter, DRM, claims that her

grandfather and minor brother, DLM, cared for Moore

during her injuries. Id. at 329. None of the individuals

in four letters claim to have personally assisted Moore

App. 22

following her injuries, nor do they provide a foundation

for their statements regarding Moore’s limitations. See

id. at 326—329.

The fact that the Board was not persuaded by

Moore’s letters does not mean that the Board failed to

consider them or that its decision was arbitrary and

capricious. “The mere fact that the administrative rec­

ord contain[s] some evidence supporting the claimant’s

ADL loss [is] not enough to render the [Board’s] deci­

sion to deny benefits arbitrary and capricious.” Austin,

614 F. App’x at 205 (emphasis in original) (citing Weller

v. United States, No. 14-68-SCR, 2014 WL 5320133, at

*4 (M.D. La. Oct. 17, 2014) (“That the plaintiff can

point to evidence in the record which supports his

claim is not dispositive.”)). Even where a reviewing

court might have concluded that family statements

alone were sufficient to establish a plaintiff’s claimed

ADL loss, “the highly deferential standard of review

that applies to [these] case[s] precludes substituting

[the court’s] judgment for that of the agency.” Id. It was

not arbitrary and capricious for the Board to rely on

the medical evidence and other objective facts in the

record instead of statements submitted by Moore’s

family members. See id.

Similarly, Moore has failed to show that the

Board’s decision was not rationally connected to the

facts or unsupported by evidence. Moore contends that

the Board’s finding that Moore did not suffer a “trau­

matic event” is unsupported by substantial evidence

and contradicted by evidence in the record. Docket No.

16 at 9. Regarding Moore’s first TSGLI claim, Moore

App. 23

argues that the medical evidence definitively shows

that Moore had a torn meniscus. Id. Moore likewise ar­

gues that the medical evidence demonstrates that she

suffered a torn ACL. Id. at 16. According to Moore, the

ARBA opinion rendered a conclusion contrary to the

substantial evidence in the record when it found that

“[biased on the definition of a scheduled loss from a

traumatic event in the TSGLI Procedural Guide, the

applicant did not meet the criteria to qualify for bene­

fits.” Id. at 13-14 (citing AR at 184).

The United States argues that Moore improperly

focuses on the ARBA advisory opinion’s finding that

she did not suffer a qualifying injury, which is not at

issue before the Court. Docket No. 19 at 17. The United

States contends that summary judgment is appropri­

ate because Moore fails to even address the Board’s de­

cision—which is what this Court is reviewing—and

disregards the fact that the Board denied Moore’s ben­

efits based on the second TSGLI requirement: whether

Moore “incurred a loss of at least two ADLs for any pe­

riod of 30 consecutive days.” Id. at 17-18 (citing AR at

11). Lastly, the United States argues that the Board’s

finding that Moore was capable of a much higher level

of functioning than she portrayed in her claims was ra­

tionally connected to the facts presented in Moore’s

medical records and is based on substantial evidence

in the record. Id. at 22.

Moore’s amended response points again to Fail to

argue that the Board’s decision is contrary to the evi­

dence in the record. Docket No. 21 at 5-11. Moore

does not address the United States’s argument that,

App. 24

irrespective of whether the Board found that Moore

had suffered a qualifying injury or not, the Board none­

theless found that she had not demonstrated that she

was unable to perform at least two ADLs for any req­

uisite period. But Moore does argue that the Board’s

decision ignores the four testimonial letters provided

by Moore’s family members and thus is contrary to

the evidence in the record. Id. at 11-12. The Court has

addressed above why Moore’s reliance on Fail is mis­

placed. The record demonstrates that the Board did

not rely on any one medical opinion or piece of evi­

dence, but rather reviewed and considered the entire

administrative record in reaching its decision. The

Board based its decision on the facts in the record

and chose to give greater weight to the objective evi­

dence than to Moore’s testimonial evidence. Such a

decision is not “arbitrary, capricious, an abuse of dis­

cretion, or otherwise not in accordance with the law.”

5 U.S.C. § 706(2)(A). It is not the province of this Court

to second-guess the Board’s decision where no clear

error of judgment is present. Austin, 614 F. App’x at

202-03.

CONCLUSION

For the foregoing reasons, the United States’s Mo­

tion to Amend Briefing Schedule (Docket No. 18) and

Cross-Motion for Summary Judgment (Docket No. 19)

are GRANTED, and Moore’s Motion for Summary

Judgment (Docket No. 16) is DENIED. Moore’s claims

are DISMISSED WITH PREJUDICE.

App. 25

So ORDERED and SIGNED this 21st day of

July, 2021.

/s/ Robert W. Schroeder III

ROBERT W. SCHROEDER III

UNITED STATES DISTRICT

JUDGE

App. 26

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

DAWN M. MOORE,

§

§

§

§

§

§

§

§

Plaintiff,

v.

UNITED STATES OF

AMERICA,

Defendant.

CIVIL ACTION NO.

5:18-CV-00102-RWS

ORDER

Pursuant to the Court’s orders dismissing the

case, the Court hereby enters Final Judgment. Accord­

ingly, it is

ORDERED that the above-captioned case is DIS­

MISSED WITH PREJUDICE. All motions by either

party not previously ruled on are hereby DENIEDAS-MOOT.

The Clerk of the Court is directed to close the case.

It is so ORDERED.

So ORDERED and SIGNED this 21st day of

July, 2021.

/s/ Robert W. Schroeder III

ROBERT W. SCHROEDER III

UNITED STATES DISTRICT

JUDGE

App. 27

United States Court of Appeals

for the Fifth Circuit

No. 21-40661

Dawn Moore,

Plaintiff—Appellant,

versus

United States of America,

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:18-CV-102

ON PETITION FOR REHEARING EN BANC

(Filed Apr. 19, 2022)

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a

motion for reconsideration (5th ClR. R. 35 I.O.P.), the

motion for reconsideration is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en banc

(Fed. R. App. P. 35 and 5th Cir. R. 35), the petition for

rehearing en banc is DENIED.

Case: 21-40661

Document: 00516286036

Page: 1

Date Filed: 04/19/2022

QUmteti States! Court of appeals;

for tfje Jftftf) Circuit

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2022

No. 21-40661

Lyle W. Cayce

Clerk

Dawn Moore,

Plaintiff—Appellant,

versus

United States of America,

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:18-CV-102

ON PETITION FOR REHEARING EN BANC

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a motion for

reconsideration (5th Cir. R. 35 I.O.P.), the motion for reconsideration

is DENIED. Because no member of the panel or judge in regular active

service requested that the court be polled on rehearing en banc (Fed. R.

App. P. 35 and 5th Cir. R. 35), the petition for rehearing en banc is

DENIED.