United States District Court, District of Columbia
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.
John Hensley (“Hensley”), a former Staff Sergeant
in the West Virginia Air National Guard, suffered a serious
shoulder injury when he fell from an aircraft in 2008. In
2013, he submitted a claim for $100, 000 under an insurance
program for members of the military who have suffered
traumatic injuries, Servicemembers' Group Life Insurance
Traumatic Injury Protection (“TSGLI”). The Air
Force denied Hensley's claim, concluding that Hensley had
not shown that his injury qualified him for TSGLI benefits.
Hensley sought review before the Air Force Board for
Correction of Military Records (the “AFBCMR” or
“Board”), which declined to grant his
application. Hensley then brought this lawsuit against the
United States (the “Government”), asserting that
the AFBCMR's decision should be reversed on the ground
that it was arbitrary and capricious in violation of the
Administrative Procedure Act (“APA”), 5 U.S.C.
§ 551 et seq.
and the Government have cross-moved for summary judgment.
See ECF No. 9 (“Pl.'s Mot.”); ECF
No. 13 (“Def.'s Cross-Mot.”); see
also ECF No. 15 (“Pl.'s Reply”); ECF No.
17 (“Def.'s Reply”). For the reasons
explained below, Hensley's motion will be granted in part
and denied in part, and the Government's motion will be
The TSGLI Program and Claims Process
of the U.S. armed services are automatically enrolled in the
Servicemembers' Group Life Insurance program, although
they may opt out. See 38 U.S.C. § 1967;
Ridgway v. Ridgway, 454 U.S. 46, 50-54 (1981)
(describing origins of program). TSGLI is an automatic rider
to that insurance and covers traumatic injury. See
38 U.S.C. § 1980A; Austin v. Prudential Ins. Co. of
Am., No. SA-12-CA-473, 2013 WL 12094176, at *2 (W.D.
Tex. Apr. 5, 2013).
receive TSGLI benefits, a service member must have suffered a
‘qualifying loss.'” Austin v. United
States, 614 F. App'x 198, 200 (5th Cir. 2015)
(quoting 38 U.S.C. § 1980A(a)(1)). By regulation, the
government has promulgated a schedule of losses describing
the types of injuries that are covered. 38 C.F.R. §
9.20(f). They include traumatic non-brain injuries
“resulting in an inability to perform at least 2
Activities of Daily Living (ADL) ” Id. §
9.20(f)(20). “The statute recognizes six ADLs: bathing,
continence, dressing, eating, toileting, and transferring (in
or out of a bed or chair).” Austin, 614 F.
App'x at 200 (citing 38 U.S.C. § 1980A(b)(2)(D)).
“TSGLI will pay $25, 000 for each consecutive 30-day
period of ADL loss, up to a maximum of $100, 000 for 120
consecutive days.” Id.
Fifth Circuit has summarized the TSGLI claims process as
To apply for benefits, a plan participant must file a form
SGLV 8600 with his service branch This form has two parts:
Part A, to be filled out by the claimant, and Part B, the
“Medical Professional's Statement, ” in which
the claimant's physician must certify the qualifying
losses claimed. . . .
The claim is then reviewed by a certifying official at the
claimant's branch of service. If that official approves
any benefits, he instructs . . . the private insurance
company that administers the TSGLI program to pay such
benefits and to notify the claimant if any part of the claim
has been denied.
Id. at 200. Within a year of the initial decision,
service members may appeal in writing “to the office of
the uniformed service identified in the decision regarding
the member's eligibility for the benefit.” 38
C.F.R. § 9.20(i)(1).
decisions may be further appealed to the relevant board for
correction of military records, such as the AFBCMR. See,
e.g., Blackwood v. United States, 187 F.Supp.3d
837, 839 (W.D. Ky. 2016). Such boards may act “to
correct an error or remove an injustice.” 10 U.S.C.
§ 1552(a)(1). In AFBCMR proceedings, the
“applicant has the burden of providing sufficient
evidence of material error or injustice.” 32 C.F.R.
§ 865.4(a). The AFBCMR panel appointed to hear the case
may request advisory opinions and information from other Air
Force officials, in which case the applicant will be given
the opportunity to respond. See Id. §
865.4(a)(1), (b). The panel may also, in its discretion,
order a hearing or request additional information from the
applicant. See Id. § 865.4(a)(2), (d).
applicants for TSGLI benefits may also seek review in federal
district court. District courts have original jurisdiction to
hear civil actions against the United States relating to
TSGLI. See 38 U.S.C. § 1975.
Hensley's Injury and Medical Treatment
February 20, 2008, Hensley slipped on an icy ladder while
inspecting an aircraft and fell head-first approximately 15
feet. AR 2 , 80 , 553 , 659 , 778
. Hensley's most serious injuries were to his left
shoulder: he suffered a fractured humerus, a torn labrum, and
possible ligament damage. AR 2 , 80 , 778 . He
received prompt medical attention at a local hospital, where
he was given a sling and advised to consult an orthopedist.
AR 2 , 70 , 82 , AR 553 . At that time, he was
ordered to remain off work for a week and to do no lifting
with his left arm. AR 82 . On February 25, 2008, he saw
the orthopedist, who provided him with a shoulder
immobilizer, prescribed him painkillers, and concluded that
he would likely have to remain off work for three months. AR
553-54 [80-81]. In March, Hensley began physical therapy
three times per week. AR 545 . It appears that Hensley
ultimately returned to work on April 21, 2008, but only on
“light duty” (with limitations on activities such
as lifting and overhead work) as recommended by his
orthopedist. AR 75 , 83 , 540 , 659 .
medical and physical-therapy records show that he continued
to suffer pain and a limited range of motion in his left
shoulder over the next six months. For example, on May 19,
Hensley's therapist reported that his shoulder “is
still very weak & pain in all planes of motion.” AR
492 . The next day, the orthopedist reported that
Hensley's left shoulder “show[ed] much better range
of motion, ” and that Hensley was “[s]till having
pain, but overall doing okay.” AR 83 . On June 30,
Hensley's therapist noted that he had
“numbness” in his left hand. AR 498 . Hensley
also reported “pain and weakness w/ overhead
activities” and “difficulty w/ gripping
items.” Id. On August 19, Hensley said that
“numbness & tingling in arm & shoulder bother
him, ” that he had pain when reaching overhead, and
that he was “unable to grip onto things.” AR 76
. Nonetheless, his orthopedist ordered him discharged
from physical therapy at that point. Id.
records contain a few explicit references to Hensley's
ability to perform ADLs. A note from his physical therapist,
dated April 9, 2008, stated that he was “still limited
at home w/ self care and home care ADLs.” AR 495 .
On November 18, 2008, Hensley underwent a “functional
capacity evaluation” with a physical therapist at the
request of his orthopedist, who wanted to determine whether
Hensley could be released from light duty. AR 68 , 468
. Hensley reported that he continued to avoid using his
left arm due to pain. AR 476 . In a written
questionnaire, he checked “no” when asked if he
needed “regular assistance with dressing.” AR 377
. He added, “well I use slip on shoes so I
don't need help, but it is tuff to do my work
boots.” Id. The official report of the
evaluation, dated December 11, 2008, recorded further
comments from Hensley on dressing and bathing:
I have some difficulty but I can do it. Getting in and out of
the deep whirlpool tub which I use every day because it makes
the pain better (no grab bars), getting work boots on because
I have to tie them and tuck the strings in (up to mid-calf).
My son will often help me get them off at the end of the day.
AR 472 . Hensley also reported that he could not yet do
many household chores such as mowing the lawn or vacuuming.
Id. The therapist recommended that Hensley remain on
light duty due to his poor balance when using a ladder and
his inability to reach overhead. AR 471 .
continued to experience pain after November 2008. In June
2009, he had surgery to repair the torn ...