United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
2011, while serving with the United States Army in
Afghanistan, Specialist Kyle Andrew White sustained a serious
gunshot wound to his left thigh during a firefight with enemy
combatants. After a period of recovery, Mr. White filed a
claim for benefits under the Servicemembers' Group Life
Insurance Traumatic Injury Protection (TSGLI) program, which
was established to provide monetary assistance to service
members who have suffered traumatic injuries. Mr. White
submitted an insurance claim stating that he was unable
“to independently perform” two “activities
of daily living”-bathing and dressing-for a qualifying
period of at least 30 consecutive days. However, the Army
determined that Mr. White was able to independently bathe and
dress himself within 30 days of his injury and so denied his
claim. Mr. White contests that determination here.
White appealed to the Army several times without success and
now challenges the Army's denial of benefits under the
Administrative Procedure Act (APA). Both parties move for
summary judgment. The Court will deny Mr. White's motion
for summary judgment and grant the Army's cross-motion.
Servicemembers' Group Life Insurance Traumatic Injury
Protection program was established in 2005 to provide
monetary assistance to service members who have suffered
traumatic injuries. See 38 U.S.C. § 1980A. To
receive benefits, a service member must show that his or her
injury resulted in a “qualifying loss, ” which
includes an “inability to independently perform”
two or more “activities of daily living” (ADLs)
for a minimum period of 30 consecutive days. See 38
C.F.R. § 9.20(f)(20). “Activities of daily
living” are defined as bathing, continence, dressing,
eating, toileting, and transferring in and out of a bed or
chair with or without equipment. See 38 C.F.R.
§ 9.20(e)(6)(vi); 38 U.S.C. § 1980A(b)(2)(D).
Service members are entitled to additional benefits after 60,
90, and 120 consecutive days with a qualifying loss.
See 38 C.F.R. § 9.20(f)(20).
the TSGLI statute nor corresponding regulations define what
it means to be able to “independently perform” an
activity of daily living. Without such definition, the
Department of Veterans Affairs (VA) issued guidance to the
service branches in the Traumatic Injury
Protection Under Servicemembers' Group Life Insurance
(TSGLI): A Procedural Guide (hereinafter Procedures
Guide) [Dkt. 31-2],  which states that
[a] member is considered to have a loss of ADL if the member
REQUIRES assistance to perform at least two of the six
activities of daily living. If the patient is able to perform
the activity by using accommodating equipment (such as a
cane, walker, commode, etc.) or adaptive behavior, the
patient is considered able to independently perform the
Procedures Guide at 18 (emphasis in original).
Versions of this guidance have been used since 2006, though
there is no indication that the guidance was formally noticed
and commented on. See Procedures Guide at 1-2
(describing the document's revision history).
the TSGLI program is administered by the VA, the service
branches, which are components of the Department of Defense,
are separately responsible for determining whether their
members are covered by the TSGLI and whether service
personnel sustained a qualifying loss. See 38 U.S.C.
§ 1980A(f). Army service members who are denied benefits
may appeal first to the Army TSGLI Office, then to the Army
Human Resources Command (HRC) TSGLI Appeals Board, and
finally to the Army Board for Correction of Military Records
(ABCMR or Board). Procedures Guide at 73.
Medical and Service Background
31, 2011, while serving with the United States Army in
Afghanistan, Specialist Kyle Andrew White sustained a serious
gunshot wound, entry and exit, to his left thigh during a
firefight with enemy combatants. TSGLI Application at AR
98-101. He was evacuated by medical helicopter and underwent
surgery to explore and treat the wound. Id.
Fortunately, although he suffered significant soft tissue
injury, no major bones were fractured or major arteries or
veins damaged. Id. On June 4, 2011, he was medically
evacuated to Baynes-Jones Army Community Hospital at Fort
Polk, Louisiana, and admitted to the Warrior Transition Unit.
Id. at AR 89-92. Mr. White's recovery took place
over several months in 2011. The Court highlights only a few
of the key medical records in the Administrative Record.
White's case management notes from June 4, 2011 (5 days
after injury), show that he could walk on his own (albeit
with difficulty and the assistance of a cane) and that he was
living at the barracks with a private room and bathroom.
Id. On June 6, 2011 (7 days after injury), Mr. White
reported difficulties with dressing, eating, hygiene, and
walking, as well as moderate pain and restricted range of
motion. Id. Notwithstanding, he was “[w]ell
appearing considering that he was shot in the leg one week
ago” and released with work/duty limitations.
Id. at AR 82. On June 10, 2011, Mr. White's
parents arrived at Fort Polk to help him with his recovery.
Ex. A (Mother's Caregiver Letter), TSGLI Appeal, at AR
14, 2011 (15 days after injury), Mr. White appeared at the
Warrior Transition Unit for a weekly checkup. At that time,
Mr. White completed an intake form, reporting that he had no
difficulties driving, planning and shopping for meals,
cooking, or eating well. He further indicated that he had
only minimal difficulty (“pain occurs 25% of the
time”) with dressing himself, with personal hygiene
(including bathing), and with everyday activities.
See TSGLI Application at AR 62-63. However, Mr.
White did report moderate difficulty (“pain occurs 50%
of the time”) performing light household chores,
sleeping at night, and with gross motor active range of
motion (“movement of shoulder, knee, hips”).
Id. Lastly, Mr. White reported profound difficulty
performing heavy outdoor chores. Id.
addition to the intake form, Mr. White reported that
“he has a seat in the shower, a detachable spray
nozzle, and a long-handled sponge. He states he needs these
and they work well for him, as he has difficulty with balance
and accessing the [left] distal [lower extremity].”
Id. at AR 63-64. He also reported that he had
“[d]ifficulty dressing: putting on [left] sock, but he
can do it.” Id. Mr. White was again observed
ambulating with a cane. The primary care manager recommended
that Mr. White be returned to the rear detachment troop unit,
because care was no longer complex, and released him without
limitations. Id. at AR 63-64, 67.
18, 2011 (19 days after injury), Mr. White reported at a
checkup that his family had returned to California earlier
that week. Id. at AR 46. On June 23, 2011 (23 days
after injury), Mr. White flew back to California for 30 days
of convalescent leave. Id. at AR 41, 39. Notes from
a checkup in California on June 24, 2011 (25 days after
injury), show that Mr. White had two wounds from his surgery
that were “slow to heal, ” but that he was
“[o]therwise doing well.” Id. at AR 37.
records indicate that by July 7, 2011 (38 days after injury),
Mr. White's wounds were almost fully closed and could no
longer be packed. Id. at AR 34. By July 21, 2011 (52
days after injury), Mr. White was walking without a cane (but
with a limp) and could extend his leg, though not fully.
Id. at AR 29-30. His left knee was weaker than his
right, and he reported throbbing that got worse over the
course of the day but better with rest. Id. By July
25, 2011 (56 days after injury), Mr. White's wound and
skin were fully healed, although he still experienced
decreased strength and range of motion with his left leg and
fatigue after short periods of standing. Id. at AR
27. By August 9, 2011 (71 days after injury), Mr. White had
full range of motion and near normal strength in his left
leg, although he still experienced some pain
(“3/10”). Id. at AR 23.
November 27, 2012, after 2 years, 10 months, and 16 days of
active service, Mr. White was honorably discharged from the
Army due to physical disability. See Certification
of Release or Discharge from Active Duty at AR 1162.
September 6, 2011, Mr. White submitted a TSGLI claim to the
Army based on an inability to independently perform two
activities of daily living, to wit, bathing and dressing, for
at least 45 days (i.e., between the 30 and 60-day
thresholds). See TSGLI Application at AR 1-10. Mr.
White's claim was certified by Doctor Robert Kendrick,
Mr. White's treating physician at Fort Polk. Id.
The Army denied his claim on October 18, 2011, because his
“loss did ...