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White v. United States

United States District Court, District of Columbia

October 22, 2018

KYLE ANDREW WHITE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         In May 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.

         Mr. 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.

         I. BACKGROUND

         A. Statutory Background

         The 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.[1] 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).

         Neither 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], [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 activity.

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).

         Although 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.

         B. Medical and Service Background

         On May 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.

         Mr. 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 147.

         On June 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.

         In 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.

         On June 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.

         Medical 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.

         On 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.

         C. Procedural History

         On 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 ...


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