Holmes v. United States

          MEMORANDUM OPINION

          JOHN D. BATES UNITED STATES DISTRICT JUDGE

         Former Sergeant First Class Christopher Holmes claims that the United States improperly denied him benefits under the Servicemembers' Group Life Insurance Traumatic Injury Protection (“TSGLI”) program for injuries he suffered in a motorcycle accident. As a covered service member, Holmes is entitled to TSGLI benefits if his injuries caused an inability to independently perform at least two enumerated “activities of daily living, ” such as bathing or dressing, for a minimum of thirty consecutive days. After the United States Army denied his claim and appeals six times over the last eight years, Holmes filed suit under the Administrative Procedure Act (“APA”) to challenge the final decision as arbitrary and capricious. In cross-motions for summary judgment, the parties dispute whether the Army appropriately concluded that Holmes failed to establish his inability to independently perform at least two activities of daily living within the meaning of TSGLI. For the reasons that follow, the Court will deny Holmes's motion for summary judgment and grant the government's cross-motion.

         BACKGROUND

         I. Statutory and Regulatory Background

         Congress established the TSGLI program to provide short-term financial assistance to uniformed service members who have suffered certain qualifying traumatic injuries. See 38 U.S.C. § 1980A et seq. The Secretary of Veterans Affairs (“VA”) is authorized to define the scope of qualifying losses within certain statutory limits. 38 U.S.C. § 1980A(b)(1). As relevant here, the VA has defined qualifying losses to include injuries resulting in the inability to “independently perform” two or more activities of daily living (“ADLs”) for at least 30 consecutive days. 38 C.F.R. § 9.20(e)(6)(vi), (f)(20). Qualifying ADLs are bathing, continence, dressing, eating, toileting, and transferring in and out of a bed or chair with or without equipment. Id. § 9.20(e)(6)(vi)(A)-(F). An ADL loss of thirty consecutive days entitles service members to $25, 000 (with an additional $25, 000 at each of the 60, 90, and 120 consecutive-day marks, for a maximum of $100, 000). Id. § 9.20(f)(20).

         Although the term “independently perform” is not defined by statute or regulation, the VA has issued guidance stating that “[a] member is considered to have a loss of ADL if the member REQUIRES assistance to perform” ADLs. Traumatic Injury Protection Under Servicemembers' Group Life Insurance (TSGLI): A Procedural Guide (“TSGLI Procedures Guide”), Ex. 2 to Administrative Record [ECF No. 23-3] at 18. And if the member “is able to perform the activity by using accommodating equipment . . . or adaptive behavior, ” the Guide states, he or she is “considered able to independently perform the activity.” Id.

         Members submit TSGLI claims to their branch of uniformed service-here, the Army- which is in turn responsible for “certify[ing] to the [VA] whether” members have “sustained a qualifying loss.” 38 U.S.C. § 1980A(f); see 38 C.F.R. § 9.20(g). If a TSGLI claim is denied, members may first request the Army's TSGLI Program Office to reconsider, then appeal to the Army Human Resources Command (“HRC”) Special Compensations Branch of the TSGLI Appeals Board, and then to the Army Review Board Agency (“ARBA”), which will make a final determination through the Army Board for Correction of Military Records (“ABCMR” or “Board”). See TSGLI Procedures Guide at 73; Administrative Record [ECF No. 22-2] 1178-80.^[1]On review, the ABCMR is charged with entering a correction only if it concludes, by a “preponderance of the evidence, ” that a “material error or injustice exists.” 32 C.F.R. § 581.3(b)(4)(ii), (e)(2).

         II. Facts

         On April 16, 2010, Christopher Terrill Holmes, then a thirty-six-year-old Sergeant First Class (“SFC”) in the United States Army, lost control of his motorcycle, hit a ditch, and was thrown onto the pavement. A.R. 72-73, 164, 1292. Holmes was taken to a Virginia hospital where he was diagnosed with a “comminuted” “intra-articular fracture” of the scapula-a shoulder fracture-and scheduled for surgery. A.R. 72-74. Holmes's arm was placed in a sling, he spent the night at the hospital, and he was discharged the next day. A.R. 72-74, 173. Hospital records from his stay recorded Holmes's “ADLs” as “Independent, ” and described his “Activity Level” as “Minimal ADL Assistance needed.” A.R. 568-70. Under the heading “Activity Instructions, ” discharge documents recommended that Holmes refrain only from “strenuous exercise, ” “heavy lifting, ” and “heavy housework for 1 month.” A.R. 173.

         Seven days after the accident, notes from an appointment with Holmes's treating orthopedic surgeon, Dr. Vivek Sharma, record Holmes's complaints of “moderate to severe” shoulder pain that “is aggravated by physical activity and any movement, ” resulting in “painful [range of motion], decreased [range of motion], difficulty [with] overhead activities, difficulty dressing [him]self, difficulty with pushing, difficult with pulling and difficulty with lifting.” A.R. 75, 103.

         Holmes had shoulder surgery twelve days after the accident. A.R. 75, 106. Holmes remained in recovery for three days, during which time nurses helped him travel “to [the bathroom] and back, ” “to dress, ” and to “sit up for dressing removal.” A.R. 76. Holmes was then discharged with a sling, which doctors estimated he would need for six weeks, and was instructed to start “passive range of motion” physical therapy. A.R. 75-76.

         Records from twenty-four days after the accident note no postoperative complications, “slightly improved” symptoms, “mild” post-operative pain, and an “improvement in activity level.” A.R. 653. Holmes's gait and posture were recorded as “normal” and it was recommended that the rehabilitation plan, including physical therapy exercises, continue as planned. Id. Upon discharge, Dr. Sharma signed a “Certificate to Return to Work or School” form, on which he marked as applicable the statement: “He will be totally incapacitated for approximately 6 weeks pending follow up.” A.R. 91.

         Fifty-six days after the accident, clinic notes state Holmes's surgical incisions had “healed well, ” that his left shoulder's “range of motion [was] limited” and “passive . . . with minimal discomfort, ” that rehabilitation should be continued with “aggressive range of motion exercises, ” and that the shoulder sling should be “discontinued.” A.R. 652, 1151. Dr. Sharma signed a second certificate, on which he marked that Holmes will be “totally incapacitated for approximately 4 weeks.” A.R. 92.

         Over the next several months, Holmes made frequent trips to the physical therapist. A.R. 77-79. In October 2010, after having struggled for months to make a full recovery, Holmes decided to undergo an additional outpatient procedure on his shoulder. A.R. 79-80. After this second, less invasive, surgery Holmes was immediately released and directed to continue physical therapy. A.R. 80-82, 1154-55. After several more months, in June 2011, physical therapy records noted that Holmes experienced “pain free shoulder motion” and was “able to perform ADLs [with] decreasing difficulty.” A.R. 86.

         III. Procedural History

         Holmes applied for TSGLI benefits on August 2, 2010. See A.R. 1-37. His application claimed a loss of ability to perform four ADLs: bathing, dressing, toileting, and transferring independently. See A.R. 12-14. As part of the application, Dr. Sharma certified ADL losses for 62 days between April 16, 2010 to June 16, 2010, noting that Holmes “is recovering from this injury” and “is on restricted duty for 6 [weeks].” See A.R. 9-14.

         Holmes's TSGLI claim was denied on the grounds that there was “not enough medical information to support” the claimed losses. See A.R. 38-40. The denial letter stated that Holmes needed to submit medical records “address[ing] the specific injury/injuries . . . sustained and illustrat[ing] a timeline of treatment . . . consist[ing] of notations from licensed medical providers” along with other “[s]upporting documentation.” A.R. 38.

         Holmes applied for reconsideration. See A.R. 41, 44-51. The reconsideration request argued that the “extreme pain, immobility, and side effects of the strong pain medication . . . made it impossible for [Holmes] to dress and bathe himself without assistance.” A.R. 48. Holmes also supplemented the request with written testimonials from Holmes and his wife, Latrice Holmes. See A.R. 67-70. Latrice Holmes averred that Holmes was “not able to do basic tasks” for “at least four months” and that, because of his accident, she had to “assist him” with dressing, bathing, and “get[ting] in and out of bed and on and off the toilet.” A.R. 67. Additionally, Latrice Holmes stated, Holmes “still” requires her help with “daily activities” as of July 2011, when she wrote the statement. Id. Holmes's statement mirrors his wife's. Holmes explained that, after a few days in the hospital, he was “discharged . . . into the 24-hour care” of his wife, and “could not perform any daily activities” without her, including bathing, dressing, toileting, and transferring. A.R. 69. In addition to the written testimonials, Holmes supplemented the medical record with a second ADL loss certification from a different doctor, Dr. Dennis Hopkins, who conducted a paper review of Holmes's medical records. Dr. Hopkins certified an ADL incapacity between April 16, 2010 and November 15, 2010-a period of 213 days. See A.R. 58-63. Dr. Hopkins noted in the revised application that, despite “the large volume of medical records, ” there was “poor ADL info” and the “servicemember and caregiver statements give better insight into [Holmes's] difficulties with ADLs.” A.R. 63.

         The Army's TSGLI Office denied Holmes's request for reconsideration. See A.R. 527. The denial letter summarily stated that the “medical documentation [he] submitted did not indicate that [his] physical injury would make [him] incapable of performing the ...