United States District Court, District of Columbia
CHRISTOPHER T. HOLMES, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
D. BATES UNITED STATES DISTRICT JUDGE
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.
Statutory and Regulatory Background
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).
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.
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.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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...