United States District Court, District of Columbia
F. HOGAN SENIOR UNITED STATES DISTRICT JUDGE
Ladale Rich is a veteran of the United States Navy who
suffered traumatic injuries in a motorcycle accident on May
21, 2014. In November 2014, Rich submitted a claim for
benefits under the Servicemembers' Group Life Insurance
Traumatic Injury Protection (“TSGLI”) program,
stating that he was unable to independently perform at least
two “activities of daily living”
(“ADLs”) as a result of his injuries. The Navy
initially denied Rich's claim in full. Rich applied for
reconsideration, and his claim was approved for the first 30
days of claimed losses but denied for the remaining 30 days.
Rich appealed the partial denial several times, and the Board
for Correction of Naval Records (“BCNR”)
ultimately denied his claim on January 3, 2017.
filed this lawsuit against the United States on November 6,
2017, arguing that the Court should vacate the BCNR's
decision because it was arbitrary and capricious under the
Administrative Procedure Act (“APA”). The parties
filed cross-motions for summary judgment [ECF Nos. 11, 14],
and the Court held a motions hearing on December 6, 2018. For
the reasons that follow, Rich's motion will be granted in
part and denied in part, and the United States's motion
will be denied.
The TSGLI Program
provides short-term financial assistance to service members
and veterans who have suffered traumatic injuries.
See 38 U.S.C. § 1980A. To receive TSGLI
benefits, a service member must show that he or she has
suffered a “qualifying loss, ” which includes the
inability to “independently perform” at least two
out of six ADLs: bathing, continence, dressing, eating,
toileting, and transferring in or out of a bed or a chair
with or without equipment. 38 U.S.C. § 1980A(b)(1)(H);
2(D); 38 C.F.R. § 9.20(e)(6)(vi). For claims based on
inability to carry out ADLs, a service member who has
suffered a traumatic injury other than a brain injury must
establish that he or she was unable to perform the ADLs for a
minimum of 30 consecutive days. 38 C.F.R. § 9.20(f)(20).
“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.” Hensley v. United States,
292 F.Supp.3d 399, 402 (D.D.C. 2018) (quoting Austin v.
United States, 614 Fed.Appx. 198, 200 (5th Cir. 2015)).
District courts have original jurisdiction over civil actions
against the United States relating to TSGLI. See 38
U.S.C. § 1975.
Rich's Injuries & Medical Treatment
21, 2014, while still on active duty in the Navy, Rich was
involved in a serious motorcycle accident that resulted in
fractures to both of his ankles, severe road rash, and a deep
wound injury to his left knee. On the day of the accident, Rich
was admitted to Naval Hospital Jacksonville, where he was
diagnosed with a left ankle fracture and taken to surgery for
irrigation and debridement of his left knee wound and
debridement of abrasions on both arms.
344-45. Rich was discharged from the hospital on May 23, 2014
with a splint on his left ankle (non-weight bearing) and a
CAM walker boot on his right ankle (weight bearing as
tolerated). AR 465, 468. At Rich's first post-operative
visit on May 27, 2014, Dr. Paul Shupe, his orthopedic
surgeon, noted that Rich “is mobilizing in a
wheelchair. He also uses a walker.” AR 467. Dr. Shupe
directed Rich to follow-up in one week for removal of the
stitches on his left knee and conversion from a splint to a
cast on his left leg. AR 345. At the conclusion of the May
27, 2014 appointment, Dr. Shupe released Rich “w/o
Limitations.” AR 468.
two weeks after the accident, on June 4, 2014, Rich had
another appointment with Dr. Shupe, who noted that Rich's
“primary complaint at this time is pain within the
right ankle.” AR 462. Dr. Shupe referred Rich for an
MRI of his right ankle and converted his left ankle from a
splint to a cast. Id. Rich was “Released w/
Work/Duty Limitations” on June 4. Id. The
subsequent MRI revealed multiple fractures in Rich's
right ankle, and Dr. Alex Vincent, a “foot and ankle
specialist, ” recommended a further CT scan “for
better definition of the skeletal injuries.” AR 339. On
June 19, 2014, Rich had a follow-up appointment with Dr.
Shupe, who indicated that he expected “operative
treatment of the right foot” following the CT scan and
noted that Rich “was provided with a light duty
chit.” Id. Rich was “Released w/o
Limitations” on June 19. Id.
the CT scan of Rich's right ankle, which confirmed
“multiple ankle fractures, to include the posterior
facet of the subtalar joint . . . as well as the
anterolateral aspect of the posterior facet of the talus,
” Rich had another appointment with Dr. Shupe on June
24, 2014. AR 454. In order to “allow for his left lower
extremity fibular fracture to heal in [sic] for his cast to
be removed prior to undergoing operative intervention on the
right” ankle, surgery to repair Rich's right ankle
was planned for the week of July 7. AR 454-55; 336. Again,
Dr. Shupe noted that Rich was “Released w/o
Limitations.” AR 455.
pre-operative orthopedic visit with Dr. Shupe on July 7,
2014, the cast on Rich's left ankle was removed and he
was transitioned to a removable CAM boot on the left leg. AR
332. Dr. Shupe noted that Rich was then “weight bearing
as tolerated” on the left ankle, and Rich was released
“w/o Limitations.” Id. The following
day, July 8, 2014, Dr. Shupe performed surgery on Rich's
right ankle, during which he removed multiple bone fragments
and implanted several surgical screws and other hardware. AR
445-447. Rich was placed in a splint following surgery, and
Dr. Shupe's post-operative notes indicated that Rich
would “be non weightbearing on his lower right
extremity. He will be seen back in the Orthopedic Clinic in
10-14 days' time for suture removal.” AR 447.
July 25, 2014 post-operative visit, Dr. Shupe noted that
Rich's pain in his right ankle was improving and was
“limited by immobilization of the foot.” AR 328.
Rich's right ankle was converted from a splint to a cast,
and Dr. Shupe recommended that he be
“[n]on-weight-bearing lower left [sic] extremity with
walker until fracture healing is observed.”
Id. Dr. Shupe's notes from July 25, 2014 also
indicate “LIMDU initiated at today's appt, ”
an apparent reference to Rich's assignment to
“Limited Duty.” Id. Dr. Shupe referred
Rich for physical therapy on his left ankle, and he was
“Released w/o Limitations” and instructed to
follow up in 4 weeks with the Orthopedic Clinic.
Id.; AR 442. Rich's first physical therapy
consultation, which was limited to his left ankle at that
time, took place on July 31, 2014. AR 439.
submitted his first TSGLI application on November 7, 2014
with a Medical Professional's Statement from Dr. Shupe
claiming that Rich was unable to independently perform the
ADLs of bathing, dressing, eating, toileting, and
transferring from the dates of May 21, 2014 to July 2, 2014.
AR 1, 4; AR 13, 14. Dr. Shupe included a note stating
“Pt had bilateral lower extremity injuries requiring no
weight bearing. This required hands on assistance until WB
status was changed 2 July.” AR 13. Rich's
initial claim sought coverage for ADL losses of 30 days.
letter dated December 10, 2014, Prudential's Office of
Servicemembers' Group Life Insurance denied Rich's
initial claim: “Your claim for inability to
independently perform Activities of Daily Life (ADLs) due to
traumatic injury (other than traumatic brain injury) was not
approved because there is not enough medical information to
support that you could not perform ADLs independently.”
AR 22. The letter informed Rich of the type of information
that must be presented to support his claim and further
stated that “[b]ecause your claim did not have the
necessary information, your branch of service could not
approve your claim.” Id.
receipt of the December 10, 2014 denial letter, Rich
corresponded several times via email with Mary Koontz, Navy
Program Manager for Traumatic Injury & Family SGLI. AR
25-28. On December 23, 2014, Ms. Koontz emailed Rich:
CS1, the reason you were denied is despite being bilateral
lower legs, your medical records clearly states [sic] you
were weight bearing on crutches and you started physical
therapy on day 43. Both which stop any ADL losses.
AR 27. Rich informed Ms. Koontz that the information in her
email was incorrect, and their correspondence concluded on
December 29, 2014 with Rich stating that he would discuss the
matter with his surgeon [Dr. Shupe]. AR 25.
retained counsel, and on May 26, 2015, he submitted a request
for reconsideration of the denial of his first claim for
TSGLI benefits for 30 days of ADL losses, and a supplemental
claim for ADL losses for over 60 days. AR 31-32. This
supplemental claim asserted that Rich was unable to
independently perform the ADLs of bathing, dressing,
toileting, and transferring from May 21, 2014 to July 22,
2014. AR 47-50. In addition to his medical records, Rich
(1) a declaration regarding his injuries and inability to
independently perform ADLs (AR 51-52);
(2) a declaration from his fiancée, Melanie Escobar,
who helped provide care to Rich during his recovery (AR
(3) a medical professional's statement from an
independent registered nurse, Nancy Olson, RN, MSN, who
reviewed Rich's medical records and concluded that the
evidence showed he could not independently perform the
claimed ADLs for at least 60 consecutive days (AR 55-58).
declaration stated in part:
3. Upon discharge, I was identified as a “fall
risk”, and was asked if anyone would be able to take
care of me. Since I was living in the barracks at that time,
it would not be feasible for me to return there, given my
injuries and the stairs. Instead, I went to live with my
fiancée Melanie at her mother's house, which was a
flat-level home. I was provided with a wheelchair and walker,
but most of the time I had to stay in bed, as Melanie had to
work, and I couldn't get up without her help.
Melanie's mother and sister helped me out when she was at
work as much as they could.
4. I remember being in tremendous pain. Due to the road rash,
I had dressings on both arms that were wrapped, and needed to
be changed daily. My arms hurt so much that it was too
painful for me to eat. Melanie fed me for the first couple
weeks, and took care of my dressings.
5. Transferring from bed was limited to when someone could
help me. I would have to slide to the edge of the bed, and
someone would stand with the walker steady, so I could pull
myself up. I had to put my hands around their arms, and they
helped me at my waist, due to the intense pain from the road
rash and ankle injuries, and the limitations of the splint.
My legs were very weak, and I needed hands-on assistance so I
would not fall. I needed this assistance until at least July
6. For bathing, Melanie would either sponge-bathe me in bed,
or transfer me to the edge of the bathtub, where she would
wash my wounds, and use a shower head device, while keeping
my splinted leg covered. She used an antiseptic wash on my
7. For toileting, I mainly used a urinal, which Melanie had
to empty. When I had to move my bowels, I needed assistance
to the bedside commode, and then someone would have to empty
and clean it for me. This continued until at least July 22,
8. For dressing, Melanie went out and bought me loose
clothing, such as sweatpants and loose shorts. Shirts were
painful to put on and take off. The road rash looked like
burns, and was treated as such. I would need assistance to
sit up, and hold on to something while she removed my shirt
and pants. Twice a day, she wrapped my arm dressings from
shoulders to hands to prevent infection.
9. I continued to have pain in my right ankle that was not
improving. Two weeks after the accident, my doctor ordered an
MRI of the right ankle, which showed that I needed surgery.
On July 8, six weeks after the accident, I had surgery on my
right ankle. Just as I had not been able to bear weight on my
left leg, now I was not to bear weight on my right.
10. I continued to need assistance with ADLs of transferring,
toileting, bathing, and dressing up until this right ankle
surgery on July 8, and for at least two weeks after (July
22). On July 25, 2014, I was cleared to begin physical
therapy, and LIMDU was initiated. I am still dealing with a
damaged nerve in my right ankle, and will need another
surgery to it soon. I currently walk with a cane, and perform
light duty work at a computer here in Jacksonville.
AR 51-52. Melanie Escobar's declaration stated as
2. I provided my fiancé, LaDale Rich, with physical
and standby assistance after he suffered fractured ankles and
severe road rash as the result of a motorcycle [sic] on May
21, 2014. He was taken by car to Naval Hospital of
Jacksonville, where he underwent surgery for debridement of
his wounds, and splinting of his left ankle. He was
discharged on May 23, with a wheelchair and walker, and was
instructed not to bear any weight on his left leg. He came to
live at my mother's house, as he was not fit to return to
the barracks, ...