Rich v. United States

          MEMORANDUM OPINION

          THOMAS F. HOGAN SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Rich 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.

         I. BACKGROUND

         A. The TSGLI Program

         TSGLI 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.

         B. Rich's Injuries & Medical Treatment

         On May 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.^[1] 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.

         AR 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.

         Approximately 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.

         After 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.

         At his 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.

         At his 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.

         C. Procedural History

         Rich 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.^[2] Rich's initial claim sought coverage for ADL losses of 30 days.

         By 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.

         Following 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.

         Rich 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 submitted:

(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 53-54); and

(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).

         Rich's 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 22, 2014.

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 wounds.

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, 2014.

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 follows:

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, ...