MEMORANDUM OPINION
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
Plaintiff
Bennie Cloud, a corporal in the United States Marine Corps,
suffered serious injuries, including a fracture of his femur,
in a motor vehicle accident in March 2011. A few years later,
he submitted a claim for benefits under the
Servicemembers' Group Life Insurance Traumatic Injury
Protection program, which required him to show that he was
unable to perform two or more activities of daily life (ADLs)
for thirty or more days. Cloud's initial claim for
benefits and several of his intermediate appeals were denied.
Then the Board for Correction of Naval Records (BCNR) denied
his final appeal, finding that the evidence did not support
his claim that he had been unable to perform two or more ADLs
for the necessary time.
Cloud
challenged the denial of his application for benefits on the
ground that it was arbitrary and capricious under the
Administrative Procedure Act (APA). The parties have
cross-moved for summary judgment. See ECF Nos. 11,
14. For the reasons explained below, Defendant's motion
will be granted and Cloud's will be denied.[1]
I.
Background
A.
The TSGLI Program and Claims Process
Congress
established the Servicemembers' Group Life Insurance
Traumatic Injury Protection (“TSGLI”) program in
2005 to provide financial help to servicemembers who have
suffered “qualifying losses” from traumatic
injuries. 38 U.S.C. § 1980A. A “qualifying
loss” includes the “inability to independently
perform” two or more ADLs for a minimum period of 30
consecutive days. 38 C.F.R. § 9.20(f)(20). The six ADLs
the statute recognizes are bathing, continence, dressing,
eating, toileting, and transferring in or out of a bed or
chair with or without equipment. 38 U.S.C. §
1980A(b)(2)(D); see 38 C.F.R. § 9.20(e)(6)(vi).
Under guidance issued by the Department of Veterans Affairs,
a servicemember “is considered to have a [qualifying]
loss of ADL if the member REQUIRES assistance to perform at
least two of the six activities of daily living.”
Traumatic Injury Protection Under Servicemembers' Group
Life Insurance (TSGLI): A Procedural Guide (“Procedures
Guide”) at 18 (available at
http://www.benefits.va.gov/insurance/docs/tsgliproceduresguide.pdf).
“If the patient is able to perform the activity by
using accommodating equipment . . . or adaptive behavior, the
patient is considered able to independently perform the
activity.” Id. Servicemembers are entitled to
$25, 000 for each consecutive 30-day period of ADL loss, up
to a maximum of $100, 000 for 120 consecutive days. 38 C.F.R.
§ 9.20(f)(20).
Marine
Corps servicemembers first submit TSGLI claims to their
branch of service. Procedures Guide at 50. The initial claim
submission has two parts: “Part A, to be filled out by
the claimant, and Part B, the ‘Medical
Professional's Statement,' in which the
claimant's physician must certify the qualifying losses
claimed.” Austin v. United States, 614
Fed.Appx. 198, 200 (5th Cir. 2015); see 38 C.F.R.
§ 9.20(g), (h). Upon receiving the claim, a certifying
official at the Marine Corps will review the submission to
determine whether the claimant “sustained a qualifying
loss.” 38 C.F.R. § 9.20(g); see
Procedures Guide at 50. “If that official approves any
benefits, . . . the private insurance company that
administers the TSGLI program[] [will] pay such
benefits.” Austin, 614 Fed.Appx. at 200. If
the claim is denied, a servicemember may submit an appeal for
first-level review to the Wounded Warrior Regiment's
TSGLI Office (WWR-TSGLI) “within one year of the date
of a denial of eligibility.” 38 C.F.R. § 9.20(i);
see Def.'s SoMF ¶ 19. Following that
determination, servicemembers may submit a further appeal for
second-level review to the TSGLI Appeals Board for the Navy
Council of Review (ABNCR). Procedures Guide at 74. Finally,
if the ABNCR denies their claim, servicemembers may appeal
for third-level review to the BCNR. Id. At each
stage of the appeals process, a denied servicemember receives
a letter informing him of his right to file suit in federal
district court to contest an adverse decision. Id.
at 73-74.
B.
Cloud's Injury and Medical Treatment
Cloud
drove his motor vehicle into a concrete wall near Harahan,
Louisiana, in the early morning hours of March 18, 2011. AR
120-24. Police officers discovered him unconscious behind the
steering wheel, with large lacerations on his head and
injuries to his right leg and hip. AR 121-22. He was
suffering from acute alcohol intoxication and had sustained
an acute fracture of his right femur, a 5-centimeter scalp
laceration, and a concussion. AR 138-39. His broken leg
required surgery. AR 134-36. He was discharged from the
hospital a few days later, with a schedule for receiving
physical therapy. AR 131.
On
March 29, Cloud met with a doctor as part of an initial
consultation for his physical therapy treatment. AR 271. The
doctor's notes from that appointment indicate that Cloud
had “stopped taking pain pills 2 days [before]”
and had “no numbness or tingling.” Id.
Also according to the notes, Cloud was “still using
crutches to get around, although he was told he could
weightbear on [his right leg] fully.” Id.
However, the notes also state that Cloud had “limited
ability to flex his hip [due to] pain, ” “mildly
limited range of motion of the knee [due to] pain, ”
and that he “[was] not able to fully weightbear on his
leg because of pain as well.” Id. The notes
further reflect that Cloud “[was] going to start with
therapy to include gait training, weightbearing as tolerated,
and range of motion.” Id.
On
April 5, about a week later, Cloud attended a physical
therapy appointment. AR 264- 65. In his notes, the
physical therapist described Cloud as suffering from, among
other things, “decreased ROM [range of motion],
decreased joint mobility, decreased soft tissue mobility,
decreased ADL function, decreased balance/proprioception,
decreased strength, decreased weight bearing tolerances,
impaired gait, [and] joint pain.” AR 264. He described
Cloud's rehabilitation goals as “walk[ing] again,
get[ing] back to activities he previously did, [and] get[ing]
in and out of vehicles.” Id. The notes also
indicated that Cloud “ha[d] not had a lot of
pain” and “ha[d] been walking on [his right leg]
a little bit.” Id. Two days later, Cloud had
another physical therapy appointment. AR 266-67. The notes of
that session describe a similar assessment of his injury and
progress recovering. Id.
Another
week passed. And on April 12, Cloud attended another
follow-up appointment with his doctor. AR 269. The
doctor's notes reflect that, at that point, Cloud
“ha[d] no pain” although he had “ha[d] not
taken any pain pills.” Id. The notes confirm
that Cloud could flex his right leg “almost 90
degrees” and could “actually extend[] to -30
degrees.” Id. As part of Cloud's treatment
plan, the notes state that he was “allowed to start
weightbearing in the next 10 days” and was to
“continue with therapy.” Id.
On
April 29 and May 6, Cloud attended additional physical
therapy appointments. AR 274-79. The physical therapist's
notes from those sessions are largely duplicative of those
from earlier ones. Id. On April 29, the therapist
noted that Cloud reported “stiffness in his knee when
bending it.” AR 274. On May 6, he recorded that Cloud
had been “tired after [the] last session but not
necessarily sore.” AR 277.
On May
3, Cloud attended another follow-up appointment with his
doctor. AR 280. The doctor's notes from that appointment
reflect that Cloud's physical therapy “ha[d] been
going very well” and that he “[was] able to bear
some weight on [his right leg] with no pain.”
Id. The doctor indicated that Cloud was
“ambulating without any assistance, ”
“ha[d] full range of motion within his knee joint,
” and was “not taking any pain medication for his
right femur at this point.” Id.
C.
Procedural History
Cloud
filed a claim for TSGLI benefits in March 2014. AR 345-57. He
alleged that his injuries caused him to be unable to perform
the ADLs of bathing, dressing, toileting, and transferring
from March 19, 2011, to April 22, 2011. Id. In Part
B of his claim, a nurse reviewer certified that Cloud
required daily assistance with four ADLs during that period.
AR 356. Without his family's help, she stated, Cloud
“could not have performed these ADLs.”
Id. In further support of Cloud's claim, the
nurse reviewer submitted a summary of his treatment records
that she concluded “demonstrate[d] [Cloud's]
inability to perform [ADLs] for over 30 days.” AR
331-35. Cloud also submitted signed declarations from
himself, his mother, and his brother. AR 336-44. The
statements from his mother and brother, his caregivers from
March 19 to April 22, 2011, describe the physical challenges
Cloud faced following his surgery and the assistance they
provided him with bathing, dressing, toileting, and
transferring during that time. See id.
In July
2014, the Office of Servicemembers' Group Life Insurance
(OSGLI) denied Cloud's application. AR 97-99. The OSGLI
explained that his “claim for the inability to perform
[ADLs] due to traumatic injury . . . was not approved because
medical documentation provided [did] not indicate that [his]
loss met the minimum standards for TSGLI” AR 98. The
letter summarized that:
To qualify, a claimant must have been unable to independently
perform at least two activities of daily living (ADLs) for at
least 30 consecutive days. The claimant is considered
unable to perform an activity independently only if
he or she requires at least one of the ...