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Cloud v. United States

United States District Court, District of Columbia

April 30, 2019

BENNIE CLOUD, Plaintiff,



         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 “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 ...

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