United States District Court, District of Columbia
G. Sullivan United States District Judge
Daniel Barker brings this action against the United States of
America, acting by and through the United States Marine Corps
(“USMC”), which is a branch of the Department of
the Navy. Mr. Barker argues that the USMC acted arbitrarily
and capriciously when it denied his Servicemembers' Group
Life Insurance Traumatic Injury Protection
(“TSGLI”) claim and that it should have utilized
a lower standard in reviewing the claim.
before this Court are the parties' cross-motions for
summary judgment. Upon consideration of the parties'
memoranda, the administrative record, the applicable law, and
for the reasons discussed below, the Court
DENIES Mr. Barker's motion and
GRANTS the United States' cross-motion.
the claims in this action center on several statutes and
regulations related to TSGLI, the Court will first discuss
the statutory and regulatory background in detail.
Statutory and Regulatory Background
TSGLI program was established in 2005 to provide short-term
financial assistance to servicemembers and veterans who have
suffered from traumatic injuries. 38 U.S.C. § 1980A. To
receive benefits under the program, a servicemember must show
that his or her injury resulted in a “qualifying loss,
” which created an “inability to carry out”
two or more activities of daily living (“ADLs”).
Id. § 1980A(b)(1), (b)(2)(D). There are six
qualifying ADLs under the program: bathing, continence,
dressing, eating, toileting, and transferring (in or out of a
bed or chair with or without equipment). Id. §
1980A(b)(2)(D)(i)-(vi); 38 C.F.R. § 9.20(e)(6)(vi). For
TSGLI claims based on an inability to carry out ADLs, a
servicemember must establish that he or she was unable to
independently perform the ADLs for a minimum of thirty
consecutive days. 38 C.F.R. § 9.20(f).
TSGLI statute does not define the ability to
“independently perform” an ADL. However, the
Department of Veterans Affairs (“VA”) has issued
guidance on the term in the Traumatic Injury Protection
Under Servicemembers' Group Life Insurance
(TSGLI): A Procedural Guide (“TSGLI Procedures
Guide”). See AR 1238-1321. The TSGLI
Procedures Guide provides that:
A member is considered to have a loss of ADL if the member
REQUIRES assistance to perform at least two
of the six activities of daily living. If the patient is able
to perform the activity by using accommodating equipment
(such as a cane, walker, commode, etc.) or adaptive behavior,
the patient is considered able to independently perform the
AR 1256 (emphasis in original). The Guide goes on to explain
that the term “requires assistance” means that a
servicemember is incapable of performing the ADL without
physical, stand-by, or verbal assistance. Id. at
1257; see id. (defining physical, stand-by, and
to this pending motion are the provisions for the bathing and
dressing ADLs. A servicemember is unable to bathe
independently if he or she requires assistance from another
person “to bathe more than one part of the body or to
get in or out of the tub or shower.” AR 1257.
A servicemember is unable to dress independently if he or she
requires assistance to get and put on appropriate clothing,
socks, or shoes. Id.
length of time a servicemember is unable to independently
perform his or her ADL's is critical in determining the
benefits to which the servicemember is entitled.
Servicemembers are entitled to TSGLI benefits after 30, 60,
90, and 120 consecutive days with a qualifying loss. 38
C.F.R.§ 9.20(f)(20). The TSGLI program will pay $25, 000
for each consecutive thirty-day period of ADL loss, up to
$100, 000. Id. Servicemembers are also entitled to
the first $25, 000 of TSGLI benefits if they can show they
were hospitalized for fifteen consecutive days due to
traumatic injuries other than traumatic brain injuries even
if they do not demonstrate a loss of an ADL for 30
consecutive days. Id.
TSGLI program is administered by the VA, but the service
branches are separately responsible for certifying TSGLI
claims. 38 C.F.R. § 1980A(f); Secretary of the Navy
Instruction (“SECNAVINST”) 1770.4A § 3. In
the Marine Corps, the first level of review-also termed a
“reconsideration” of a claim-is considered by the
Marine Corp's TSGLI office. TSGLI Procedures Guide, AR
1311. The second level of review is the TSGLI Appeals Board
Navy Council of Review Boards (the “CORB”).
Id. The third level of review is the Board for
Correction of Naval Records (the “BCNR” or
Barker, a member of the Marine Corps, suffered injuries to
both of his hands while working as an Ordnance Disposal
Specialist in Afghanistan. AR 0269. His injuries occurred due
to an ordnance explosion, which led to multiple partial
finger amputations. AR 0639-40.
his accident, which occurred on August 20, 2011, Mr. Barker
underwent several surgeries on his hands and fingers and
received treatment from various hospitals over the course of
approximately three weeks. AR 0533-34, 0550, 0639-40, 0746, 0754,
0783-85. He was initially treated at Bastion Role III Medical
Treatment Facility, Germany, and was then transferred to
Landstuhl Regional Medical Center (“LRMC”) on
August 22, 2011. AR 0639-40. At LRMC, he underwent multiple
surgeries. AR 0754, 0783. He was discharged from LRMC during
the first week of September and was transferred to Walter
Reed National Military Medical Center, East Bethesda, MD
(“WRNMMC”). AR 0266, 0746, 1110. He was
discharged from WRNMMC on September 9, 2011. AR 0266.
at WRNMMC, Mr. Barker was treated by an occupational
therapist (“OT”), Peter Gaskins, who made several
notations related to Mr. Barker's developments in using
his hands. AR 1355. On September 6, 2011, Mr. Gaskins noted
that Mr. Barker had “Modified Independence” for
the functional abilities of upper body bathing, lower body
bathing, dressing upper body, and dressing lower body. AR
1330-31. “Modified Independence” is described as
“able to manipulate grasp and carry techniques for item
retrieval and proper use of ADL items to carry out task.
take more than reasonable time to complete task due to
injuries.” Id. He noted that Mr. Barker was
experiencing “ongoing impairments” including
“increased pain and sensitivity, decreased [range of
motion], [and] decreased strength in bilateral hands/digits
impacting independence in ADLs and IADLs.” AR 1355.
September 8, 2011, Mr. Gaskins indicated that Mr. Barker
achieved “Complete Independence.” AR 1357. Mr.
Gaskins anticipated that the discharge setting would include
occupational therapy at home with his wife's assistance
with fine motor tasks. AR 1359. Mr. Barker was treated at
Naval Hospital Camp Lejeune following his discharge from
WRNMMC. On September 26, 2011, OT Shanna Garcia noted that
Mr. Barker was:
[H]aving trouble with nearly all [ADL] functions. His wife is
helping with set-up at home for meals (no knife), he can put
on pants, but buttons and zippers are a struggle, he wears
things that are easy to do. Shower is fine as long as the
containers are open. Ziplocks, jars, bottle top, and packages
are difficult. Not driving yet due to hands and meds.
Shoelaces: 5 minutes per shoe.
AR 0301. On October 4, 2011 and October 13, 2011, separate
reports from two OTs noted that Mr. Barker had a pain level
of 5-6/10 on his left hand and 1-3/10 on his right hand at
rest. AR 0293, 0288. On October 14, 2011, an OT noted that
his pain was 5/10 on average and 8/10 at its worst, and most
of the pain was at the stumps. AR 0285.
period of recovery, Mr. Barker went to the Camp LeJeune Naval
Hospital for treatment on January 6, 2012. AR 0486. While
there, OT John Balsamo noted that Mr. Barker's pain was
5/10 on the right ring finger and his hands. Id. OT
Balsamo noted that Barker “feels stronger, but [the]
lack of sensory discrimination impairs functions.” AR
0488. Mr. Barker was discharged on March 20, 2012. AR 0869.
Original Claim and CORB Review
Barker submitted a TSGLI claim for 15 days of inpatient
hospitalization to the Marine Corps Headquarters. AR 1070.
Shortly after, the Marine Corps approved the claim and
awarded him $25, 000 because he demonstrated that he was
hospitalized for at least 15 days. AR 1110-11. Mr. Barker
later supplemented his claim to include ADL losses of bathing
and dressing; requesting benefits for loss of ADLs totaling
over 90 days (i.e., an additional $50, 000 benefit). AR 1014.
The Marine Corps denied the supplemental claim explaining
that Mr. Barker's medical documentation did not meet the
TSGLI standard for ADL losses which extended to 60
days. AR 1011.
Barker appealed the Marine Corps' decision to the CORB,
and filed a supplemental claim for ADL losses that extended
the originally claimed losses from August 20, 2011 through
January 20, 2012. AR 0860-65. He included several new
documents in his appeal which included OT notes, ...