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Barker v. United States

United States District Court, District of Columbia

September 6, 2019

DANIEL BARKER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         Plaintiff 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.

         Pending 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.

         I. Background

         Because 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.

         A. Statutory and Regulatory Background

          The 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).

         The 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 activity.

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 verbal assistance).

         Relevant 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.

         The 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.

         The 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 “Board”). Id.

         B. Factual Background

         Mr. 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.

         After 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.[1] 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.

         While 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.

         May 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.

         On 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.

         After a 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.

         C. Procedural Background

         1. Original Claim and CORB Review

         Mr. 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.[2] AR 1011.

         Mr. 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, ...


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