MEMORANDUM OPINION
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Congress
created the Servicemembers Group Life Insurance Traumatic
Injury Protection Program-often referred to as the
“TSGLI” Program-in 2005 to provide monetary
assistance to servicemembers who suffer traumatic injuries.
See Pub. L. No. 109-13, § 1032(a)(2), 119 Stat.
231, 257 (2005). Under this Program, servicemembers are
“automatically . . . insured for traumatic injur[ies],
” and any member who suffers a “qualifying
loss” is entitled to payment of between $25, 000 and
$100, 000, depending on “the severity of the qualifying
loss.” 38 U.S.C. § 1980A(a) & (d). The statute
and implementing regulations, in turn, define qualifying
losses as including, among other things, a traumatic injury
other than a traumatic brain injury resulting in the
inability of the servicemember to perform at least two
Activities of Daily Living (“ADLs”) for at least
thirty consecutive days. Id. at § 1980A(b); 38
C.F.R. § 9.20(e)(6) & (f)(20). If the
servicemember's inability to perform at least two ADLs
persists longer than 30 consecutive days under this standard,
the size of the award increases from $25, 000 up to $100,
000-in increments of $25, 000 for each successive 30-day
period up to a total of 120 days. 38 C.F.R. §
9.20(f)(20).
Plaintiff
Steven Marvin Sorkness sustained significant injuries in an
(off-duty) motorcycle accident while he was a member of the
U.S. Army. See Dkt. 1. He applied for, but was
denied, TSGLI benefits and, after exhausting his rights to
administrative appeal, he brought this action seeking
judicial review of the decision of the Army Board for the
Correction of Military Records (“ABCMR”) denying
his claim. See Id. Before Defendant filed a
responsive pleading, however, the parties stipulated to stay
the action and to a voluntary remand to the ABCMR, Dkt. 6,
and the Court agreed, Minute Order (Jan. 8, 2018). On remand,
the ABCMR once again concluded that Sorkness is not entitled
to TSGLI benefits because hr had failed to meet “his
burden of proving by a preponderance of the evidence that he
[had] incurred the loss of [two] or more ADLs for any period
of 30 consecutive days.” AR 507.
In
light of that decision, the Court lifted the stay and set a
schedule for Defendant to certify the administrative record
and for the parties to file cross-motions for summary
judgment. Minute Orders (June 19, 2018). Those motions, Dkt.
11; Dkt. 12, are now before the Court for decision. For the
following reasons, the Court will grant Defendant's
motion for summary judgment and will deny Plaintiff's
cross-motion.
I.
BACKGROUND
On June
18, 2009, Plaintiff was found in a ditch beside Georgia
Highway 30 following a motorcycle accident. AR 14-15. He
apparently lost consciousness after the crash and could not
recall anything about the accident when he was found.
Id. The Georgia State Patrol Trooper who responded
to the accident “stated that he suspected that another
motorist or crossing wildlife may have caused [Plaintiff] to
lose control of his motorcycle.” AR 495.
Plaintiff's injuries included “a subarachnoid
hemorrhage (bleeding inside the brain), facial abrasions,
[and] bilateral hip, neck, back and shoulder injuries.”
Id. A CT scan revealed a non-displaced right sacral
fracture, and Plaintiff was limited in his ability to
“toe-touch” or bear weight for six to eight
weeks. AR 26. Plaintiff continued to receive treatment over
the next several months. AR 44- 50. During that time, he
underwent cervical discectomy and fusion surgery in January
2010. Id.
On
October 20, 2012, Sorkness applied for TSGLI benefits for the
injuries he suffered as a result of the crash. AR 1-13. Under
the TSGLI Program, servicemembers who suffer qualifying
traumatic injuries during-although not necessarily connected
to-their service are entitled to compensation ranging from
$25, 000 to $100, 000. 38 U.S.C. § 1980A; 38 C.F.R.
§ 9.20. The statute prescribes certain qualifying
conditions and delegates authority to the Secretary of
Veterans Affairs to further define “qualifying
losses.” 38 U.S.C. § 1980A(b). Of relevance here,
the implementing regulations specify that a servicemember who
suffers a “[t]raumatic injury, other than [a] traumatic
brain injury, ” that prevents the servicemember from
performing at least two Activities of Daily Living for at
least 30 consecutive days is entitled to payment of $25, 000.
38 C.F.R. § 9.20(f)(20). The amount of the payment then
escalates in increments of $25, 000 if the servicemember is
unable to perform at least two ADLs for at least 60, 90, and
120 consecutive days-up to a maximum payment of $100, 000.
Id. “The term ‘inability to carry out
the activities of daily living'” is defined to
“mean[] the inability to independently perform two or
more of the following six functions: (i) [b]athing[, ] (ii)
[c]ontinence[, ] (iii) [d]ressing[, ] (iv) [e]ating[, ] (v)
[t]oileting[, ] [and] (vi) transferring.” 38 U.S.C.
§ 1980A(b)(2)(D) (quoting id. §
1980A(b)(1)(H)); see also 38 C.F.R. §
9.20(e)(6)(vi).
Plaintiff
claimed that his injuries from the June 2009 motorcycle crash
caused 120 days of continuous inability to perform two ADLs,
specifically bathing and dressing. AR 1-11. In support of
Plaintiff's claim, Dr. Dennis Hopkins, a reviewing
physician, certified he had “not observed the
patient's loss, but . . . had reviewed [his] medical
records.” AR 13. Plaintiff's claim was denied by a
letter dated February 6, 2013. AR 59. The denial letter
explained that, to qualify for TSGLI benefits for a traumatic
injury (other than a traumatic brain injury) a claimant must
demonstrate that he has “been unable to independently
perform at least two [ADLs] for at least 30 consecutive days,
” and it concluded that the “medical
documentation” submitted in support of Plaintiff's
claim “did not support [his] inability to perform two
or more ADLs for at least 30 consecutive days.” AR 59.
Plaintiff
sought reconsideration of that decision on April 25, 2013 and
provided further details supporting his claim. AR 76-78.
Among other things, Plaintiff submitted statements from two
friends. According to the first friend, BB, she and others
had helped Plaintiff with ADLs following the accident. AR
83-84. She explained, in particular, that Plaintiff needed
help “moving in and out of bed, eating, dressing and
bathing;” he needed “someone to drive him to and
from doctor appointments;” and, due to complications
resulting from his surgery, Plaintiff “needed help with
just about everything, eating, dressing, changing bandages,
bathing, in and out of bed and medication.”
Id. The second friend, PS, offered a similar
assessment. He stated that, while Plaintiff was in the
hospital, he needed constant care and that, after he was
released, Plaintiff's friends continued to assist with
his meals and with bathing and driving him to the pharmacy
and doctor appointments. AR 85-86. On July 12, 2013, however,
the U.S. Army Human Resources Command, Special Compensation
Branch, denied Plaintiff's request for reconsideration.
AR 221-22. The denial explained: “The medical
documentation you submitted did not indicate that your
injuries rendered you incapable of performing the ADLs of
bathing and dressing that are covered by TSGLI standards
for 30 consecutive days or greater.” AR 221
(emphasis added).
Plaintiff
appealed that decision on September 13, 2013, AR 236-47, but
the Army denied his appeal, AR 262. That decision once again
found that Plaintiff had failed to provide medical
documentation sufficient to show that Plaintiff's
injuries rendered him “incapable of performing the ADLs
of bathing, continence, dressing, eating, toileting, or
transferring . . . for 30 consecutive days or
greater.” AR 262 (emphasis added). This time the
Army further explained that, if the claimant “is able
to perform the activity by the use of accommodating
equipment/adaptive measures (such as a cane, crutches,
wheelchair, etc.), then the [claimant] is considered able to
independently perform the activity.” Id.
Plaintiff
then sought review before the ABCMR. After reviewing the
factual and procedural background, AR 447-51, the ABCMR
determined that “[t]he evidence presented [did] not
demonstrate the existence of a probable error or injustice,
” and it concluded that “the overall merits of
this case are insufficient as a basis for correction of the
records of the individual concerned, ” AR 446.
Having
exhausted his administrative options, Plaintiff then filed
suit in this Court pursuant to 38 U.S.C. § 5107
(“The district courts of the United States shall have
original jurisdiction of any civil action or claim against
the Untied States founded upon this subchapter.”).
Before the Defendant filed a responsive pleading, however,
the parties stipulated to the stay and to a voluntary remand
of the action to permit the ABCMR to conduct
“additional administrative proceedings.” Minute
Order (Jan. 1, 2018).
On
remand, the ABCMR again denied Plaintiff's claim,
explaining that “[i]n light of the evidence [in the]
record, the applicant has not met his burden of proving by a
preponderance of the evidence that he incurred the loss of 2
or more ADLs for any period of 30 consecutive days.” AR
507. In reaching that conclusion, the ABCMR credited the
evaluation of Plaintiff's medical records provided in a
detailed medical advisory opinion prepared by Colonel Roman
Bilynsky, the Army Review Board Agency's Senior Medical
Advisor. AR 485. According to that assessment, Plaintiff
suffered “limited impairment or impact on [his] ability
to perform ADLs, and [he] was certainly not impaired or
impacted enough to be unable to perform 2 or more ADLs for
15, 30, 60, 90, 120 or more days.” AR 499. Moreover,
although Plaintiff did suffer a hairline fracture to this
“right sacral alae, ” he suffered no
“cognitive or intellectual impairment, ” and,
according to Col. Bilynsky, “[t]he medical records note
no significant difficulties with dressing, bathing, eating,
continence, toileting, or transferring.” Id.
In sum, the evidence demonstrated that by July 24, 2009,
Plaintiff was sufficiently recovered to return to duty-and
thus, presumably, was not unable to perform two ADLs-and
that, although Plaintiff suffered lower back pain and
impairment of his mobility from June 18 to July 24, 2009, he
was not so debilitated that he was unable to perform two ADLs
for 30 consecutive days during that period. AR 505.
The
ABCMR also found Plaintiff's evidence to the contrary
insufficient. His two lay witnesses, BB and PS, failed to
identify two or more ADLs that Plaintiff was unable to
perform for 30 consecutive days as a result of the motorcycle
accident. AR 506-07. Although BB described difficulties
Plaintiff encountered after undergoing neck surgery, the
ABCMR noted that the surgery was “performed to address
degenerative problems in his neck” and that “a
degenerative condition is virtually the definitional opposite
of one incurred from a traumatic force.” AR 506.
Finally, the ABCMR found that “[t]he opinion rendered
by [Plaintiff's] certifying official, ” Dr.
Hopkins, was not based on Dr. Hopkins's examination of
Plaintiff-but, rather, on his review of ...