Hensley v. United States ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN HENSLEY,
Plaintiff,
v. Civil Action No. 16-1389 (TJK)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
Plaintiff John Hensley (“Hensley”), a former Staff Sergeant in the West Virginia Air
National Guard, suffered a serious shoulder injury when he fell from an aircraft in 2008. In
2013, he submitted a claim for $100,000 under an insurance program for members of the military
who have suffered traumatic injuries, Servicemembers’ Group Life Insurance Traumatic Injury
Protection (“TSGLI”). The Air Force denied Hensley’s claim, concluding that Hensley had not
shown that his injury qualified him for TSGLI benefits. Hensley sought review before the Air
Force Board for Correction of Military Records (the “AFBCMR” or “Board”), which declined to
grant his application. Hensley then brought this lawsuit against the United States (the
“Government”), asserting that the AFBCMR’s decision should be reversed on the ground that it
was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 551 et seq.
Hensley and the Government have cross-moved for summary judgment. See ECF No. 9
(“Pl.’s Mot.”); ECF No. 13 (“Def.’s Cross-Mot.”); see also ECF No. 15 (“Pl.’s Reply”); ECF
No. 17 (“Def.’s Reply”). For the reasons explained below, Hensley’s motion will be granted in
part and denied in part, and the Government’s motion will be denied.
Background
A. The TSGLI Program and Claims Process
Members of the U.S. armed services are automatically enrolled in the Servicemembers’
Group Life Insurance program, although they may opt out. See 38 U.S.C. § 1967; Ridgway v.
Ridgway, 454 U.S. 46, 50-54 (1981) (describing origins of program). TSGLI is an automatic
rider to that insurance and covers traumatic injury. See 38 U.S.C. § 1980A; Austin v. Prudential
Ins. Co. of Am., No. SA-12-CA-473, 2013 WL 12094176, at *2 (W.D. Tex. Apr. 5, 2013).
“To receive TSGLI benefits, a service member must have suffered a ‘qualifying loss.’”
Austin v. United States, 614 F. App’x 198, 200 (5th Cir. 2015) (quoting 38 U.S.C.
§ 1980A(a)(1)). By regulation, the government has promulgated a schedule of losses describing
the types of injuries that are covered. 38 C.F.R. § 9.20(f). They include traumatic non-brain
injuries “resulting in an inability to perform at least 2 Activities of Daily Living (ADL).” Id.
§ 9.20(f)(20). “The statute recognizes six ADLs: bathing, continence, dressing, eating, toileting,
and transferring (in or out of a bed or chair).” Austin, 614 F. App’x at 200 (citing 38 U.S.C.
§ 1980A(b)(2)(D)). “TSGLI will pay $25,000 for each consecutive 30-day period of ADL loss,
up to a maximum of $100,000 for 120 consecutive days.” Id.
The Fifth Circuit has summarized the TSGLI claims process as follows:
To apply for benefits, a plan participant must file a form SGLV
8600 with his service branch. This form 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. . . .
The claim is then reviewed by a certifying official at the claimant’s
branch of service. If that official approves any benefits, he
instructs . . . the private insurance company that administers the
TSGLI program[] to pay such benefits and to notify the claimant if
any part of the claim has been denied.
2
Id. at 200. Within a year of the initial decision, service members may appeal in writing “to the
office of the uniformed service identified in the decision regarding the member’s eligibility for
the benefit.” 38 C.F.R. § 9.20(i)(1).
Benefits decisions may be further appealed to the relevant board for correction of military
records, such as the AFBCMR. See, e.g., Blackwood v. United States, 187 F. Supp. 3d 837, 839
(W.D. Ky. 2016). Such boards may act “to correct an error or remove an injustice.” 10 U.S.C.
§ 1552(a)(1). In AFBCMR proceedings, the “applicant has the burden of providing sufficient
evidence of material error or injustice.” 32 C.F.R. § 865.4(a). The AFBCMR panel appointed to
hear the case may request advisory opinions and information from other Air Force officials, in
which case the applicant will be given the opportunity to respond. See id. § 865.4(a)(1), (b).
The panel may also, in its discretion, order a hearing or request additional information from the
applicant. See id. § 865.4(a)(2), (d).
Dissatisfied applicants for TSGLI benefits may also seek review in federal district court.
District courts have original jurisdiction to hear civil actions against the United States relating to
TSGLI. See 38 U.S.C. § 1975.
B. Hensley’s Injury and Medical Treatment
On February 20, 2008, Hensley slipped on an icy ladder while inspecting an aircraft and
fell head-first approximately 15 feet.1 AR 2 [2], 80 [49], 553 [80], 659 [87], 778 [92]. Hensley’s
most serious injuries were to his left shoulder: he suffered a fractured humerus, a torn labrum,
and possible ligament damage. AR 2 [2], 80 [49], 778 [92]. He received prompt medical
attention at a local hospital, where he was given a sling and advised to consult an orthopedist.
1
The parties have jointly filed the relevant excerpts from the administrative record on ECF.
ECF No. 18-1 (“AR”). When citing the record, the Court will provide the page number as it
appears at the bottom of the page, followed by the page number generated by ECF in brackets.
3
AR 2 [2], 70 [42], 82 [51], AR 553 [80]. At that time, he was ordered to remain off work for a
week and to do no lifting with his left arm. AR 82 [51]. On February 25, 2008, he saw the
orthopedist, who provided him with a shoulder immobilizer, prescribed him painkillers, and
concluded that he would likely have to remain off work for three months. AR 553-54 [80-81].
In March, Hensley began physical therapy three times per week. AR 545 [82]. It appears that
Hensley ultimately returned to work on April 21, 2008, but only on “light duty” (with limitations
on activities such as lifting and overhead work) as recommended by his orthopedist. AR 75 [44],
83 [52], 540 [78], 659 [87].
Hensley’s medical and physical-therapy records show that he continued to suffer pain and
a limited range of motion in his left shoulder over the next six months. For example, on May 19,
Hensley’s therapist reported that his shoulder “is still very weak & pain in all planes of motion.”
AR 492 [74]. The next day, the orthopedist reported that Hensley’s left shoulder “show[ed]
much better range of motion,” and that Hensley was “[s]till having pain, but overall doing okay.”
AR 83 [52]. On June 30, Hensley’s therapist noted that he had “numbness” in his left hand. AR
498 [76]. Hensley also reported “pain and weakness w/ overhead activities” and “difficulty w/
gripping items.” Id. On August 19, Hensley said that “numbness & tingling in arm & shoulder
bother him,” that he had pain when reaching overhead, and that he was “unable to grip onto
things.” AR 76 [45]. Nonetheless, his orthopedist ordered him discharged from physical therapy
at that point. Id.
The records contain a few explicit references to Hensley’s ability to perform ADLs. A
note from his physical therapist, dated April 9, 2008, stated that he was “still limited at home w/
self care and home care ADLs.” AR 495 [75]. On November 18, 2008, Hensley underwent a
“functional capacity evaluation” with a physical therapist at the request of his orthopedist, who
4
wanted to determine whether Hensley could be released from light duty. AR 68 [40], 468 [56].
Hensley reported that he continued to avoid using his left arm due to pain. AR 476 [64]. In a
written questionnaire, he checked “no” when asked if he needed “regular assistance with
dressing.” AR 377 [55]. He added, “well I use slip on shoes so I don’t need help, but it is tuff to
do my work boots.” Id. The official report of the evaluation, dated December 11, 2008,
recorded further comments from Hensley on dressing and bathing:
I have some difficulty but I can do it. Getting in and out of the
deep whirlpool tub which I use every day because it makes the
pain better (no grab bars), getting work boots on because I have to
tie them and tuck the strings in (up to mid-calf). My son will often
help me get them off at the end of the day.
AR 472 [60]. Hensley also reported that he could not yet do many household chores such as
mowing the lawn or vacuuming. Id. The therapist recommended that Hensley remain on light
duty due to his poor balance when using a ladder and his inability to reach overhead. AR 471
[59].
Hensley continued to experience pain after November 2008. In June 2009, he had
surgery to repair the torn labrum in his shoulder. AR 764 [91].
C. Procedural History
In April 2013, Hensley applied for $100,000 in TSGLI benefits, claiming that his
shoulder injury had left him unable to dress and bathe himself without assistance for at least 120
days, from February 20, 2008, to August 20, 2008. AR 2 [2], 37-39 [21-23]. His application
included a signed certification of his claim by a physician, Dr. Hopkins. AR 32-39 [16-23]. Dr.
Hopkins indicated that he had not personally observed Hensley’s injuries, but had instead
reached his conclusions based on a review of Hensley’s medical records. AR 39 [23].
On June 27, 2013, the insurance company that administers the TSGLI program notified
Hensley by letter that his claim had been denied. AR 41 [24]. The letter explained that “the
5
medical documentation provided does not indicate that your loss met the standards for TSGLI,”
and that “a claimant must have been unable to independently perform at least two activities of
daily living (ADLs) for a period of 30 consecutive days.” Id. The letter further explained that an
applicant is unable to perform an ADL “independently” if he requires either “physical
assistance,” “stand-by assistance,” or “verbal assistance” to do so. Id. The letter explained that
Hensley could appeal the decision to “AFPC/DPFCS.” AR 41-42 [24-25].2
Hensley appealed, and received a letter from “AFPC/DPFD” denying his appeal on
October 10, 2013. AR 44 [27]. The letter explained: “We re-examined your claim and
additional documents provided with your appeal package. Unfortunately, the medical
documentation does not support that you were unable to perform at least two of the six activities
of daily living (ADLs) for at least 30 consecutive days.” Id. The letter further explained that
Hensley could appeal again to the AFBCMR or file suit in federal court. Id.
Hensley then appealed to the AFBCMR. In March 2014, he filed a brief arguing that an
error or injustice existed because (1) the denial of benefits was arbitrary in light of the medical
evidence and the signed doctor’s statement supporting Hensley’s claim and (2) the Air Force had
failed to adequately advise Hensley of the reason for the denial. AR 16-17 [10-11].
The AFBCMR sought an advisory opinion from “AFPC/DPFC” (apparently the same
office that had handled Hensley’s initial appeal). AFPC/DPFC issued a memorandum from
Stephen T. Rose dated May 15, 2014 (the “Rose Memo”). AR 778-81 [92-95]. The Rose Memo
laid out the standard for awarding TSGLI benefits, and then relayed discussions with the doctors
who had reviewed Hensley’s initial application and earlier appeal. AR 778-80 [92-94]. Those
2
The Court notes that AFPC/DPFCS is one of several Air Force acronyms in the record that the
parties have regrettably not bothered to explain in their briefing. “AFPC” appears to refer to the
Air Force Personnel Center. See AR 778 [92].
6
doctors were not named in the Rose Memo. See id. The doctor who had reviewed the initial
application opined that Hensley had shown loss of only one ADL (the ability to bathe himself)
and only for 60 days. AR 779 [93]. The doctor noted that Hensley “returned to work within one
week after the accident and beginning 21 April could use his left (non-dominant) arm for
minimal activities.” Id. He further reasoned that “therapy notes mention limitations with self-
care ADLs, but the ROM [range-of-motion] measurements and treatment (sling only with no
mention of movement restrictions) suggest that he had the capacity to dress himself.” AR 779-
80 [93-94].
The second doctor, who had reviewed Hensley’s first appeal, reached a similar
conclusion:
The SM’s [service member’s] legal representative . . . contends
that having one arm limited in function made it impossible for SM
to dress himself without assistance. There is no direct evidence in
the medical record that the SM could not dress himself due to
functional limitations in his non-dominant left arm. [The legal
representative] cites a note from physical therapy in April 2008
that stated “patient is still limited at home with self care and
ADLs.” This is a non-specific comment and there is no evidence
in the medical records provided that SM could not perform some
or all ADLs without assistance. “Still limited” could just as easily
mean that it took the SM longer to perform some or all ADLs. By
the time this comment was made in the medical record, the SM had
already been performing light duty at work for 2 months. [The
legal representative] also insists the SM could not put on his shirt
and pants due to lack of motion, limitations, weakness, and the
inability to perform overhead activities with his left arm (such as
SM pulling a shirt over his head.) All of that disregards the fact
that the SM had a perfectly good right arm and the SM is right-
handed. SM had persistent limitations in range of motion in the
left shoulder as well as weakness of grip and these symptoms
extended well past 20 August 2008 but they did not create a
medical necessity for assistance with dressing AND bathing for
even 30 days, let alone the 120 days which SM claims.
7
AR 780 [94]. The second doctor also addressed Dr. Hopkins’ certification, noting that Dr.
Hopkins “indicated he DID NOT observe the SM’s loss and I assume he had no more
information about SM’s case than what was in the medical records submitted for review.” Id.
After summarizing these conversations, the Rose Memo provided the following analysis:
On 21 Apr 2014, we received Staff Sergeant Hensley’s AFBCMR
application asking that his TSGLI claim be approved. The burden
of proof is on Staff Sergeant Hensley to demonstrate he suffered a
scheduled loss as a result of his traumatic event. After reviewing
the original claim and appeal, our position remains firm that Staff
Sergeant Hensley does not meet TSGLI criterion for ADL loss due
OTI for any payable threshold. It is reasonable to believe that
having an arm in a sling may make bathing and dressing more
difficult; however, it is also reasonable to believe that Staff
Sergeant Hensley would be able to use the uninjured arm to
perform the basic functions albeit at a slower pace.
AR 781 [95]. Based on that analysis, the Rose Memo recommended that the AFBCMR deny
Hensley’s appeal. Id.
In June 2014, Hensley filed a letter in response to the Rose Memo. AR 783-84 [97-98].
In the letter, Hensley interpreted the memo as concluding “that the medical information was not
clear enough that SSGT Hensley in fact did suffer significant ADL loss.” AR 783 [97]. In order
to “clarify” that issue, Hensley submitted an affidavit from his wife dated June 18, 2014. AR
783 [97], 785 [99]. In the affidavit, Hensley’s wife stated that, “[d]uring the time period after his
injury, I provided John both stand by and physical assistance with bathing, washing hair,
dressing, and undressing.” AR 785 [99]. The affidavit stated that Hensley “also needed
assistance” sitting up and using the bathroom. Id. The affidavit further stated that “Dr. Hopkins
[sic] conclusion that John needed assistance with ADLs from at least between February, 20, 2008
and August 20, 2009 [sic] is consistent with what I did for John, and witnessed as John’s
caretaker.” Id. His wife concluded by noting that, “[t]o this day, John still needs my help in
8
performing some tasks.” Id. Hensley offered to make his wife available for testimony before the
AFBCMR. AR 783 [97].
In March 2015, the AFBCMR denied Hensley’s appeal. The Board’s record of
proceedings summarized Hensley’s arguments, some of the key facts in the record, the Rose
Memo, and Hensley’s response. AR 2-6 [2-6]. The Board then concluded as follows:
Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice. After a thorough review of the
available evidence and the applicant’s complete submission we are
not persuaded the applicant’s TSGLI application should be
approved. We note the applicant’s spouse provides a sworn
affidavit stating the applicant loss [sic] 120 days of ADL and still
requires assistance due to the ongoing nature of his injuries.
However, in our opinion, substantial evidence has not been
presented to successfully refute the assessment of his case by the
Air Force Office of Primary Responsibility (OPR). Therefore, we
agree with the opinion and recommendation of the Air Force OPR
[i.e., the Rose Memo] and adopt the rationale expressed as the
basis for our decision that the applicant has failed to sustain his
burden of proof of either an error or an injustice. Absent
persuasive evidence that he was denied rights to which he was
entitled, we find no basis to recommend granting the relief sought
in this application.
AR 5-6 [5-6]. The AFBCMR further concluded that a hearing would not materially advance its
understanding of the facts presented on the record. AR 6 [6].
In June 2016, Hensley filed the instant lawsuit. He alleges that the AFBCMR’s decision
was arbitrary and capricious insofar as it:
did not provide justification as to why the greater weight of the
evidence did not support [Hensley’s] eligibility for TSGLI
benefits; give any reasons why the certifying medical
professional’s certification was not credible; address the Affidavit
of Ms. Hensley attesting to her observations and provision of
assistance to [Hensley] during his recovery; or provide reasonable
or substantial evidence or medical opinion contradicting
[Hensley’s] claim for TSGLI benefits.
ECF No. 1 ¶ 35. The parties subsequently filed the instant cross-motions for summary judgment.
9
Standard of Review
A court must grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “[W]hen a party seeks review of agency action under the APA, the district
judge sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083
(D.C. Cir. 2001). “The ‘entire case’ on review is a question of law.” Id. “Summary judgment
thus serves as the mechanism for deciding, as a matter of law, whether the agency action is
supported by the administrative record and otherwise consistent with the APA standard of
review.” Alston v. Lew, 950 F. Supp. 2d 140, 143 (D.D.C. 2013).
“Under the Administrative Procedure Act, a court may set aside an agency’s final
decision only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’” Ams. for Safe Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 2013) (quoting 5 U.S.C.
§ 706(2)(A)). “[I]n judicial review of agency action, weighing the evidence is not the court’s
function. Rather, the question for the court is whether there is ‘such relevant evidence as a
reasonable mind might accept as adequate to support’ the agency’s finding . . . .” United Steel,
Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. PBGC,
707 F.3d 319, 325 (D.C. Cir. 2013) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966)). Courts “will not disturb the decision of an agency that has examined the relevant data
and articulated a satisfactory explanation for its action including a rational connection between
the facts found and the choice made.” Ams. for Safe Access, 706 F.3d at 449 (alterations and
internal quotations omitted). The agency must provide only a “brief statement” of its decision,
Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (quoting 5 U.S.C. § 555(e)),
and courts will “uphold a decision of less than ideal clarity if the agency’s path may reasonably
be discerned,” id. at 1351-52 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
10
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). However, the court “may not supply a reasoned basis
for an agency action that the agency itself did not give in the record under review.” Pierce v.
SEC, 786 F.3d 1027, 1034 (D.C. Cir. 2015). Moreover, “an agency’s failure to respond
meaningfully to objections raised by a party renders its decision arbitrary and capricious.” PSEG
Energy Res. & Trade LLC v. FERC, 665 F.3d 203, 208 (D.C. Cir. 2011) (alterations and internal
quotations omitted).
In this Circuit, decisions by boards for correction of military records are typically
reviewed “under an ‘unusually deferential’ application of the arbitrary or capricious standard.”
Maneely v. Donley, 967 F. Supp. 2d 393, 401 (D.D.C. 2013) (quoting Kreis v. Sec’y of Air
Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)). This particularly deferential standard stems from
statutory language providing that the Secretary of each service branch “may correct any military
record . . . when the Secretary considers it necessary to correct an error or remove an injustice.”
10 U.S.C. § 1552(a)(1) (emphasis added); see Kreis, 866 F.2d at 1513-15. Given this language,
“[p]erhaps only the most egregious decisions may be prevented.” Kreis, 866 F.2d at 1515.
Courts have reasoned that this standard is further justified because “courts are particularly unfit
to review the substance of military personnel decisions.” Ey v. McHugh, 21 F. Supp. 3d 49, 55
(D.D.C. 2014). Courts have thus applied the “unusually deferential” standard to cases involving
personnel decisions based on medical evidence. See Maneely, 967 F. Supp. 2d at 400-01.
However, courts have held that this deferential standard, while warranted in “a traditional
military personnel matter,” is not always appropriate. Remmie v. Mabus, 898 F. Supp. 2d 108,
118-19 (D.D.C. 2012). In particular, when deciding legal issues regarding whether an agency
has properly adhered to its procedures, courts have afforded no more deference than they do
when reviewing the decisions of civilian agencies. See id.
11
As the Government notes, no court in this Circuit has addressed whether the unusually
deferential standard should apply when reviewing decisions by boards for correction of military
records in cases involving claims for TSGLI benefits. See Def.’s Cross-Mot. at 4. Hensley has
argued that TSGLI decisions should not receive unusually deferential review, and the
Government has agreed, requesting no greater deference than that afforded by the traditional
arbitrary-and-capricious standard. See Pl.’s Mot. at 4; Def.’s Cross-Mot. at 4-6. Because neither
party has suggested that the Court should apply the unusually deferential standard in this case,
the Court will apply the traditional standard of review.
Analysis
Hensley makes a number of arguments for why the AFBCMR’s decision was arbitrary
and capricious. These arguments are largely aimed at the Rose Memo, whose conclusions the
AFBCMR adopted as its own. Specifically, Hensley argues that the Rose Memo improperly
relied on the opinions of unnamed doctors, see Pl.’s Mot. at 11, misapplied the standard for
awarding TSGLI benefits by imposing a requirement of “medical necessity,” see id. at 11-13,
relied on speculation and disregarded the medical evidence in the record and Dr. Hopkins’
certification, see id. at 9-10, and failed to consider Hensley’s wife’s affidavit, see id. at 13; Pl.’s
Reply at 1-3. The Court will consider these arguments in turn.
“As a preliminary matter, the Board did nothing improper by relying on an advisory
opinion to render its decision.” McDonough v. Stackley, 245 F. Supp. 3d 1, 5 (D.D.C. 2017); see
Roberts v. United States, 741 F.3d 152, 158-59 (D.C. Cir. 2014); Jackson v. Mabus, 56 F. Supp.
3d 1, 8-9 (D.D.C. 2014). Rather, boards routinely adopt such advisory opinions, and may do so
provided that the opinions themselves are not arbitrary and capricious. See McDonough, 245 F.
Supp. 3d at 5.
12
Hensley’s first two arguments, that the Rose Memo improperly relied on unnamed
doctors’ opinions and wrongly imposed a requirement of “medical necessity,” are easily
disposed of. “It is a hard and fast rule of administrative law, rooted in simple fairness, that issues
not raised before an agency are waived and will not be considered by a court on review.”
Wallaesa v. FAA, 824 F.3d 1071, 1078 (D.C. Cir. 2016) (emphasis omitted) (quoting Nuclear
Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004)), cert. denied, 137 S. Ct. 389
(2016). Hensley had the opportunity to raise both of these objections to the Rose Memo but did
not do so. See AR 782-86 [96-100]. The AFBCMR’s decision cannot be deemed arbitrary and
capricious for failing to address arguments that Hensley never made.
In any event, these two arguments do not appear to hold water. Hensley has cited no
authority for the proposition that a board for correction of military records must identify its in-
house medical experts by name in an advisory opinion summarizing their views. Nor does the
argument regarding “medical necessity” have any merit. One of the doctors in the Rose Memo
concluded that Hensley had not shown “a medical necessity for assistance with dressing AND
bathing for even 30 days.” AR 780 [94]. Hensley argues that the doctor thereby imposed a new
standard of “medical necessity” in the sense of “something ordered by a medical doctor, like a
prescription.” Pl.’s Mot. at 11. The Court is not persuaded. Hensley does not dispute that an
applicant must show that he “required” assistance with ADLs to receive TSGLI benefits; indeed,
he sought to meet this standard before the agency. See AR 20 [14]. It is only logical that a
doctor reviewing Hensley’s medical records would characterize a necessity arising from his
injury as “medical necessity.” The statement thus merely represents one doctor’s application of
the appropriate standard.
13
Hensley further argues that the Rose Memo improperly disregarded the medical evidence
in the record, as well as Dr. Hopkins’ statement, and instead relied on “speculation.” See Pl.’s
Mot. at 9-10. As an initial matter, Hensley nowhere suggests that the doctors who reviewed his
earlier application did not have all of the relevant medical records he ultimately submitted to the
AFBCMR for review. Moreover, the Rose Memo’s conclusions—that the medical records do
not directly show that Hensley required assistance to bathe and dress himself, and that he could
have continued to do so using his uninjured right arm, see AR 781 [95]—appear to have at least
some evidentiary support in the medical records.3 And as other courts have held in TSGLI cases,
the AFBCMR was justified in attaching little or no weight to Dr. Hopkins’ certification for the
very reason stated by the unnamed doctors in the Rose Memo: that it was made years after the
injury on the basis of the medical records alone, not first-hand knowledge. See Coker v. United
States, No. 3:15-cv-202 (JHM), 2016 WL 7242727, at *6 (W.D. Ky. Dec. 14, 2016); AR 780
[94]. Therefore, this argument, on its own, would likely not be enough to conclude that the
AFBCMR’s decision was arbitrary and capricious.
3
The Court notes a potential error in the Rose Memo that arguably draws its persuasiveness into
question. One of the unnamed doctors stated that Hensley “had already been performing light
duty at work for 2 months” by April 9, 2008, when his physical therapist reported that he was
“still limited at home with self care and ADLs.” AR 780 [94]. Similarly, the other doctor stated
that Hensley had returned to work one week after the accident. See AR 779 [93]. Both
statements appear to be incorrect, because Hensley seems to have returned to work on April 21,
2008, two months after the injury and after the date of the physical therapist’s report. See AR
495 [75], 540 [78]. It is possible that these statements reflect an incomplete review of the record:
Hensley was initially ordered to stay off work for only a week but appears to have subsequently
been ordered to stay off work for a longer period of time. See AR 82 [51], 540 [78], 553-54 [80-
81]. Nonetheless, Hensley overlooked this potential error both before the agency and in his
briefing on summary judgment. Because the parties have not briefed the issue, the Court will not
conclude on this basis that the AFBCMR acted arbitrarily in adopting the Rose Memo.
14
Hensley is on firmer ground, however, when he claims that the advisory opinion failed to
address his wife’s affidavit. See Pl.’s Mot. at 13; Pl.’s Reply at 1-3. An advisory opinion, like
any agency decision, is arbitrary and capricious if it fails to address meaningful objections that
have been put before the agency. PSEG Energy, 665 F.3d at 208. As a corollary, it is arbitrary
and capricious for an agency to adopt an advisory opinion that addresses only the arguments and
evidence contained in an applicant’s prior submissions if the applicant has since presented new
arguments or evidence. See McDonough, 245 F. Supp. 3d at 5-7.
The Rose Memo obviously did not consider the affidavit of Hensley’s wife, which
Hensley submitted in response to the memo.4 Therefore, the AFBCMR had to grapple with that
new evidence and could not rely on the Rose Memo to do so. The AFBCMR’s decision
addressed the affidavit as follows: “We note the applicant’s spouse provides a sworn affidavit
stating the applicant loss [sic] 120 days of ADL and still requires assistance due to the ongoing
nature of his injuries. However, in our opinion, substantial evidence has not been presented to
successfully refute the assessment of his case by the Air Force Office of Primary Responsibility
(OPR).” AR 5 [5]. The issue is whether those two sentences provide a “rational connection
between the facts found and the choice made.” Ams. for Safe Access, 706 F.3d at 449. Hensley
argues that they do not, and that the AFBCMR failed to justify disregarding the affidavit. See
Pl.’s Mot. at 10, 13. He cites cases holding that such “caregiver statements” are significant
4
The Court also notes that neither the AFBCMR’s decision nor the Rose Memo addressed
Hensley’s argument that the Air Force’s earlier decisions, in addition to being substantively
incorrect, had not adequately explained their reasoning. See AR 2-6 [2-6], 16-17 [10-11], 778-81
[92-95]. But Hensley has not resumed that argument in his briefing to this Court, and so the
Court has no basis to conclude that this was a nonfrivolous argument that the Board was
obligated to address.
15
evidence and must be addressed in TSGLI administrative proceedings. Id. at 13 (citing
Koffarnus v. United States, 175 F. Supp. 3d 769, 778-79 (W.D. Ky. 2016)).
The Government offers two reasons why the AFBCMR’s treatment of the affidavit was
proper. First, the Government argues, the AFBCMR did in fact weigh all the relevant evidence;
it simply concluded that the affidavit, “even coupled with [Hensley’s] other submissions,” did
not “overcome the contents of the medical records generated contemporaneously with the 2008
injury.” Def.’s Cross-Mot. at 23. Second, according to the Government, the Board could have
given the affidavit no weight at all because it was “untrue” and “fraudulent.” Id. The
Government points to several documents in the record suggesting that Hensley was in fact
separated from his wife and in a relationship with another woman while he was recovering from
the accident in 2008. See id. at 25 (citing AR 231 [53], 553 [80], 660 [88]). The Government
infers from those documents that Hensley’s wife was not in a position to make the observations
set forth in her affidavit and must have lied. See id. at 23-26. Thus, the Government argues, the
Board had a “rational basis” for disregarding the affidavit. See Def.’s Reply at 3-4.
The problem for the Government is that it is not enough for there to be some plausible
basis for the Board’s decision; the Board must express its reasons for reaching that decision.
Courts will, of course, “uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Amerijet, 753 F.3d at 1351-52. Thus, courts have been willing to
conclude that an agency “implicitly” considered and rejected evidence it did not “explicitly
address” where that evidence was obviously of no value. Roberts, 741 F.3d at 159. And courts
have affirmed decisions by boards for correction of military records even when those decisions
were “thinner than [they] should have been.” Jackson v. Mabus, 808 F.3d 933, 938 (D.C. Cir.
2015). But courts may not “supply a reasoned basis for an agency action that the agency itself
16
did not give in the record under review.” Pierce, 786 F.3d at 1034. Thus, when boards for
correction of military records have rejected key evidence that, if true, would clearly establish the
applicant’s entitlement to relief, courts have been unwilling to infer reasons that the boards did
not give. See Haselwander v. McHugh, 774 F.3d 990, 999-1000 (D.C. Cir. 2014). And an
agency may not provide conclusory statements in place of genuine reasoning, because
“[c]onclusory explanations for matters involving a central factual dispute where there is
considerable evidence in conflict do not suffice to meet the deferential standards of [judicial]
review.” AT&T Wireless Servs., Inc. v. FCC, 270 F.3d 959, 968 (D.C. Cir. 2001).
The Court cannot discern from the conclusory statements in the record why the Board
discounted the affidavit of Hensley’s wife, which if fully credited would establish his claim for
TSGLI benefits. Nothing in the AFBCMR’s decision suggests that it found the affidavit to be
fraudulent. The AFBCMR made no findings of fact about the affidavit’s credibility; it merely
summarized the affidavit’s contents. See AR 5 [5]. And the AFBCMR’s decision does not
mention any of the record evidence on which the Government now relies to argue that the
affidavit was fraudulent (that is, the documents suggesting that Hensley and his wife were
separated in 2008). See AR 2-6 [2-6]. Nor did the Board refer to any other record evidence
suggesting that the affidavit, even if not intentionally dishonest, should be given limited weight.
See id. This Court may not supply the reasons for a credibility finding that the AFBCMR never
even hinted at.
The D.C. Circuit’s decision in Haselwander is instructive. There, a veteran who had
served in Vietnam sought to correct his medical records, which did not reflect that he had been
wounded in action and thus made him ineligible to receive the Purple Heart. See 774 F.3d at
991. In support of his application, he provided contemporaneous photographs of his medical
17
treatment and a list of references who would corroborate his story. See id. After the board for
correction of military records denied his initial application, he moved for reconsideration and
provided additional evidence: a letter from another veteran corroborating his story and official
reports of the events on the day he was wounded. See id. at 992. The board noted that “letters of
support . . . clearly state that the applicant was wounded in action,” but concluded there was
insufficient evidence to support his claim because there was “no available medical record to
corroborate the photograph.” Id. (emphasis omitted). The D.C. Circuit held that the board’s
reasoning defied logic: the entire purpose of the plaintiff’s application was to correct the
allegedly deficient medical records, yet the board had failed to explain why the evidence
submitted was insufficient to warrant a correction. See id. at 992-93. The court noted that the
board had “never found that any of the evidence submitted by [the plaintiff] lacked credibility.”
Id. at 999. Moreover, the board had stated its conclusion that the evidence was insufficient in
“boilerplate” language that merely parroted the relevant legal standard. Id.
This case has many parallels with Haselwander. The AFBCMR adopted the reasoning of
the Rose Memo, which had concluded—based on the unnamed doctors’ review of Hensley’s
medical records—that it was “reasonable to believe that Staff Sergeant Hensley would be able to
use the uninjured arm to perform the basic functions albeit at a slower pace.” AR 781 [95]. But
that conclusion was based in part on the doctors’ reasoning that there was “no direct evidence in
the medical record that [Hensley] could not dress himself” and that Dr. Hopkins’ certification
was unpersuasive because he lacked first-hand knowledge of Hensley’s medical treatment. AR
780 [94]. As in Haselwander, the critical question before the Board was why the additional
direct evidence provided—here, the affidavit of Hensley’s wife—did not adequately fill the gap
that the Board had identified in the medical records. The AFBCMR, like the board in
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Haselwander, provided a summary of the affidavit that made its significance clear: if true, it
would entitle Hensley to the relief he sought. See AR 5 [5]. Nonetheless, like the board in
Haselwander, the AFBCMR failed to engage with that evidence in a meaningful way.
Of course, there may well be a good reason for the Board to find that Hensley’s wife was
lying; or that her memory was unreliable six years after the fact; or that even if the affidavit was
mostly true and Hensley’s wife had in fact assisted him with bathing and dressing as she
claimed, the medical records still compelled the conclusion that her assistance was not actually
required because Hensley could have performed those tasks on his own, albeit more slowly. But
instead of pausing to make any such finding, the AFBCMR—again, like the board in
Haselwander—skipped ahead to conclude, in boilerplate language, that “substantial evidence has
not been presented to successfully refute the assessment of his case by the Air Force Office of
Primary Responsibility.” AR 5 [5].5
In short, the AFBCMR’s decision “omitted the critical step—connecting the facts to the
conclusion.” Dickson v. Sec’y of Def., 68 F.3d 1396, 1405 (D.C. Cir. 1995). Instead, its analysis
consisted of a conclusory statement “without providing an account of how it reached its results.”
Id. For that reason, the Board “has not adequately explained the basis for its decision.” Id. The
Court therefore concludes that the Board’s decision was arbitrary and capricious.
While the Court will grant Hensley’s motion to the extent he seeks remand to the Board,
it will deny his motion to the extent he seeks an instruction that he be awarded the full amount of
5
Moreover, it is unclear whether this was even the right boilerplate. Neither party has pointed
the Court to any authority that describes the AFBCMR’s standard of decision as requiring
applicants to show “substantial evidence . . . to successfully refute” the decision of the relevant
Air Force office. At the same time, Hensley has not argued that this sentence misstated the
relevant standard of decision, and so the Court does not rely on this point in deciding that the
decision is arbitrary and capricious.
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his claim. See Pl.’s Mot. at 14. The Court has not concluded that the record compels such an
outcome. The flaw in the AFBCMR’s decision was that it failed to adequately explain its
reasoning, and there is no guarantee whatsoever that a well-reasoned decision will be favorable
to Hensley. Therefore, the correct remedy is to vacate the AFBCMR’s decision and to remand
the case. See, e.g., Banner Health v. Price, 867 F.3d 1323, 1356-57 (D.C. Cir. 2017); Bates v.
Donley, 935 F. Supp. 2d 14, 26 (D.D.C. 2013); Remmie, 898 F. Supp. 2d at 119-20.
Conclusion
For all of the above reasons, the Court, in a separate order, GRANTS IN PART and
DENIES IN PART Hensley’s motion, DENIES the Government’s motion, VACATES the
AFBCMR’s decision, and REMANDS the case to the AFBCMR for further proceedings
consistent with this Opinion.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: February 22, 2018
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