Barker v. United States ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DANIEL BARKER,
Plaintiff,
v.
Civil Action No. 18-1717 (EGS)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
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
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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.
3
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
4
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
1 The timeline in Mr. Barker’s case bears directly on his request
for benefits. Accordingly the dates in this case carry
significant weight.
5
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
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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
7
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, treatment notes, pictures, and
emails between treating professionals. AR 0860-76.
The CORB again denied Mr. Barker’s appeal. In a memorandum
dated March 22, 2013 the CORB explained its reason for the
denial:
The Board reviewed the case file to determine
if it met the TSGLI criteria for a traumatic
event and ADL loss. The member’s medical notes
clearly support traumatic injury from the
ordnance primer malfunction while deployed to
Afghanistan. Regarding ADL loss, the Board
found insufficient evidence to support the
member’s claim for ADL loss. LT Balsamo’s
email includes excerpts from [Plaintiff’s]
medical record, including an occupational
therapy note dated 8 September 2011 (a date
within the first 30 days period) that
indicates the member had achieved “Complete
Independence” for grooming, bathing, dressing
upper body, toileting and transferring. The
note also indicated the member was able to eat
with minimal assistance (He potentially
required assistance while carrying food trays
and opening containers requiring pincer
grasps; however, an ADL is considered
2 As explained above, under the TGSLI the next benchmark for
payment of an additional $25,000 was ADL losses for a period of
at least 60 days.
8
independent if the member can accomplish it
with accommodative equipment). A 26 September
2011 occupational therapy initial evaluation
stated, “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.” The Board found that
this information did not meet the criteria of
“required assistance or standby assistance”
for the claimed ADLs of bathing and dressing.
Given this, the Board found that the
preponderance of evidence does not support
compensation for ADL loss.
AR 0855-56.
Mr. Barker requested a reconsideration of his appeal to the
CORB for his denied claim of a loss of ability to independently
perform at least two ADLs for 60 and 90 days. AR 0141, 1111. In
support of his appeal, he submitted a statement from an
independent registered nurse, Terri Burns, AR 0365-67; a
statement from his wife, 0825-26; and his own statement, AR
0822-23. Although the CORB granted his request for a new
decision considering the new evidence, AR 0140, the CORB
ultimately denied Mr. Barker’s request for reconsideration. AR
0133. The CORB reasoned that because Mr. Barker was able to
accomplish his ADLs with accommodative equipment, he did not
meet the criteria for required or standby assistance. AR 0135.
Therefore his request for reconsideration was denied. Id.
9
2. Application for Review by BCNR and District Court
Review
On July 30, 2015, Mr. Barker submitted an “Application for
Correction of Military Record” to the BCNR. AR 0019-20. His
application was denied on May 20, 2016. AR 0001-02. In denying
his application, the BCNR stated that it was “sympathetic to the
severity of [Mr. Barker’s] injuries and the difficulties [he]
encountered with performing ADLs,” but determined that “there
was conclusive evidence that [he] did not require assistance in
performing [his] ADLs beyond 26 September 2011.” Id. Therefore
his application was denied. Id.
Having exhausted administrative review, Mr. Barker sought
judicial review of the BCNR’s decision to deny his application.
He filed a complaint in the U.S. District Court for the Central
District of California, which issued a Remand Order on August
31, 2017 to the BCNR. AR 1373-79. Mr. Barker thereafter
submitted additional evidence to support his claim. AR 1138-41,
1324-35, 1336-42, 1344-46. On remand, the BCNR asked the CORB to
provide comments and recommendations on Mr. Barker’s claim to
help it come to a decision. AR 1407. The BCNR sent two letters
to the CORB. In one letter the BCNR asked the CORB to
“[e]valuate all of [Mr. Barker’s] medical records” and to
reconcile certain notes that seem to contradict each other. Id.
The BCNR also requested that the CORB “[c]learly articulate[]
10
[its] decision in light of the contradicting . . . occupational
notes.” Id. The BCNR’s other letter requested the CORB to, among
other things, “[c]learly articulate[] [its] decision in light of
any/all evidence provided by [Mr. Barker].” AR 1124.
On February 21, 2018, the CORB issued an advisory opinion
to the BCNR (“Advisory Opinion”) recommending denial of
additional TSGLI benefits. AR 1114–17. In the Advisory Opinion,
the CORB provided the following analysis for bathing
independently:
As far as bathing is concerned, the 8 September
2011 note opined the member was bathing completely
independently; however LT Balsamo’s [12 June 2012]
note stated the member was having difficulty
opening shampoo bottles. While these two
assessments seem at odds with one another, this
confusion is eliminated if one refers back to [the
TSGLI Procedural Guide]. According to the [TSGLI
Procedural Guide], members are considered unable to
bathe independently if they are unable to bathe
more than one part of the body . . . or get out of
the tub or shower. [The TSGLI Procedural Guide]
also states that patients who are able to perform
an activity with the help of accommodations are
considered to be able to independently perform the
activity. Keeping shampoo bottles open for easy
access is a sensible accommodation in this
instance, and one that would enable this individual
to be able to bathe independently.
AR 1115-16. The Advisory Opinion provided the following analysis
for dressing independently:
When it comes to dressing independently, the 8
September 2011 note assessed the member
demonstrated complete independence when it came to
dressing both his upper and lower body. This
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assessment contrasts significantly with the
assessment offered by LT Balsamo on 12 June 2012
which alluded to the fact the member continued to
have difficulty manipulating buttons and zippers
(among other things). Once again, this disparity
is put to rest so long as one bears in mind the
strict ADL definitions outlined in [the TSGLI
Procedural Guide]. To a lay person, not being able
to zip one’s own pants sounds like an impaired ADL;
however, this challenge is easily overcome if one
opts for apparel that does not involve zippers,
buttons, or shoelaces. For this ADL, sweatshirts,
sweatpants, and loafers can be construed as
accommodating devices. Here again, it is evident
that should the member cho[o]se to take advantage
of these accommodating devices, the member would be
able to dress himself without incident.
AR 1116. The CORB also compared Terri Burns’ independent nurse’s
assessment with the evaluations of the inpatient OT team, which
were “more proximate to the time period in question,” and
decided to weigh the inpatient team’s assessments more heavily.
Id. The CORB concluded that “after reviewing all of the medical
records that were provided by the Petitioner, and after
resolving all doubt to the applicant’s benefit, the
preponderance of the evidence still did not support the member’s
claims that he required assistance to bathe and dress beyond 19
October 2011.” AR 1117.
The BCNR substantially concurred with the CORB’s Advisory
Opinion, and conducted its own evaluation of the record. AR
1111-13. After independently reviewing the record, the BCNR
concluded that there was insufficient evidence of a material
12
error or injustice warranting relief. AR 1113. In reviewing the
record, the BCNR stated the following:
When reviewing [Plaintiff’s] record, the Board
highlighted that the WRNMMC occupational therapy
(OT) notes from 8 September 2011 state that
[Plaintiff was] “completely independent” in
performing [his] ADLs, to include bathing and
dressing. By 26 September 2011, the OT notes show
that [Plaintiff was] able to put on pants
independently and adapted his behavior by wearing
“sweatpants, stretch pants, [and] that sort of
stuff,” as documented in your wife’s statement of
10 June 2015. The notes also state that “showering
is fine as long as the containers are open,” which
also qualifies as an adaptive behavior that allowed
for functional independence.
. . . .
The Board noted that various documents in the record
discuss [Plaintiff’s] continued difficulty to manipulate
buttons, zippers, personal hygiene containers, water
knobs and other tasks that require fine motor skills.
These records included, but are not limited to, the OT
notes dated 26 September 2011, Lieutenant Balsamo’s
email of 12 June 2012, [Plaintiff’s] statement of 9 June
2015, [Plaintiff’s] wife’s statement of 10 June 2014,
and the correspondence from/between [Plaintiff] and
Terri Burns. The Board considered [Plaintiff’s]
arguments that [his] disability of the arm, shoulder and
hand (DASH) score indicated that [he was] “minimal
functional capacity/dependent”; however, the Board noted
that the self-rated assessment did not affect the
Board’s assessment of [Plaintiff’s] ADL independence
based on the OT notes discussed previously. The Board
also considered Dr. Shelton’s letter dated 29 June 2012,
which provided a general assessment that “[a]ctivities
using buttons, forks, knives, bottles, food items, [and]
personal hygiene products are difficult with these types
of digital impairments and loss.” While the Board fully
appreciated the impact that the loss of fine motor skills
[has] had on [Plaintiff’s] daily routine, the Board
concurred with the CORB that the inability to master
fine motor functions does not equate to an inability to
13
perform an ADL independently. The Board concluded that
although [Plaintiff] either did not receive, or could
not manipulate, accommodating equipment such as a
pincher grasp or a button hook aid, [he was] able to
adapt [his] behavior to successfully perform all ADLs
independently by 26 September 2011.
. . . .
The Board carefully considered [Plaintiff’s] argument
that OT notes from WRNMMC conflicted with subsequent
medical evaluations and/or declarations provided by
[Plaintiff] and [his] wife. However, the Board did not
concur with [his] contention. The Board concluded that
the medical evaluations were consistent in their
assessment of the limitations [Plaintiff] experienced
while performing fine motor tasks; however, the Board
identified that a disparity occurred in the application
of the TSGLI Guidelines’ definition of an individual’s
ability to “independently perform activity” and whether
the member “requires assistance.” The Board felt that
the most accurate and germane medical review was
documented by the inpatient OT notes issued by WRNMMC.
The Board highlighted that not only are these notes more
proximate in time to the injury, but the purpose of the
OT inpatient evaluation is to determine the level of
assistance that will be required when the patient
transitions home or to a rehabilitation facility.
During this evaluation, the definitions established in
the TSGLI Guidelines are reviewed and applied to the
specific case circumstances.
. . . .
The Board considered the notes made by Dr. Asher Smith,
Orthopedic Surgeon, on 13 March 2012, which state that
assistance was required with ADLs (specifically bathing
and dressing) for roughly three months. However, the
Board concluded that there was a lack of specificity in
the medical assessment, in regards to both the specific
timeframe of the required assistance, and as to whether
assistance was required when behavior was adapted to
achieve independence. The Board also considered the
Request for Non-Medical Attendant order signed by Dr.
Kim Moon, which documented the need for assistance with
dressing, bathing, and setting up a food tray for the
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duration of 90 days and [Plaintiff’s] email to Ms. Terri
Burns, RN. Again, the Board felt that Dr. Moon’s order
lacked specificity, and, as the order was not dated and
was never processed or approved, it did not provide an
accurate assessment of [Plaintiff’s] abilities in light
of the TSGLI Guidelines. Finally, the Board considered
the 2013 and 2015 statements provided by Ms. Terri Burns,
RN, which generally discussed [Plaintiff’s] inability to
perform the ADLs related to bathing and dressing without
assistance, but did not address whether assistance was
required when behavior was adapted to achieve
independence. After reviewing all of the evidence, the
Board concurred with the advisory opinion that the
assessment conducted by the OT staff at WRNMMC, which
was more proximate in time to the injury, is a more
accurate review and application of the TSGLI Guidelines
than the other medical assessments submitted in support
of [Plaintiff’s] claim.
AR 1111-13. Accordingly, the BCNR denied Mr. Barker’s
application. AR 1113.
The BCNR also considered certain procedural arguments put
forth by Mr. Barker. The Board noted that under SECNAVINST
1770.4, the evidentiary standard for TSGLI determinations is
“preponderance of the evidence.” Id. The Board also found that
even if it applied a more favorable benefit of the doubt
standard, the evidence was not approximately balanced and it
clearly supported the decision of the BCNR. Id. Ultimately, the
BCNR concluded that even though there was evidence that showed
Mr. Barker’s injuries were severe and that he received
assistance from his wife after September 26, 2011, with his
dressing and bathing ADLs, the preponderance of the evidence
“overwhelmingly signaled” that Mr. Barker “didn’t require that
15
assistance, as defined by the TSGLI Guidelines, and [Mr. Barker]
was able to perform [his] ADLs independently after that date.”
AR 1113 (emphasis in original). Accordingly, the BCNR found no
error with the determination to deny him additional benefits.
Id.
3. District Court Proceedings in this Case
Mr. Barker filed this action in July 2018 seeking a second
remand of the BCNR’s decision to deny TGSLI benefits beyond the
$25,000 he has received. See Compl., ECF No. 1. Mr. Barker moved
for summary judgment on the grounds that the BCNR’s actions were
arbitrary, capricious, and not in accordance with law. Pl.’s
Notice of Mot. for Summ. J., ECF No. 13, at 1; Pl.’s Mem. of P.
& A. in Supp. of his Mot. for Summ. J., ECF No. 13-1, at 15-16.
The United States opposed Mr. Barker’s motion and filed a cross-
motion for summary judgment. Mem. of P. & A. in Supp. of Def.’s
Cross Mot. for Summ. J. & Opp’n to Pl.’s Mot. for Summ. J., ECF
No. 18-3. The motions are ripe for adjudication.
II. Legal Standard
Although both parties have moved for summary judgment, the
parties seek review of an administrative decision under the
Administrative Procedure Act (“APA”). See 5 U.S.C. § 706. 3
3 District courts have jurisdiction to review certain
administrative decisions by government agencies, including TSGLI
claims. 38 U.S.C. § 1975. Where the jurisdictional grant does
16
Therefore, the standard articulated in Federal Rule of Civil
Procedure 56 is inapplicable because the Court has a more
limited role in reviewing the administrative record. Wilhelmus
v. Geren, 796 F. Supp. 2d 157, 160 (D.D.C. 2011)(internal
citation omitted). “[T]he function of the district court is to
determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision
it did.” See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90
(D.D.C. 2006)(internal quotation marks and citations omitted).
“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.” Wilhelmus, 796 F. Supp. 2d at 160 (internal
citation omitted).
Under the APA, a court must set aside an agency action that
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); Tourus
Records, Inc. v. DEA, 259 F.3d 731, 738 (D.C. Cir. 2001). Review
of agency action is generally deferential, Blanton v. Office of
not address the standard of review to be used by the court, such
as here, challenges to decisions of military correction boards,
such as the BCNR, are reviewable under the APA. See, e.g.,
Moreno v. Spencer, 310 F. Supp. 3d 83, 87 (D.D.C. 2018)(applying
the APA’s arbitrary and capricious standard when reviewing TSGLI
claim).
17
the Comptroller of the Currency, 909 F.3d 1162, 1170 (D.C. Cir.
2018)(citing Safari Club Int’l v. Zinke, 878 F.3d 316, 325-26
(D.C. Cir. 2017)), as long as the agency examines the relevant
facts and articulates a satisfactory explanation for its
decision including a “rational connection between the facts
found and the choice made.” Motor Vehicle Mfr.’s Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(citation
omitted); Iaccarino v. Duke, 327 F. Supp. 3d 163, 177 (D.D.C.
2018). The “scope of review under the arbitrary and capricious
standard is narrow and a court is not to substitute its judgment
for that of the agency.” Iaccarino, 327 F. Supp. 3d at 173
(internal quotation marks omitted) (citing State Farm, 463 U.S.
at 43).
Although the scope of review is deferential, “courts retain
a role . . . in ensuring that agencies have engaged in reasoned
decision making.” Iaccarino, 327 F. Supp. 3d at 173 (citing
Judulang v. Holder, 565 U.S. 42, 53 (2011)). The requirement
that an agency action not be arbitrary and capricious includes a
requirement that the agency adequately explain its result. Id.
at 177 (citing Public Citizen, Inc. v. FAA, 988 F.2d 186, 197
(D.C. Cir. 1993)). An agency’s failure to set forth its reasons
for a decision constitutes arbitrary and capricious action, and
18
a court must undo the agency action. Id. (citing Amerijet Int’l
Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014)).
III. Analysis
Mr. Barker argues that the BCNR decision was arbitrary and
capricious because it failed to apply the correct standard of
review to his claim and failed to consider relevant evidence.
The Court addresses each argument in turn.
A. Whether the BCNR Failed to Apply the Correct Standard
Mr. Barker first argues that the BCNR failed to apply the
substantial evidence or benefit of the doubt standard when it
reviewed his claims. Pl.’s Mem. of P. & A. in Supp. of his Mot.
for Summ. J., ECF No. 13-1, at 16-21. Pursuant to 38 U.S.C.
§ 5107(b), the benefit of the doubt standard requires the
Secretary of Veteran Affairs to resolve doubts in favor of a
veteran asserting a claim for benefits when the evidence in
support of and against the claim are in equipoise. The relevant
provision reads as follows:
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary
shall give the benefit of the doubt to the claimant.
38 U.S.C. § 5107(b).
19
The United States argues that because the statute creating
TSGLI benefits gives the Secretary of Defense, or the relevant
service secretary, the authority to determine whether the
claimant has suffered a covered injury, not the Secretary of
Veteran Affairs, then the benefit of the doubt standard does not
apply to claims under the TSGLI. Mem. of P. & A. in Supp. of
Def.’s Cross Mot. for Summ. J. & Opp’n to Pl.’s Mot. for Summ.
J., ECF No. 18-3 at 15. The United States also argues that the
regulations governing the TSGLI program have established the
preponderance of the evidence standard as the standard which
governs TSGLI claims, and that the regulations are entitled to
deference. Id. at 16 (citing Chevron U.S.A. Inc., v. Natural Res
Def. Council, Inc., 467 U.S. 837, 843–44 (1984)).
The Court need not resolve whether the benefit of the doubt
standard may never apply to TSGLI claims, because Mr. Barker’s
claims fail even under that standard. As the BCNR found, even if
the benefit of the doubt standard was controlling in this case,
and it is not clear if it would be, it would not apply to Mr.
Barker’s case because the evidence in this case was not in
equipoise, or approximately balanced. AR 1113. For reasons that
the Court will explain, infra at Part III(B)(2), the BCNR
adequately explained its finding that the preponderance of
evidence “overwhelmingly signaled” that Mr. Barker was able to
20
perform his ADLs independently according to the TSGLI Guidelines
and therefore the benefit of the doubt standard would not apply
in this case. Id. Accordingly, the BCNR did not err when it
determined that the benefit of the doubt standard was
inapplicable in Mr. Barker’s case.
B. Whether the BCNR Violated the APA
Mr. Barker next argues that the BCNR acted arbitrarily and
capriciously in denying his claim for TGSLI benefits beyond the
$25,000 he received for his initial hospitalization. Mr. Barker
argues that the BCNR erred when it (1) failed to consider
important evidence and (2) failed to reconcile conflicting
evidence. Pl.’s Mem. of P. & A. in Supp. of his Mot. for Summ.
J. at 21-28.
1. The BNCR Considered the Relevant Evidence
Mr. Barker first takes issue with the BCNR’s alleged
failure to consider important evidence, including first-hand
witness statements, which made direct assessments of ADL losses
under the applicable TSGLI standards. Id. at 21–23. Courts have
found that “an agency’s failure to consider, or to discount,
first-hand [witness] statements without explanation may render
an agency’s decision to deny TSGLI benefits arbitrary and
capricious.” Rich v. United States, 369 F. Supp. 3d 263, 274
(D.D.C. 2019). For example, in Fail v. United States, the U.S.
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District Court for the District of Colorado held that the Army’s
failure to review statements submitted by the two plaintiffs’
wives in support of their TSGLI claims was arbitrary and
capricious because plaintiffs needed assistance to perform
various ADLs, and the Army did not explain why it did not
consider the evidence or why they chose not to credit it. No.
12-cv-01761-MSK-CBS, 2013 WL 5418169, at *10 (D. Colo. Sept. 27,
2013).
Most analogous to this case is Blackwood v. United States,
187 F. Supp. 3d 837, 846-47 (W.D. Ky. 2016). In Blackwood, the
plaintiff, a member of the United States Army, was paralyzed
after falling approximately six feet onto his neck during an
obstacle training course. 187 F. Supp. 3d at 839, 840-41.
Plaintiff had several limitations in functional mobility, and
his movements were limited significantly. Id. at 840-41. In
support of his TSGLI claim, the plaintiff’s wife submitted a
letter stating that hw was unable to perform various ADLs
without her assistance. Id. at 842-43. The Army denied
plaintiff’s TSGLI claim on the basis that the plaintiff failed
to provide sufficient documentation to support his claim for
loss of at least two ADLs for the requisite time period. Id. at
839. The court held that the Army acted arbitrarily and
capriciously because it failed to consider medical records and
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the plaintiff’s wife’s letter which included certifications that
the plaintiff was unable to independently perform at least two
ADLs for over 120 days. Id. at 847. Because the Army failed to
consider relevant evidence that was contrary to its ultimate
conclusion, or explain why it discounted that evidence, the
decision was arbitrary and capricious. Id.
These cases stand for the proposition that an agency acts
arbitrarily and capriciously if all of, or the majority of, the
evidence points one way and the agency does not explain why it
has chosen the opposite route. Dickson v. Sec’y of Defense, 68
F.3d 1396, 1404-05 (D.C. Cir. 1995)(citations omitted). In this
case, the agency considered the witness statements and explained
why the statements did not support a grant of benefits. AR 1111-
13. Throughout its decision, the BCNR carefully reviewed
significant evidence that Mr. Barker presented and thoroughly
explained why it decided to deny Mr. Barker the benefits he
sought. Id. For instance, even though the BCNR noted the
documents that demonstrated Mr. Barker’s continued difficulty to
perform ADLs and listed those documents, AR 1111-12, the BCNR
also highlighted Mr. Barker’s complete independence and adaptive
behaviors that allowed for functional independence. Id. The BCNR
noted that the inability to master fine motor functions does not
equate to an inability to perform ADLs independently. AR 1112;
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see also TSGLI Procedures Guide, AR 1256. The Board clearly
relied on all evidence presented, and reached a reasonable
conclusion about Mr. Barker’s independence and the assistance he
required. AR 1111-13; see also Moreno, 310 F. Supp. 3d at 88-89
(stating “it is not for this Court to make inferences from the
record evidence (or lack thereof), or to assess the strength and
veracity of competing factual assertions or medical
conclusions.”). Because the agency considered the relevant
evidence in Mr. Barker’s case and its decision is supported by
the record, his arguments to the contrary must fail.
2. The BCNR Adequately Explained its Decision
Mr. Barker next makes several general arguments that the
BCNR’s decision was illogical, irreconcilable with the evidence
in the record, and not supported by substantial evidence. Pl.’s
Mem. of P. & A. in Supp. of his Mot. for Summ. J., ECF No. 13-1
at 28. Under APA review, the question for this Court is whether
the agency adequately explained its decision or if the decision
“may be reasonably discerned.” Bowman Transp., Inc. v. Arkansas-
Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
The CORB and the BCNR both fully explained their decisions
in this case while engaging in several layers of review of Mr.
Barker’s claims. In the first denial, the CORB explained how it
came to its conclusion by examining the evidence Mr. Barker
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introduced and it noted the ways that Mr. Barker had adapted his
behaviors so that he could bathe and dress without assistance.
AR 0855-56. The CORB granted Mr. Barker’s request for a new
decision, and then again denied Mr. Barker’s request for
reconsideration after considering new evidence. The CORB
explained that Mr. Barker could perform ADLs with accommodative
equipment, and therefore he did not meet the criteria of
requiring assistance or standby assistance. AR 0135. Last the
BCNR recognized that Mr. Barker was experiencing difficulty and
received help from his wife, but he did not require the
assistance. AR 0001-02.
In 2018, after the U.S. District Court of the Central
District of California remanded the case to the BCNR, the CORB
issued an Advisory Opinion to the BCNR. Mr. Barker argues that
the CORB’s Advisory Opinion did not reference all evidence
submitted. Pl.’s Mem. of P. & A. in Supp. of his Mot. for Summ.
J., ECF No. 13-1 at 13. However, final decision in this case was
made by the BCNR not the CORB. The BCNR concurred with the CORB,
but did not merely republish the CORB’s Advisory Opinion. The
BCNR independently considered the newly submitted evidence,
listing and, clearly reviewing, the evidence in its decision and
denied Barker’s appeal again. AR 1110-13 (citing evidence from
plaintiff’s wife, Dr. Smith, Dr. Moon, and Terri Burns, RN).
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In this case, both the CORB and the BCNR considered the
evidence. It is apparent that the CORB clearly weighed all of
the evidence in the original claim. AR 0855-56, 1115-16. It
provided an analysis for bathing independently, dressing
independently, and provided reasons for why it weighed certain
evidence more highly than the evidence that Mr. Barker provided.
For example, the CORB concluded that it would provide more
weight to evaluations of the inpatient OT team because they were
“more proximate to the time period in question,” AR 1116, and
the BCNR highlighted that “not only are these notes more
proximate in time to the injury, but the purpose of the OT
inpatient evaluation is to determine the level of assistance
that will be required when the patient transitions home.” AR
1112. The BCNR also “considered the notes made by Dr. Asher
Smith. . . [but] concluded that there was a lack of specificity
in the medical assessment, in regards to both the specific
timeframe of the required assistance, and as to whether
assistance was required when behavior was adapted to achieve
independence.” Id. Moreover, the BCNR reviewed all evidence and
referenced the evidence that Mr. Barker submitted in support of
his claim, finding twice that the TSGLI claim should be denied.
AR 0001-02, 1110-13. Therefore, because it considered and
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weighed all of the evidence, the BCNR did not act arbitrarily
and capriciously when it denied Mr. Barker’s application.
Mr. Barker also argues that there was no rational
connection between the facts found and the choice made when the
BCNR noted that Mr. Barker adapted his behaviors so that he
could perform his ADLs. Pl.’s Mem. of P. & A. in Supp. of his
Mot. for Summ. J., ECF No. 13-1 at 22–24. Mr. Barker relies on
National Association of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 658 (2007) for the proposition that an agency
decision is arbitrary and capricious when it fails to consider
the problem fully. Id. Although Mr. Barker is correct that an
agency cannot fail to consider an important aspect of the
problem and must explain its decision if the decision runs
counter to the evidence, the precedent on which he relies also
makes clear that the standard is deferential and an agency’s
explanation is upheld if the agency’s “path may reasonably be
discerned.” Nat’l Ass’n of Home Builders, 551 U.S. at 658
(quotation marks omitted). Mr. Barker also relies on several
cases which decide that conclusory explanations do not suffice
to meet the deferential standards of judicial review. See Ams.
for Safe Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 2013); AT&T
Wireless Servs., Inc. v. FCC, 270 F.3d 959, 968 (D.C. Cir.
2001). But these cases hold that those explanations may be
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“relatively simple and briefly stated.” See e.g., AT&T, 270 F.3d
at 968.
In this case, the BCNR easily clears that hurdle. The BCNR
found that Mr. Barker adapted his dressing by wearing
“sweatpants, stretchy pants, [and] that sort of stuff,” which
the BCNR gleaned from his wife’s statement. AR 1111. The BCNR
also found that Mr. Barker adapted his behavior by using open
containers to shower, which qualified as functional
independence. Id. Under the TSGLI Procedures Guide, if a
servicemember can adapt to perform ADLs, then he does not
require assistance needed to make a TSGLI claim. TSGLI
Procedures Guide, AR 1282–83. The BCNR found that the evidence
showed that Mr. Barker was able to bathe more than one part of
the body and get into the shower as long as the container was
open, and he was able to put on clothing, socks, and shoes as
long as there were no zippers or buttons. AR 0301; see id. Under
the guidelines, these activities qualified as adaptive behaviors
that are not covered by TSGLI. See TSGLI Procedures Guide, AR
1283. The record shows that the BCNR reasonably drew conclusions
based upon the evidence and it also provided more than a brief
or simple explanation. Therefore, the BCNR thoroughly explained
its denial of Mr. Barker’s benefits.
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Finally, Mr. Barker argues that the BCNR’s decision was not
supported by substantial evidence. When reviewing for
substantial evidence, the Court does not ask whether record
evidence could support the petitioner’s view of the issue, but
whether it supports the agency’s ultimate decision. Florida Gas
Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010).
Additionally, under the APA, the role of the agency is to
resolve factual issues and to “arrive at the decision that is
supported by the administrative record, whereas the function of
the district court is to determine whether or not as a matter of
law the evidence in the administrative record permitted the
agency to make the decision it did.” Sierra Club v. Mainella,
459 F. Supp. 2d 76, 90 (D.D.C. 2006)(citations and internal
quotation marks omitted).
In this case the administrative record supports the
agency’s ultimate decision. Again, the CORB and the BCNR both
provided explanations that demonstrate how they came to their
decision to deny Mr. Barker additional TSGLI benefits. Thus the
agency made a reasonable determination and the Court will not
disturb an explanation if it is well-reasoned and sufficiently
explained.
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IV. Conclusion
For the foregoing reasons, the Court DENIES Mr. Barker’s
motion for summary judgment and GRANTS the United States’ cross-
motion. An appropriate Order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 6, 2019
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