                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    CARLOS A. MORENO,

                        Plaintiff,

                        v.                           Case No. 1:17-cv-01099 (TNM)

    RICHARD V. SPENCER, in his official
    capacity as SECRETARY OF THE NAVY,

                        Defendant.


                                     MEMORANDUM OPINION

        Plaintiff Carlos Moreno, a service member in the United States Marine Corps, filed for

judicial review of the Government’s1 denial of his claim for benefits under the Servicemembers

Group Life Insurance Traumatic Injury Protection Program (“TSGLI”). Compl. ¶¶ 1, 15, ECF

No. 1. The Government seeks summary judgment, arguing that the adjudication of

Mr. Moreno’s claim was not arbitrary, capricious, or otherwise contrary to law under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Mem. of P. & A. in Supp. of

Def.’s Mot. for Summary J. (“Def.’s Mot. for Summary J.”) 1, ECF No. 9-1. Upon consideration

of the pleadings, relevant law, related legal memoranda in opposition and in support, and the

entire record, the Court finds that the Government’s determination that Mr. Moreno did not




1
  Mr. Moreno’s Complaint names as the Defendant the United States of America, by and
through the Department of Veterans Affairs, the Department of Justice, the U.S. Attorney’s
Office for the District of Columbia, the Department of Defense, and the Department of the Navy.
Compl. 1. Pursuant to the Government’s representation, Richard V. Spencer, as Secretary of the
Navy, has been substituted as the appropriate Defendant in this case. Def.’s Reply in Supp. of
Mot. for Summary J. 1 n.1, ECF No. 12.
present evidence sufficient to prevail on his claim is supported by the record. Accordingly, the

Government’s motion will be granted.

                                                I.

       On December 3, 2012, while on active duty, Mr. Moreno’s right foot was run over by a

M777 Howitzer tire, fracturing several of his metatarsal bones. A.R. 97, 107. The following

day, he underwent surgery which placed metal pins on his foot. A.R. 97. Immediately after

surgery, he wore a splint and was ordered to not bear any weight on his right foot. Id. On

December 11, 2012, he transitioned to wearing a short leg cast and using crutches. Id.

Approximately two months after surgery, the pins were removed and Mr. Moreno began using a

cast boot with crutches. A.R. 354. His prognosis was “poor with regard to return[ing] to active

duty” and a treatment note stated that “his care at this point is to provide him with a foot he can

ambulate with minimal or no pain. I don’t expect he will ever be able to run distances again or

do heavy labor without some foot pain.” Id. On March 14, 2013, a treatment note documented

that Mr. Moreno was able to ambulate independently at 50% weight bearing with crutches. A.R.

356. Notes from physical therapy sessions on March 19, 2013; March 27, 2013; April 2, 2013;

April 13, 2013; and April 22, 2013, indicate that Mr. Moreno ambulated into the clinic with

crutches and/or a controlled ankle movement boot. A.R. 358-60.

       On May 30, 2013, Mr. Moreno submitted an application to the Marine Corps for TSGLI

benefits for the amount of $100,000, representing 120 consecutive days of loss of activities of

daily living (“ADL”). A.R. 421. The TSGLI provides lump-sum payments for service members

who sustain, among others, a traumatic injury that leads to an “inability to independently perform

two or more” of activities of daily living, which include bathing, continence, dressing, eating,

toileting, and transferring. 38 U.S.C. § 1980A; 38 C.F.R. § 9.20(e)(7). A service member’s


                                                 2
losses must be sustained for at least 30 consecutive days, which is compensated with a $25,000

lump sum payout; each additional 30 consecutive day loss period warrants an incremental

$25,000 payment with the total potential payout capped at $100,000 for 120 consecutive days of

the inability to carry out ADLs. 38 C.F.R. § 9.20(e)(7). Claims are initially submitted to the

service member’s branch of service, and may be administratively appealed up to three times.

Def.’s Mot. for Summary J. 7-8. Mr. Moreno claimed that he was unable to independently bathe

and dress between December 3, 2012 and April 19, 2013. A.R. 327. Dr. Dennis Hopkins, who

did not treat Mr. Moreno but reviewed his medical records, signed the portion of the benefits

application requiring a medical professional statement. A.R. 329.

       Mr. Moreno’s claim was denied on August 6, 2013 as the “medical documentation d[id]

not support [Mr. Moreno’s] inability to perform ADLs for 30 days.” A.R. 405-07. The letter

explained that TSGLI benefits accrue when applicants are “unable to independently perform at

least two activities of daily living (ADL)s for at least 30 consecutive days. The claimant is

considered unable to perform an activity independently only if he or she requires at least one of

the following, without which they would be incapable of performing the task: physical assistance

(hands-on), stand-by assistance (within arm’s reach), verbal assistance (must be instructed).”

A.R. 405. This decision was appealed within the service branch, known as a claim

“reconsideration,” on October 24, 2013 and was denied on December 12, 2013. A.R. 19-20, 23-

38. The denial letter stated that “[t]he available medical documentation did not support that

[Mr. Moreno] had at least two Activities of Daily Living (ADLs) for 120 days.” A.R. 19.

       Mr. Moreno appealed the decision to the second level of administrative review, the

TSGLI Appeals Board of the Navy Council of Review (“Appeals Board”). A.R. 9-11. In

support of his inability to perform at least two ADLs, he presented a letter from his wife,




                                                 3
Kathleen Moreno. A.R. 14. In her letter, Mrs. Moreno described that in the weeks after his

surgery, she observed through videoconference Mr. Moreno “struggle to get up and get to the

restroom as well as try to figure out how to get food for two weeks” and that “[s]howering was

not even possible as he was unable to stand.” Id. She also described that once he returned home

on February 26, 2013, he “required help undressing to use the restroom as well as redressing

when he finished. He required assistance positioning his leg/foot as he sat on the toilet. . . . He

also required help getting in and out of the shower as well as washing his lower extremities. I

also assisted my husband in getting dressed as he was unable to get pants on by himself.” Id.

She also stated that he was “unable to prepare his own food” and “unable to move around freely

as he was still on crutches.” Id. On December 22, 2015, citing a preponderance of the evidence

standard, the Appeals Board denied the appeal because the “evidence does not support that

Sergeant Moreno required assistance for two ADLs for a period of 120 days or more.” A.R. 2-6.

       Mr. Moreno appears to not have appealed to the third level of administrative review and

instead filed suit in this Court. Administrative exhaustion is not required for judicial review

under the APA for a service member’s TSGLI claim. See 38 U.S.C. § 1975 (granting any district

court of the United States with original jurisdiction over TSGLI claims); 38 C.F.R. § 9.20 (i)(3)

(“Nothing in this section precludes a member from pursuing legal remedies under 38 U.S.C.

1975 and 38 C.F.R. 9.13”); Traumatic Injury Protection Under Servicemembers’ Group Life

Insurance (TSGLI): A Procedural Guide (version 2.41; Jan. 5, 2018) (“In addition to utilizing the

administrative appeals process, members have the right to file suit in federal court to contest an




                                                 4
adverse TSGLI decision.”); see also Def.’s Reply in Supp. of Mot. for Summary J. (“Def.’s

Reply”) 2, ECF No. 12.2

                                                II.

       In cases reviewing agency action under the APA, motions for summary judgment are not

analyzed under Federal Rule of Civil Procedure 56 “because of the court’s limited role in

reviewing the administrative record.” Coe v. McHugh, 968 F. Supp. 2d 237, 239 (D.D.C. 2013).

In APA cases, the Court must decide, “as a matter of law, whether the agency action is supported

by the administrative record and otherwise consistent with the APA standard of review.” Id. at

240. The APA requires that the Court “set aside agency action, findings, and conclusions” that

are, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2). Judicial review under the arbitrary or capricious standard requires the

Court to determine “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)); see also Ass’n of Data

Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d 677, 683 (D.C.

Cir. 1984) (“[I]n their application to the requirement of factual support the substantial evidence

test [of 5 U.S.C. § 706(2)(E)] and the arbitrary and capricious test [of 5 U.S.C. § 706(2)(A)] are




2
  As the Government notes, throughout his opposition, Mr. Moreno refers to the Board for
Correction of Naval Records (“BCNR”), the third level of administrative review for service
members’ TSGLI claims. Id. There is no evidence in the record to indicate that Mr. Moreno’s
claim was appealed to the BCNR. Id. Thus, any references in this opinion to the agency’s or the
Government’s decision is the decision of the TSGLI Appeals Board.



                                                  5
one and the same.”).3 Stated another way, courts reviewing for substantial evidence “do 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).

       At various points in their briefs, both Mr. Moreno and the Government advocate that

other standards should apply. The Government notes that this Circuit uses “an unusually

deferential application of the arbitrary or capricious standard of the APA” when reviewing

decisions by military review boards for the correction of military records. Def.’s Mot. for

Summary J. 10. But the cases the Government cites in support––and the cases cited therein––do

not involve decisions about TSGLI benefits. See, e.g., Piersall v. Winter, 435 F.3d 319, 324

(D.C. Cir. 2006) (review of non-judicial punishment); Kreis v. Sec’y of Air Force, 866 F.2d

1508, 1514 (D.C. Cir. 1989) (review of decision whether to alter a military record); Havens v.

Maybus, 146 F. Supp. 3d 202, 214-15 (D.D.C. 2015) (same). Neither party here offers any

authority that decisions about TSGLI benefits should receive this “unusually deferential”

treatment, and on that basis, this Court will not employ it. See Hensley v. United States, 2018

WL 1036361, at *6 (D.D.C. Feb. 22, 2018) (applying the “traditional” arbitrary or capricious

standard of review to a claim for TSGLI benefits).

       Mr. Moreno claims that the agency failed to use a preponderance of the evidence

standard to evaluate his claim, id. at 11-12, but also goes further to argue that the “true standard



3
   As then-Judge Scalia described it, the “‘scope of review’ provisions of the APA are
cumulative. . . . the ‘arbitrary or capricious’ provision––is a catchall, picking up administrative
misconduct not covered by the other more specific paragraphs. Thus, in those situations where
paragraph (E) has no application . . . paragraph (A) takes up the slack.” Id. Because this matter
is not “a case subject to sections 556 and 557 [formal rulemaking procedures]” and Mr. Moreno
does not argue that it is “otherwise reviewed on the record of an agency hearing provided by
statute,” I will use the phraseology “arbitrary or capricious.” See 5 U.S.C. § 706(2)(E).


                                                  6
applicable” is actually a lesser “substantial evidence” standard. Id. at 12. According to

Mr. Moreno and the primary case on which he relies, Yearwood v. United States, 125 F. Supp. 3d

1204, 1216 (N.D. Ala. 2015), substantial evidence is “something more than a mere scintilla but

less than a preponderance. Once the claimant meets this substantial-evidence burden, he is

entitled to the benefit of the doubt as to every matter on which the evidence is in ‘approximate

balance’.” Pl.’s Opp’n at 12-13 (citing 38 U.S.C. § 5107(b), which requires the Secretary to

“give the benefit of the doubt to the claimant” when evidence is in equipoise). But as

Mr. Moreno’s counsel well knows, when issues are not first raised to the agency during the

administrative process, they need not be considered during judicial review of agency action.

See, e.g., Coker v. United States, 2016 WL 7242727 at *5 (W.D. Ky. Dec. 14, 2016) (employing

the administrative waiver doctrine against considering the “benefit of the doubt” argument

advanced by the same counsel representing Mr. Moreno); see also Advocates for Highway and

Auto Safety v. Fed. Motor Carrier Admin., 429 F.3d 1136, 1149 (D.C. Cir. 2005) (discussing the

administrative waiver doctrine). The Government disputes that the “benefit of the doubt” rule

applies to TSGLI benefits cases. Def.’s Reply 5. Because it has not been presented to or

deliberated by the agency, this Court will not consider Mr. Moreno’s argument that the agency

erred in applying the wrong standard to evaluate his claim.

                                                III.

       Having established that the proper standard for judicial review in this TSGLI benefits

case is the traditional arbitrary or capricious test, the Court turns to Mr. Moreno’s substantive

argument that the agency’s decision was “taken in direct disregard” of his wife’s letter, the

medical certification signed by Dr. Hopkins, and his medical records. Pl.’s Opp’n 16-21.

Mr. Moreno asserts that his wife’s statement provides percipient evidence that Mr. Moreno


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suffered loss of ADLs. Id. at 19. He further argues that the certification by Dr. Dennis Hopkins,

a physician who reviewed his medical records, “speaks for itself” that Mr. Moreno suffered more

than 120 days of loss of ADLs because Dr. Hopkins attested to it. Id. at 16. As for his medical

records, Mr. Moreno argues that they are “unlikely to contain, on any consistent basis, entries

that document lack of ability to perform ADLs.” Id. at 17. Because of this, Mr. Moreno asks the

Court to infer that he was “incapable of safely performing his activities of daily living of bathing

and dressing without physical or standby assistance” from records showing that he was

nonweightbearing for a period of time and thereafter was a fall risk. See id. at 18.

       To be sure, the documentation in this case that directly addresses Mr. Moreno’s inability

to perform ADLs is scant. But Mr. Moreno’s arguments miscomprehend the focus of this

Court’s review, which is to “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., 604 F.3d at 645. Even assuming, arguendo, that the evidence emphasized by

Mr. Moreno is consistent with the loss of ADLs, it would be improper for this Court to

“substitute its judgment for that of the agency.” See Motor Vehicle Mfrs. Ass’n of the United

States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). As previously described,

judicial review under the arbitrary or capricious test looks to whether there is “relevant evidence

[that] a reasonable mind might accept as adequate to support” an agency decision. United Steel,

707 F.3d at 325.

       In Mr. Moreno’s case, the Appeals Board specifically noted that its review included “the

case file and all medical documentation, to include the recently submitted new and material

evidence”––namely, Mrs. Moreno’s statement. See A.R. 2. Documentation from the Appeals

Board’s review shows that Mrs. Moreno’s statement was taken into account but found not to




                                                 8
substantiate Mr. Moreno’s inability to perform two ADLs. A.R. 5. Specifically, one review

comment found that “his wife’s statement indicates she communicated with him via skype, that

he had no assistance, and was required to return to work two weeks after sustaining his surgery.”

Id. Another reviewer stated, “wife’s statement indicates servicemember was living in Barracks

alone without aid from command and was required to return to work in 2 weeks.” A.R. 6. These

statements may reasonably be taken to mean that Mr. Moreno did not have assistance in the

weeks following his injury, and that he was not unable to “independently perform” certain

ADLs. See 38 U.S.C. § 1980A.

       The Appeals Board was also free to consider and weigh Dr. Hopkins’ assertion on

Mr. Moreno’s application for 120 days of bathing and dressing ADLs vis-à-vis treatment records

maintained by Mr. Moreno’s treating physicians and notes from his physical therapy sessions.

As summarized by a regimental surgeon who reviewed Mr. Moreno’s medical records during the

reconsideration review, his medical records showed that “he is ambulatory[with] crutches” and

that “he ambulated independently. . . . There are no OT notes addressing claim for bathe and

dress ADLs [].” A.R. 21-22; see also A.R. 356-60 (documenting instances where Mr. Moreno

was able to ambulate independently with crutches and/or a controlled ankle movement boot). It

was within the Appeal Board’s purview to evaluate this underlying evidence, which was

contemporaneously documented by Mr. Moreno’s medical treatment team, against the statement

of a non-treating physician. See Weller v. United States, 2014 WL 5320133, at *4 (M.D. La.

Oct. 17, 2014) (finding it was not arbitrary or capricious for the Government to conclude that

other medical evidence in the record did not support, inter alia, the medical certification

submitted with the service member’s application for benefits). Mr. Moreno asks the Court to

discount the lack of contemporaneous documentation because other evidence—that he was




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