Mendez v. United States of America

MOTION for Summary Judgment

S.D. Cal.February 16, 2017

1 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETER S. CAMERON, ESQ. (SBN 274671) LAW OFFICES OF PETER S. CAMERON, APC 4003 Wabash Ave. San Diego, CA 92104 TELEPHONE: (619) 819-5021 FACSIMILE: (619) 330-3513 EMAIL: peter@sandiegolegaloffice.com Attorney for Plaintiff CARLOS MENDEZ UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CARLOS MENDEZ, an individual, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 16cv2486-AJB(JLB) PLAINTIFF CARLOS MENDEZ’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Assigned to: Hon. Anthony J. Battaglia Department: 3B Hearing Date: April 27, 2017 Time: 2:00PM Complaint Filed: October 4, 2016 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TO DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 27, 2017 at 2:00PM or as soon thereafter as counsel may be heard in the above-entitled court, Plaintiff Carlos Mendez (“Plaintiff”) will, and hereby does move the Court pursuant to Rule 56 of the Federal Rules of Civil Procedure for an order granting summary judgment against Defendant. This Motion is made on the grounds that there is no genuine issue as to any Case 3:16-cv-02486-AJB-JLB Document 6 Filed 02/16/17 PageID.24 Page 1 of 2 2 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 material fact and that Plaintiff is entitled to judgment as a matter of law under the Administrative Procedure Act (“APA”) since the denial of Plaintiff’s TSGLI benefits by the United States of America, through the Department of the Navy, was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. This Motion is based upon this Notice of Motion and Motion for Summary Judgment, the accompanying Memorandum of Points and Authorities, the Administrative Record that has been deposited with the Court, all pleadings and other papers on file in this action, and upon such other matters as may be presented to the Court at the time of the hearing. Respectfully submitted, Dated: February 16, 2017 /S/ Peter S. Cameron PETER S. CAMERON, ESQ, LAW OFFICES OF PETER S. CAMERON, APC Attorney for Plaintiff Carlos Mendez Case 3:16-cv-02486-AJB-JLB Document 6 Filed 02/16/17 PageID.25 Page 2 of 2 1 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETER S. CAMERON, ESQ. (SBN 274671) LAW OFFICES OF PETER S. CAMERON, APC 4003 Wabash Ave. San Diego, CA 92104 TELEPHONE: (619) 819-5021 FACSIMILE: (619) 330-3513 EMAIL: peter@sandiegolegaloffice.com Attorney for Plaintiff CARLOS MENDEZ UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CARLOS MENDEZ, an individual, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 16cv2486-AJB(JLB) PLAINTIFF CARLOS MENDEZ’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SUMMARY JUDGMENT Assigned to: Hon. Anthony J. Battaglia Department: 3B Hearing Date: April 27, 2017 Time: 2:00PM Complaint Filed: October 4, 2016 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SUMMARY JUDGMENT Plaintiff, Carlos Mendez (“Plaintiff”) hereby submits this Memorandum of Points and Authorities in Support of Summary Judgment against Defendant, United States of America, along with the Table of Contents and Table of Authorities below. /// /// Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.26 Page 1 of 24 2 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………………………3 MEMORANDUM OF POINTS AND AUTHORITIES…………………………… 4 I. INTRODUCTION…………………………………………………………………. 4 II. STATEMENT OF FACTS……………………………………………………….. 5 III. ARGUMENT…………………………………………………………………….13 A. Legal Standard For Summary Judgment……………………………………...13 B. The Decision of the USN TSGLI Office and BCNR are Subject to Reversal if Arbitrary, Capricious, or an Abuse of Discretion, or Otherwise Not in Accordance with the Law…………………………………………………………... 13 C. The USN TSGLI Office and BCNR Ignored the Legal Standard under 38 C.F.R. 9.20, and Improperly and Illegally Narrowed the Law in Assessing and Making a Decision on Plaintiff’s TSGLI Claim and Subsequent Appeals……… 15 D. The USN TSGLI Office and BCNR Erred in Failing to Apply the Proper Burden of Proof Under SECNAVINST 1770.4 ……………………………………16 E. The USN TSGLI Office and BCNR Failed to Apply the “Benefit of the Doubt Rule” Under 38 U.S.C. § 5107…………….……………………………………..….18 F. First-Hand Witness Statements were Ignored, a Lack of Medical Records Does Not Mean a Lack of ADL Losses, and There is Sufficient Evidence in the Administrative Record to Conclude Entitlement to TSGLI Benefits…………….21 IV. CONCLUSION…………………………………………………………………. 24 Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.27 Page 2 of 24 3 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Pages Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)………………………….……….13 Blackwood v. United States of America, 3:15CV-00402-JHM (W.D. Ky. Oct. 5, 2016)………………………………………...23 Carver v. United States of America, 3:2015cv00401(W.D. Ky. 2016)……………………………………………....……....23 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)………………………………….….…….13 Chappell v. Wallace, 462 U.S. 296, 303 (1983)………………………………….….………...14 Conner v. U.S. Dept. of the Army, 6 F. Supp. 3d 717, 723 (W.D. Ky. 2014)………………………………………………23 Fail v. USA, 2013 WL 5418169 (D. Colo. Sep. 27, 2013)………………………….……..22, 23 Judulang v. Holder, 132 S.Ct. 476, 483 (2011)…………………………………….………….14 Koffarnus v. United States, 2016 WL 1261155, *6 n. 6 (W.D. Ky. Mar. 30. 2016)………………………...19, 23, 24 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007)………………………………………………………14, 15, 24 Shwarz v. U.S., 234 F.3d 428, 436 (9th Cir. 2000)…………………………………..………....13 Yearwood v. United States, 2015 U.S. Dist. LEXIS 111538 (N.D. Ala. Aug. 24, 2015)………………………..19, 20 Statutes 5 U.S.C. § 706………………………………………………………..…………………………14 10 USC § 1552………………………………………………………………………………….19 38 U.S.C. § 1975………………………………………………………………………..………13 38 U.S.C. § 1980A………………………………………………………………………...……15 38 U.S.C. § 5107……………………………………………………..…………….. 18, 19, 20, 21 38 C.F.R. § 9.20…………………………………………………………………………….15, 16 32 CFR § 581.3………………………………………………………………..……...…….…..19 Federal Rules Fed. R. Civ. 56(c)………………………………………………...……………………………..13 Others SECNAVINST 1770.4…………………………………………….……………………………16 33 Feb. Proc. L. Ed. § 79:393…………………………………………………….………..……20 Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.28 Page 3 of 24 4 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This action arises from the denial of benefits under the Traumatic Servicemembers’ Group Life Insurance Program (“TSGLI”) by Defendant, the United States of America through the Department of the Navy by the Navy Personnel Command - Navy Casualty Support Division, United States Navy TSGLI Appeals Board, and the Board for Correction of Naval Records (“BCNR” or “Board”), collectively referred to as (“Defendant”). Plaintiff Carlos Mendez (“Plaintiff”) is a former member of the United States Navy who suffered traumatic injuries to his left shoulder and left pectoral muscle when a 245-pound weight fell off a weight bar on to him while lifting weights. Because of his resulting limitations due to the injuries, treatment, surgeries, and hospitalization, he was rendered unable to perform Activities of Daily Living (“ADLs”) without assistance for a period of over 60 consecutive days. Defendant denied Plaintiff’s claim for traumatic injury benefits. However, there is overwhelming evidence that has been provided in support of the claim and subsequent appeals, which includes, but is not limited to: statements by medical professionals in support of the claimed losses, medical records, a witness statement from Michelle Mirza Nelson that detail the care Plaintiff required from her during the claimed period of ADL losses, a witness statement from Lieutenant Commander Clayton M. Pendergrass who observed the impact of the injuries on Plaintiff, and a personal statement of Plaintiff who described his inability to complete his ADLs without the required assistance from Michelle Mirza Nelson. After several administrative appeals and a final denial, Plaintiff filed this action against Defendant on October 4, 2016. Plaintiff now moves for summary judgment, and requests that direction be provided to Defendant to issue a decision that is consistent with the provided evidence, is in accordance with the law provided herein, and addresses all the evidence provided to Defendant. Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.29 Page 4 of 24 5 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. STATEMENT OF FACTS On January 30, 2006, Plaintiff, a Navy Seal, suffered traumatic injuries to his left chest and shoulder area while lifting weights on an incline bench press during physical training at FOB Zamboanga, Philippines. [ADM000021] A rusty pin in the equipment broke causing a 245-pound weight to fall on his chest. [Id.] He immediately felt a tear and severe pain in his left shoulder area. [Id.] After being transported to a hospital facility in Zamboanga, Philippines, he was stabilized and transported to Manila for an MRI which showed a left pectoralis tendon rupture. [Id.] Next, on or about February 7, 2006, Plaintiff was medevac'd to Balboa Naval Medical Center, San Diego, California. [Id.] A second MRI was performed which showed a near complete left pectoralis major rupture through the musculotendinous junction with fiber retraction and 2cm of residual tendon attached to the humerus. [Id.] He was admitted to Balboa and it was determined that surgery would be necessary to repair the rupture. [Id.] On February 8, 2006, surgery was performed by General Surgeon, Dr. Michael T. Mazurek, LCDR, MC, to repair the left pectoralis major tendon, which was determined to be 70% torn. [ADM000027; ADM000109 to ADM000136]. Plaintiff was discharged home to the care of his now ex-wife, Michelle Mirza Nelson, on February 8, 2006, with an ultra-sling immobilizer on his left side and strict orders to remain immobilized. [Id.] Dr. Mazurek’s postoperative plan ordered Plaintiff to do passive external range of motion rotations at six weeks post-surgery and after six weeks he could do internal rotation strengthening for 3-4 months. [Id.] Plaintiff was ordered to not return to full activities until 6-7 months post-surgery, depending on his ability. [Id.] Plaintiff’s first follow up with Dr. Mazurek was 22 days after the traumatic event, on February 21, 2006, where Dr. Mazurek ordered to begin “gentle strengthening at 6 weeks.” [ADM000137-ADM000138]. Plaintiff indicated first working with a physical therapist at his Seal Team on March 9, 2008. [ADM000029]. At this time, Plaintiff was seen by Dr. Nelson S. Saldua, Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.30 Page 5 of 24 6 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 who reinforced Dr. Mazurek’s earlier orders and continued use of the ultra-sling immobilizer. [Id.] Upon follow-up with Dr. Jason Jadgchew on March 7, 2006 (38 days after injury), it is noted again that Plaintiff was not to begin rehabilitation on his shoulder for the first six weeks post-surgery, “…Dr. Mazurek was very explicit in that he did not want the patient moving his left arm so he was placed in an ultra-sling which immobilizes the entire left side for the first 4 weeks. Pt can now transition to a regular sling for another 4-6 weeks…”, while his injury assessment determined his strength, range of motion and stability was still abnormal, pain level was 5/10 and he still had major swelling. [ADM000031; ADM000103; ADM000139] The statements of Plaintiff and his caregiver Michelle Mirza Nelson lend support to the findings in the records. [ADM000058; ADM000140]. On April 4, 2006 (65 days after the injury), Plaintiff had a physical therapy appointment with Dr. Jadgchew. [ADM000031-ADM00032; ADM000140- ADM000141]. Dr. Jadgchew noted that Plaintiff was to use range of motion as tolerated, begin active range of motion for the next four weeks, continue with modalities for swelling, pain, and muscle stimulation, and use the sling for an additional two weeks and as needed after. [Id.] Plaintiff’s strength and range of motion were still abnormal but his stability was normal, and his pain level was 3/10 albeit with only a 25% functional level. [Id.] On May 2, 2006, (93 days after injury), Plaintiff had another physical therapy appointment with Dr. Jadgchew. [ADM00033-ADM00034; ADM000142- ADM000143]. It was noted that Plaintiff was out of the sling but Dr. Mazurek did not anticipate a full recovery until around the 6-month mark as he was only at a 50% functional level. [Id.] On June 10, 2006 (122 days after injury), Dr. Jadgchew stated that Plaintiff still had a “significant amount of atrophy on the left side” and was 75% functional with a 1/10 pain level. [ADM00035-ADM00036] On August 10, 2016, Plaintiff was finally at Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.31 Page 6 of 24 7 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 100% functionality according to Dr. Jadgchew. [Id.] On or about May 14, 2012, Plaintiff submitted his first application for TSGLI benefits. [ADM000048-ADM000057]. As part of the application entitled Part B - Medical Professional’s Statement, Joseph A. Buckner, PA had indicated and confirmed the extent of the traumatic injuries as well as the impact that the injuries had on Plaintiff, which included the inability to bathe independently without physical and standby assistance, dress independently without physical and standby assistance, and toilet independently without physical assistance which lasted a period of approximately four and a half months. [ADM000048-ADM000057]. Plaintiff’s application was denied on June 18, 2012. [ADM000040-ADM000044]. A reconsideration dated July 1, 2012 was requested with a statement from Plaintiff and others who witnessed the injury. [ADM00062-ADM00065]. However, the denial was upheld on September 4, 2012. [ADM000069] On April 25, 2014, Plaintiff through his new counsel of record, Peter S. Cameron, submitted his second application for TSGLI benefits. [ADM000075-ADM000087]. In a new application, Joseph A. Buckner, PA again indicated and confirmed the extent of the traumatic injuries as well as the impact that the injuries had on Plaintiff, which included the inability to bathe independently without physical and standby assistance, dress independently without physical and standby assistance, and toilet independently without physical assistance, however, it limited the period of requested relief to a period of more than 60 days, but less than 120 days. [ADM000080-ADM000087]. The following was included as new and material evidence in support of the appeal: new medical records, a statement from Terri Burns, RN, an updated statement by Plaintiff, and a statement from his ex-wife Michelle Mirza Nelson [ADM0000088; ADM000089]. In his statement, in part, Plaintiff provided the following: On January 30, 2006, I suffered a torn left pectoralis major tendon after a 245 pound weight fell on my chest due to faulty weight lifting equipment while participating in physical training at FOB Zamboanga, Philippines. Surgery to Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.32 Page 7 of 24 8 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 repair the near complete tendon tear was performed on February 8, 2006. I was discharged home to the care of my wife, Michelle, in an ultra-sling immobilizer with strict orders to limit my movements to only passive range of motion. From February 8, 2006 through April 18, 2006, my wife, Michelle, helped me on a daily basis with bathing, dressing and toileting. Bathing: I couldn't wash my back. Michelle also had to wash and dry the other places I couldn't reach. Dressing: When I put my clothes on, I had to keep my left arm under my shirt. Michelle had to help me with that. She also had to help me put on my pants, socks and shoes. Toileting: When going to the bathroom, Michelle had to help me pull my pants up and down because I only had the use of the one arm. [ADM0000089; ADM000090]. In part, Michelle Mirza Nelson stated the following in support of the appeal: I am Carlos Mendez's ex-wife and was married to him back in February of 2006 and was present when he was medivac'd home from deployment to undergo surgery on February 8, 2006 to reconstruct his left shoulder, pectoral tendon, ligament, and muscle. I was also his caretaker during the weeks following his surgery. Since his left arm was completely immobilized following surgery, I had to help him with his bathing, dressing, and toilet duties from February 8, 2006 to Apri118, 2006. [ADM0000092] Also, included was a statement and a timeline of treatment from Terri Burns, RN, who is an independent nurse reviewer, and she stated, in part, the following: Review of the medical records confirm Plaintiff suffered a 70% muscular tendon severance of the left pectoralis major. He was performing the incline bench press with 245 lbs when a rusty pin used to keep the bench at a 45 degree angle broke causing the weight to come crashing down on his chest. He felt a tear and immediate pain in his left shoulder/chest area. Once his teammates lifted the weights off of him, he was transported to a hospital facility in Zamboanga, Philippines. He was medicated, immobilized and transferred to a hospital in Manila for an MRI which showed a pectoralis major tendon tear. He was subsequently medevac'd to Balboa Naval Medical Center, San Diego, CA. On Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.33 Page 8 of 24 9 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 February 7, 2006, a second MRI was performed which showed a left pectoralis major tear through the musculotendinous junction with fiber retraction and 2cm of residual tendon attached to the humerus. Surgery was performed on February 8, 2006 by General Surgeon, Dr. Michael T. Mazurek, LCDR, MC, USN to include repair of the left pectoralis major tendon. He was discharged home to the care of his wife, Michelle, on February 8, 2006 with a bulky dressing and an ultra-sling on the left side with instructions to remain immobilized to promote optimal healing. The following is a timeline of events/treatment. Date Location Event 30Jan06 FOB Zamboanga, Philippines Initial Injury - 245 lb weight fell on chest/L shoulder during PT 30Jan06 Zamboanga Hospital, Transported to ER for Emergency treatment-left arm stabilized & transferred to Manila for an MRI which showed a left pectoralis major tendon tear 8Feb06 Balboa Naval Medical Center, San Diego, CA Medevac'd to CONUS. 2nd MRI performed showed near complete pectoralis major tendon tear. Underwent surgery to repair 70% pectoralis major tendon tear-30 days convalescent leave given- Discharged to home with strict orders to remain immobilized with ultra-sling 21Feb06 Balboa Naval Medical Center, San Diego, CA 1st Post-op visit with Dr. Mazurek, General Surgeon. Advised to begin active assist with forward flexion range of motion and limit external rotation abduction for 2 more weeks with gentle strengthening exercises to begin at 6 weeks. Additional 30 days of convalescent leave given 7Mar06 1st therapy session 1 month post-op at NSWG1 Medical Rehabilitation Center, San Diego Therapist noted, "Pt was instructed not to begin rehabbing his shoulder for the first 6 weeks so we have just been icing it to keep the swelling down and very light muscle stim. Mr. Mazurek was very explicit in that he did not want the patient moving his left arm so he was placed in an ultra-sling which immobilizes the entire left side for the first 4 weeks ... can now transition into a regular sling for the next 4-6 weeks" 4APR06 2nd therapy session 2 month "PROM up to 90 in FF & ABD. External rotation was not taken past 30 ... very tight at end ranges .. Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.34 Page 9 of 24 10 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 post-op at NSWG1 Medical Rehabilitation Center, San Diego can continue with PROM & begin AAROM & AROM below 90 for next 4 wks ... should continue to use the sling for another 2 wks & then continue to use sparingly for the next 2 wks as pain tolerates" 2MAY06 3rd therapy session 3 month post-op at NSWG1 Medical Rehabilitation Center, San Diego "has achieved 150 degrees of FF and ABD, ER is at SO ... out of the sling & doing isometric contractions & LBD exercises for elbow/wrist. Dr. Mazurek is very pleased with his progress & does not want any pressing exercises for at least 6 months" 6JUN06 4th therapy session 4 month post-op at NSWG1 Medical Rehabilitation Center, San Diego "has 170 degree of FF and ABD of AROM 90 of ER AROM. His isometric strength is improving & has a strong initial contraction ... still has a significant amount of atrophy on left side but is improving with endurance" Goals for the first 4 weeks after this type of surgery is to protect the healing tissue, decrease post-op pain and swelling and limit the effects of long-term immobilization with passive range of motion. No active range of motion is allowed at this time. During the next 4 week phase, passive range of motion is continued, but only for the first 2 weeks. Then for the remaining 2 weeks, gentle active range of motion is allowed. However, elevation of the shoulder or active mobility is not allowed. The third phase, 8 to 16 weeks, entails strengthening through passive and active range of motion exercises to gradually increase muscle strength and endurance. As a result of strict immobilization on the left upper side, Plaintiff required assistance from his wife, Michelle, with bathing, dressing and toileting for a period of at least 2 months. Without the physical assistance of his wife during this time, Plaintiff would have been incapable of performing these ADLs on his own . [ADM0000096 - ADM0000099] Plaintiff’s appeal was again denied on January 12, 2015. [ADM000276]. Plaintiff submitted another appeal to Navy Personnel Command on February 24, 2015. [ADM000147 - ADM000274]. The appeal included all the prior information, and additional evidence, which included a prior claim that was approved for Plaintiff for the exact same injury, and the appeal letter stated, in part: Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.35 Page 10 of 24 11 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Over the years, the TSGLI Procedures Guide has had minimal changes and there have been no substantive change in ADL claims. (See Page 1 of TSGLI Procedures Guide – Revision History). The few changes that were made were in favor of expanding benefits to traumatically injured servicemembers, such as adding TBI/PTSD inpatient claims. Here, the present and appealed claim (“Exhibit A”) and the prior claim (“Exhibit B”) are very identical, and arguably this appealed claim is more of a qualifying injury under the TSGLI Procedures Guide than the deservingly paid and approved claim. In fact, this appealed claim has more evidentiary support than the approved claim. In light of the evidence discussed below, if this appeal is denied, while the other claim was approved, it shows an inconsistent treatment of claims. Plaintiff’s approved claim was when he “tore his pectoralis major tendon and muscle on 19NOV2007 that required surgery on 15SEP2008” (See TSGLI Application, Page 12 within Exhibit B). The injury was in Afghanistan and he was not medevaced. The claim was approved for 60 days post-surgery as the requested dates in the TSGLI application were from 9/15/2008 – 12/04/2008. (See certification worksheet within Exhibit B and TSGLI Application, Pages 13- 14) For the appeal at issue, Plaintiff “tore his pectoralis major tendon, ligament, and muscle on 30JAN06 and required surgery on 08FEB2006.” However, for this injury, Plaintiff was medevaced. Presumptively, he wanted to stay with his unit, like the other injury. However, this injury was more serious, so he left the Philippines. The Philippine General Hospital could not treat him and he was in need of immediate attention, so he was required to return to the United States. This injury was more serious than the later injury. This is provided through medical records and statements by Plaintiff (See Exhibit C), Michelle Mirza Nelson (See Exhibit D), and Lt. Commander Pendergrass (See Exhibit E). The approved claim was deservedly paid $50,000.00 for 60 days ADL loss, however, the appealed claim for the same injury was denied for 30 days ADL loss and 60 days ADL loss despite the same injury and despite this injury requiring a medevac. Simply put, this appealed claim, like the approved claim, meets the standard for approval for ADL loss. [ADM000147 - ADM000274]. A letter to Defendant was later provided to clarify the purpose of the February Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.36 Page 11 of 24 12 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24, 2015 appeal on March 26, 2015, which was to request reconsideration of the previous decision in light of the new and material evidence presented on February 24, 2015. [ADM000275]. The request for reconsideration was granted on June 29, 2015 to allow another review of the appeal. [ADM000279]. However, on September 15, 2015, this appeal was also denied in a letter stating that “the Appeals board found that the preponderance of evidence does not support that Special Warfare Operator First Class Mendez required assistance for two ADLs for a period of 30 days or more.” [ADM000279]. It indicates that, the “Appeals Board voted unanimously to disapprove the TSGLI appeal for 60 days of Activities of Daily Living (ADL) loss (dress, bathe and toileting) due to Other Traumatic Injury (OTI). The total substantive reasoning was that Plaintiff was able to utilize accommodating equipment and is thus independently able to perform the activities.” Id. On September 16, 2015, Plaintiff submitted an Application for Correction of Military Record to provide an appeal to the BCNR. [ADM000280-281]. On June 24, 2016, this application was also denied for the following listed reasons: In making their decision, the Board substantially concurred with the decisions of the TSGLI Appeals Board in denying your requests. First, the Board considered the nature of your injury and immobilization in deciding to deny your request. There was no evidence that your condition precluded you from using your other arm or hand to perform the ADLs that form the basis for your TSGLI claim. You describe being able to perform some aspects of the ADLs but for unexplained reason you required assistance to complete the ADL, e.g. you could bath but not wash your back. The Board felt there was insufficient evidence explaining why you couldn’t perform those claimed ADLs with you uninjured arm and had. For example, the Board was unable to comprehend why you could not pull up a pair of sweatpants or pull of socks with you uninjured limb. Therefore, the Board concluded the evidence did not support your assertion that you required assistance to perform the claimed ADLs. Second, the Board was not convinced by your argument that you claim Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.37 Page 12 of 24 13 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 should be approved since your previous claim for a similar 2007 injury was approved. The Board considered the evidence you provided to support this petition and was not persuaded by your assertion that a previously approved TSGLI claim should serve as precedent for this case. The Board concluded that too many potential variables exist to be able to reasonably rely upon another TSGLI claim as probative evidence despite the similar nature of the injuries. Accordingly, the Board was unable to find an error or injustice warranting a correction to your record and denied your application. [ADM000283-ADM000284]. This exhausted the full administrative agency appeal process available. Subsequently, Plaintiff initiated this action on October 4, 2016. II. ARGUMENT A. Legal Standard For Summary Judgment Summary Judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “When the nonmoving party has the burden of proof at trial, the party moving for summary judgment need only demonstrate that there is an absence of evidence to support the nonmoving party’s case.” Shwarz v. U.S., 234 F.3d 428, 436 (9th Cir. 2000). There is no requirement, however, “that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex 477 U.S. at 323. Courts will focus on the facts that might affect the outcome and will disregard all “facts that are irrelevant or unnecessary.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). B. The Decision of the USN TSGLI Office and BCNR are Subject to Reversal if Arbitrary, Capricious, or an Abuse of Discretion, or Otherwise Not in Accordance with the Law District courts have jurisdiction to review certain administrative decisions by government agencies, which include TSGLI claims. 38 U.S.C. § 1975. The standard of Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.38 Page 13 of 24 14 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 review for a decision by the USN TSGLI Office and BCNR is directed by the Administrative Procedure Act (“APA”), which states, in pertinent part: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall – (1) Compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be – (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; … In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 5 U.S.C. § 706. “Board decisions are subject to judicial review and can be set aside if they are arbitrary, capricious or not based on substantial evidence.” Chappell v. Wallace, 462 U.S. 296, 303 (1983). Regarding the APA’s arbitrary and capricious standard, the Supreme Court has said, The scope of our review under the standard is ‘narrow;’ as we have often recognized, ‘a court is not to substitute its judgment for that of the agency. Agencies … have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking. When reviewing an agency action, we must assess, among other matters, whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment. That task involves examining the reasons for agency decision – or, as the case may be, the absence of such reasons. Judulang v. Holder, 132 S.Ct. 476, 483 (2011) (internal quotation marks and citations omitted). Further, an agency decision is arbitrary and capricious when the agency “has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.39 Page 14 of 24 15 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ascribed to a difference in view or the product of agency expertise.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007). C. The USN TSGLI Office and BCNR Ignored the Legal Standard under 38 C.F.R. 9.20, and Improperly and Illegally Narrowed the Law in Assessing and Making a Decision on Plaintiff’s TSGLI Claim and Subsequent Appeals Pursuant to 38 U.S.C. § 1980A(a) and (b), a service member is entitled to TSGLI benefits if he or she sustained a “traumatic injury … that results in a qualifying loss.” 38 U.S.C. § 1980A(a)(1). The statute defines a “qualifying loss” as “the inability to carry out the activities of daily living resulting from traumatic injury.” 38 U.S.C. § 1980A(b)(1). The “inability to carry out the activities of daily living” is further defined as “the inability to independently perform two or more of the following six functions: (i) Bathing, (ii) Continence, (iii) Dressing, (iv) Eating, (v) Toileting, [and] (vi) Transferring.” 38 U.S.C. § 1980A(b)(2)(D)(i)-(vi); 38 C.F.R. § 9.20(e)(6)(vi). Benefits will only become available after a service member has experienced a need for assistance, either physical, standby or verbal, for at least 15 consecutive days of ADL loss (if due to a traumatic brain injury) or 30 consecutive days of ADL loss (if due to something other than a traumatic brain injury). 38 C.F.R. § 9.20(f)(17), (20). TSGLI will pay $25,000 for each consecutive 30-day period for ADL loss, up to a maximum of $100,000 for 120 consecutive days. 38 C.F.R.§ 9.20(f). The pertinent law governing the instant TSGLI benefit claim ends here. Plaintiff’s claim for benefits is based on this provision. On February 6, 2014, Mary A. Koontz, who is listed as the “Navy Program Manager for Traumatic Injury SGLI” for Defendant sent an email to Plaintiff outlining internal guidelines under which the Navy TSGLI program operates that are not included in the applicable law, which, in pertinent part, were stated as: “The misinformation that ‘all” injuries are covered is not correct. VA has clearly identified to each branch of service program manager that single limb injuries do not qualify unless there are extraneous circumstances, such as, an external fixator/use of wheelchair/bed bound, etc. Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.40 Page 15 of 24 16 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BLUF: Torn ACLs, Achilles heel injuries, meniscuses, for single leg are most often not found eligible due to lack of medical documentation for activities of daily living (ADL) loss. Shoulders/wrists are the same; the VA’s standpoint is that you have another limb to accommodate what needs to be done, at least on paper! The reality is the medical does not adequately document losses that a patient sustains outside an inpatient environment. 9 out of 10 times, once a patient ‘begins’ physical therapy, they are no longer eligible for ADL losses.” [ADM00070 - ADM00071]. Mary Koontz does not state the authority on which she relies for this additional criterion, nor does she clarify the legal basis of the “VA’s standpoint. Through this additional criterion, Defendant has improperly narrowed the law, specifically the TSGLI Procedures Guide, which is codified by law under 38 C.F.R. 9.20 and SECNAVINST 1770.4, with internal memorandum and guidelines that are not part of the law under which the TSGLI program operates. As such, Defendant is not acting in accordance with the law, and furthering the improper denial of claims. By these broad, internal, and hidden guidelines, Defendant has improperly and illegally narrowed the law regarding the decision-making process. The reliance on these unpublished guidelines serve to limit the approval of claims with biased and strict standards, which work against traumatically injured service members. If Defendant properly considered all the evidence and followed the legal guidelines regarding the decision-making process, Plaintiff would have been found to be entitled to the TSGLI benefits, like he was for the injury in 2007. D. The USN TSGLI Office and BCNR Erred in Failing to Apply the Proper Burden of Proof Under SECNAVINST 1770.4 SECNAVINST 1770.4 Section 3(e)(2) provides that “[t]he evidentiary standard for TSGLI determinations is a preponderance of the evidence. Preponderance of the evidence is that evidence that tends to prove one side of a disputed fact by outweighing the evidence on the other side (that is, by more than 50 percent). Preponderance does not necessarily mean a greater mass of evidence. Rather, preponderance means a Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.41 Page 16 of 24 17 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 superiority of evidence on one side or the other of a disputed fact. It is a term that refers to the quality, rather than the quantity, of the evidence.” Accordingly, pursuant to SECNAVINST 1770.4 Section 3(e)(2) and award should be granted when the evidence supporting a claim is ever so slightly more than the evidence against a claim. Here, the first four USN TSGLI findings make no reference to the facts of the case and evidence submitted. [ADM000042 – ADM000044, ADM000069, ADM000146, ADM00278, and ADM000279]. The decision letters contain boilerplate language that could be used for the denial of any claim, which left Plaintiff at a loss as to why specifically he was denied, and hindered his ability to submit a pointed appeal to the facts and reasoning used to support the denial. [Id.] In the final appeal, the BCNR makes findings in a short two-page letter that is less ambiguous and less of a boilerplate fashion than the previous decisions, but the BCNR still upholds prior denials with no reference as to whether any legal standard was applied to this case, other than perhaps, “[t]he injuries you suffered do not per se require assistance to perform ADLs.” [ADM000284 – ADM 000285]. Further, the facts referenced in the BCNR decision are inadequate and incomplete. The BCNR references no specific medical records or statements in concluding the injuries suffered by Plaintiff did not allow him to independently perform his ADLs. [ADM000284 – ADM 000285]. However, Plaintiff submitted evidence that demonstrates that Plaintiff’s injuries did require assistance for him to perform ADLs. For example, Joseph Buckner, PA noted that Plaintiff had experienced an inability to independently bathe, dress, and transfer from February 8, 2006 to April 18, 2006, and that he required hands-on and stand-by assistance to complete these activities. [ADM00050-ADM00057; ADM00080-00087]. Specifically, Joseph Buckner, PA noted that Plaintiff required “direct hands on and stand by assistance to bathe the right side of his body and back”; “was unable to fully dress himself and needed direct hands on and stand by assistance”; “was unable to properly clean himself after a bowel movement, Required direct hands on assistance.” [Id]. Further, Plaintiff supplemented the original Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.42 Page 17 of 24 18 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 certification with new and material medical records, a statement in support of the claim and a timeline of treatment from Terri Burns, RN, BSN [ADM000096-ADM000099], a statement of his caregiver Michelle Mirza Nelson [ADM000092], and a statement from Plaintiff. [ADM000089-ADM000090]. The BCNR did not make a specific reference to any provided medical record, medical opinion, or statement in support of the claim. The reasoning is inadequate and incomplete, and is based on unsubstantiated assumptions, such as “The Board felt there was insufficient evidence explaining why you couldn’t perform those claimed ADLs with your uninjured arm and hand” and “the Board was unable to comprehend why you could not pull up a pair of sweatpants or pull on socks with your uninjured limb”. [ADM000284]. The decision failed to address the evidence and misses the proper standard to assess the losses claimed. Further, the Board’s claim that sufficient evidence did not explain an inability to perform ADLs with the injury arm and hand misses the mark. In truth, there was no evidence for the BCNR to consider that the claimed ADLs could be performed with the uninjured arm and hand. There was no evidence to assume Mr. Mendez could pull up a pair of sweatpants or pull on socks with his uninjured limb. The Board, who are not listed as having any medical expertise, have substituted assumptions and opinions without any basis in evidence in place of Joseph Buckner, PA and Terri Burns, RN. There is no mention of any clear legal standard of review. The decision letters miss the evidence presented, or address the evidence presented in a conclusory manner. Defendant’s failure to apply the proper legal standard, or any legal standard in its review of Plaintiff’s claim is arbitrary, capricious, an abuse of discretion, and not in accordance with the law. E. The USN TSGLI Office and BCNR Failed to Apply the “Benefit of the Doubt Rule” Under 38 U.S.C. § 5107 It should also be noted that recent court decisions have lowered the applicable legal threshold from “preponderance of evidence” to the “benefit of the doubt” rule. Under the benefit of the doubt rule, “[w]hen there is an approximate balance of positive Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.43 Page 18 of 24 19 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. The administrative process of the TSGLI program is enabled by 10 USC § 1552 and 32 CFR § 581.3. Under 32 CFR § 581.3., Defendant is required to take action if it finds “sufficient evidence” that a “material error or injustice exists”. 32 CFR § 581.3(b)(4)(ii). This determination is to be made according to a preponderance of the evidence standard, with the burden of proof on the applicant. 32 CFR § 581.3(e)(2). However, because TSGLI program benefits are administered by the Secretary of the Veterans Administration, the correct standard applicable in this case is actually lesser, which is that of substantial evidence. Because the TSGLI program is administered by the Secretary of Veterans Affairs, 38 USC § 5107(b) is fully applicable to TSGLI benefit determinations. That provision requires that “[w]hen 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); see also Koffarnus v. United States, 2016 WL 1261155, *6 n. 6 (W.D. Ky. Mar. 30. 2016). As explained in the context of a TSGLI benefit claim in Yearwood v. United States, 2015 U.S. Dist. LEXIS 111538 (N.D. Ala. Aug. 24, 2015), this statutorily mandated benefit of the doubt “is of particular importance” in reviewing the denial of TSGLI program benefits. See Yearwood at *6. The required benefit of the doubt alters the standard of proof that the claimant must meet, necessarily reducing it from “preponderance of the evidence” to a lesser “substantial evidence” standard: Because the claimant is entitled to the “benefit of the doubt” whenever the evidence is in equipoise, § 5107(e) clearly does not require the claimant to prove his claim by a preponderance of the evidence. Applying a preponderance of evidence burden to the claimant renders § 5107(b) meaningless. Requiring the claimant to prove his claim “to be more likely true than not true,” contradicts the careful balance established in § 5107(b), under which all matters on which the evidence is in “approximate balance” goes to the Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.44 Page 19 of 24 20 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claimant. The burden of proof established by § 5107 requires the claimant to make an initial presentation of his claim and support it with substantial evidence, 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.” Yearwood at *26. The practical consequence is a shift in the burden from Plaintiff to the Defendant’s agencies: “. . . once the claimant proves at least on ‘approximate balance’ in the evidence, the burden shifts to the Secretary to show by preponderance of the evidence [that coverage does not apply]. Ties go to the plaintiff.” Id. at *28. The Yearwood court also references the Westlaw’s treatise on Federal Procedure, which provides a helpful discussion on the review of the application of the “benefit of the doubt” doctrine: While there may be support in the record for the Board’s findings, there also may be evidence which supports a contrary conclusion; indeed, there may be two permissible views. If such evidence is in the record and the Board fails to include an adequate statement of reasons or basis for its findings or its conclusions, either implicit or explicit, that the veteran was not entitled to the benefit of the doubt, the Board’s determination as to the benefit of the doubt may well be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, . . ..Yearwood at **53-54, quoting 33 Feb. Proc. L. Ed. § 79:393 (emphasis supplied). In the present case, the weight of the evidence is in favor of Plaintiff, which includes: certification of his claim by Joseph Buckner, PA, medical records, a statement and timeline of treatment by Terri Burns, RN, a statement from Michelle Mirza Nelson detailing the care he required during the period of ADL loss, and a statement from Plaintiff. This evidence demonstrates that Plaintiff required standby and physical assistance with bathing, dressing and toileting during the qualifying 30 and 60 day periods at issue. This evidence, which was only subject to a cursory mention by Defendant’s agencies, contradicts the finding that “the injuries Plaintiff suffered do not per se require assistance to perform ADLs”. It further shows the limited substance in the Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.45 Page 20 of 24 21 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 basis of the decisions to be in error, which includes “The Board felt there was insufficient evidence explaining why you couldn’t perform those claimed ADLs with your uninjured arm and hand” and “the Board was unable to comprehend why you could not pull up a pair of sweatpants or pull on socks with your uninjured limb”. [ADM000284]. In this case, Plaintiff only must prove that his claim “to be more likely true than not true”. In other words, if evidence supporting entitlement to TSGLI benefits exists in the record, the BCNR must explain why the claimant was not given the benefit of the doubt under § 5107(a), something the BCNR clearly failed to do in this case. The proper standard has been missed by Defendant, to the detriment of Plaintiff and his claim. Therefore, Defendant’s determination based on assumptions, incorrect legal standards of review, and a lack of mention of evidence is arbitrary, capricious, an abuse of discretion, and not in accordance with the law. F. First-Hand Witness Statements were Ignored, a Lack of Medical Records Does Not Mean a Lack of ADL Losses, and There is Sufficient Evidence in the Administrative Record to Conclude Entitlement to TSGLI Benefits The documents submitted by Plaintiff contradict the BCNR’s conclusion that “the Board concluded the evidence did not support your assertion that you required assistance to perform the claimed ADLs”. [ADM000284]. The submitted documents that include statements from Plaintiff, his ADL provider, and two medical professionals clearly list out the required assistance to perform the claimed ADLs. The opinion of the BCNR references a presumed ability for one arm to compensate for the immobilization of the other, but it does not state the basis on which that opinion is made. “The Board felt there was insufficient evidence explaining why you couldn’t perform those claimed ADLs with your uninjured arm and hand” and “the Board was unable to comprehend why you could not pull up a pair of sweatpants or pull on socks with your uninjured limb”. [ADM000284]. In this finding and throughout all the opinions and decisions, there is no reference to medical records and no mention as to whether the findings are Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.46 Page 21 of 24 22 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supported by any medical opinion. In the present case, there is no evidence contrary to the statements and medical opinions submitted. The evidence is simply disregarded by Defendant due to how the Board “felt” and its inability to “comprehend” how ADLs could not be completed with a non-immobilized limb. Medical opinions, statements, and medical records are greater evidence than feelings and an inability to comprehend without mentioning any of the evidence submitted. Decisions must reference evidence and be made on evidence. This case appears to be a case of first impression for the United States Navy, but as noted in Fail v. USA, 2013 WL 5418169 (D. Colo. Sep. 27, 2013), “the Army is [not] free to disregard or give minimal deference to the certifying professional’s opinions in all circumstances.” [Id. at *7]. As noted by the district court, “[t]here will often be circumstances where some weight, or even considerable weight, should be given to the certifying professional’s opinions regarding limitations.” [Id. at *7]. Plaintiff properly submitted medical certifications from Joseph Buckner, PA, who reviewed Plaintiff’s medical records and certified that Plaintiff had experienced an inability to independently bathe, dress, and toilet from February 08, 2006 to April 18, 2006, and that he required hands-on and stand-by assistance to complete these activities. [ADM00080-ADM00087]. Specifically, Buckner noted that Plaintiff required “direct hands on and stand by assistance to bathe the right side of his body and back.”; “was unable to fully dress himself and needed direct hands on and stand by assistance”; “was unable to properly clean himself after a bowel movement, Required direct hands on assistance.” [Id]. While the certification of Plaintiff’s limitations was not based on direct observation of Plaintiff’s limitations, it is probative, and Plaintiff supplemented a second opinion from a registered nurse Terri Burns, RN, BSN; [ADM00096- ADM00099]. Based upon her review of Plaintiff’s record, Terri Burns confirmed Joseph Buckner’s assessment of Plaintiff’s inabilities to bathe, dress and toilet independently. In its decision, which is the final administrative decision, the BCNR did not directly address the opinions of Plaintiff’s certifying medical professionals. Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.47 Page 22 of 24 23 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff also submitted a declaration dated January 15, 2014 from Michelle Mirza Nelson that is notarized and signed under penalty of perjury, in which she stated that Plaintiff could not bathe, dress and toilet without assistance from her. [ADM00092]. She stated that she “…had to help him with bathing, dressing and toilet duties…” Id. Interestingly, the BCNR made no reference to this declaration even though it provides significant support for Plaintiff’s claim, including the type and duration of assistance that Plaintiff required. See Fail, 2013 WL 5418169, *13. “When the medical records do not explicitly address a patient’s inability to independently perform the activities of daily living, letters from caregivers provide strong corroborating evidence of a patient’s claim.” Koffarnus, 2016 WL 1261155, *7 (“At the very least, the Board needed to respond to Koffarnus’s spouse’s letter, which corroborated her claim and was not frivolous.”); see also Blackwood v. United States of America, 3:15CV-00402-JHM (W.D. Ky. Oct. 5, 2016); see also Carver v. United States of America, 3:2015cv00401(W.D. Ky. 2016); see also Conner v. U.S. Dept. of the Army, 6 F. Supp. 3d 717, 723 (W.D. Ky. 2014) (an agency decision may be arbitrary and capricious if the agency does not address a nonfrivolous argument made by plaintiff). The BCNR either failed to consider the statement from Michele Mirza Nelson or simply discounted it without explanation. Here, although the medical records did not explicitly list ADL limitations, the records do not refute that such assistance is necessary either. The statement of Plaintiff and Michelle Mirza Nelson establish and explain the need for assistance for Plaintiff to perform his ADLs. The statements specifically explain how the ADL assistance was provided, how Plaintiff was dependent on assistance, and how Plaintiff could not perform his ADLs independently without such assistance. There is no evidence in the records to the contrary. In such circumstances, the unrebutted statement from Michelle Mirza Nelson is dispositive. See Fail, 2013 WL 5418169 (“The Court sees nothing in Mr. Melson’s medical records that affirmatively disputes the representations as to the type or duration of assistance that Mr. Melson’s wife claims to have provided. Thus, Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.48 Page 23 of 24 24 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Melson’s wife’s statement stands unrebutted and serves as conclusive proof that Mr. Melson did indeed require the assistance described.”). Third, medical records corroborate the medical assessments of Plaintiff’s inability to perform at least three ADLs (while only two are required) without a need for standby assistance and physical assistance (while only one is required) for at least 60 consecutive days (while only 30 days are required for partial benefits requested). The medical records reflect that Plaintiff entire upper left side was immobilized due to a near complete tear of his pectoral muscle, which required inpatient treatment, a medical flight from the Philippines to the United States, surgery, and physical therapy. The medical records, statements, and medical opinions were ignored by Defendant and contradict the complete denial of TSGLI benefits. See Koffarnus, 2016 WL 1261155, *8 (citing National Ass’n of Home Builders, 551 U.S. at 658 (a reviewing court may find an agency decision arbitrary and capricious if the decision runs counter to the evidence before the agency)). Therefore, Defendant’s decisions and the decision-making in regards to deciding Plaintiff’s claim are arbitrary, capricious, and contrary to law. IV. CONCLUSION The administrative decisions do not properly account for statements and evidence. Defendant failed to apply the incorrect legal standard in the review of the claim and improperly narrowed the laws in the review of Plaintiff’s claim. As such, Defendant’s decisions are arbitrary, capricious, contrary to law and unsupported by substantial evidence. Thus, Plaintiff requests that this motion be granted, an order be entered to remand the case to the United States Navy Personnel Casualty Division with specific guidance and instruction. Plaintiff also requests to be awarded reasonable attorney fees and costs in a following motion under the Equal Access to Justice Act. Respectfully submitted, Dated: February 16, 2017 /S/ Peter S. Cameron PETER S. CAMERON, ESQ, LAW OFFICES OF PETER S. CAMERON, APC Attorney for Plaintiff Carlos Mendez Case 3:16-cv-02486-AJB-JLB Document 6-1 Filed 02/16/17 PageID.49 Page 24 of 24 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETER S. CAMERON, ESQ. (SBN 274671) LAW OFFICES OF PETER S. CAMERON, APC 4003 Wabash Ave. San Diego, CA 92104 TELEPHONE: (619) 819-5021 FACSIMILE: (619) 330-3513 EMAIL: peter@sandiegolegaloffice.com Attorney for Plaintiff Carlos Mendez UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CARLOS MENDEZ, an individual, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO. 16cv2486-AJB(JLB) CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE: RE: PLAINTIFF CARLOS MENDEZ’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES I, the undersigned, declare that I am over the age of eighteen years and not a party to the action. I am employed in the City of San Diego, California, and my business address is 4003 Wabash Ave., San Diego, CA 92104. On the date below I served a copy of the following document(s): PLAINTIFF CARLOS MENDEZ’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES on all interested parties in said case addressed by electronic transmission through the CM/ECF system as follows: Case 3:16-cv-02486-AJB-JLB Document 6-2 Filed 02/16/17 PageID.50 Page 1 of 2 16cv2486-AJB(JLB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DANIEL E. BUTCHER, Assistant United States Attorney, daniel.butcher@usdoj.gov I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct. Executed: February 16, 2017 in San Diego, California. /S/ Peter S. Cameron Peter S. Cameron Case 3:16-cv-02486-AJB-JLB Document 6-2 Filed 02/16/17 PageID.51 Page 2 of 2