Prado v. United States of America

MOTION for Summary Judgment

S.D. Cal.June 30, 2017

1 17cv00128-H-AGS 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 LEOPOLDO PRADO UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA LEOPOLDO PRADO, an individual, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 17cv00128-H-AGS PLAINTIFF LEOPOLDO PRADO’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Assigned to: Hon. Marilyn L. Huff Department: Courtroom15A Time: 10:30am Hearing date: August 28, 2017 Complaint Filed: January 24, 2017 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TO DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 28, 2017, 2017 at 10:30AM or as soon thereafter as counsel may be heard in the above-entitled court, Plaintiff LEOPOLDO PRADO (“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. Case 3:17-cv-00128-H-AGS Document 7 Filed 06/30/17 PageID.48 Page 1 of 2 2 17cv00128-H-AGS 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 This Motion is made on the grounds that there is no genuine issue as to any 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 Declaration of Peter S. Cameron, 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: June 30, 2017 /S/ Peter S. Cameron PETER S. CAMERON, ESQ, LAW OFFICES OF PETER S. CAMERON, APC Attorney for Plaintiff Leopoldo Prado Case 3:17-cv-00128-H-AGS Document 7 Filed 06/30/17 PageID.49 Page 2 of 2 1 17cv00128-H-AGS 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 LEOPOLDO PRADO UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA LEOPOLDO PRADO, an individual, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 17cv00128-H-AGS PLAINTIFF LEOPOLDO PRADO’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SUMMARY JUDGMENT Assigned to: Hon. Marilyn L. Huff Department: Courtroom15A Time: 10:30am Hearing date: August 28, 2017 Complaint Filed: January 24, 2017 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SUMMARY JUDGMENT Plaintiff, LEOPOLDO PRADO (“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 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.50 Page 1 of 25 2 17cv00128-H-AGS 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…………………………………………………………... 14 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…………………………………… 17 E. The USN TSGLI Office and BCNR Failed to Apply the “Benefit of the Doubt Rule” Under 38 U.S.C. § 5107……………………………………………………… 19 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…………….22 IV. CONCLUSION…………………………………………………………………. 25 Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.51 Page 2 of 25 3 17cv00128-H-AGS 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)………………………….……….14 Blackwood v. United States of America, 3:15CV-00402-JHM (W.D. Ky. Oct. 5, 2016)………………………………………...24 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)………………………………………………21 Fail v. USA, 2013 WL 5418169 (D. Colo. Sep. 27, 2013)………………………….……..23, 24 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, 25 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007)……………………………………………………..……15, 25 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)………………………..20, 21 Statutes 5 U.S.C. § 706………………………………………………………..…………………………14 10 USC § 1552………………………………………………………………………………….19 38 U.S.C. § 1975………………………………………………………………………..………14 38 U.S.C. § 1980A………………………………………………………………………...……15 38 U.S.C. § 5107……………………………………………………..…………………19, 20, 21 38 C.F.R. § 9.20………………………………………………………………………… 9, 15, 16 32 CFR § 581.3…………………………………………………………………...…….………19 Federal Rules Fed. R. Civ. 56(c)………………………………………………...……………………………..13 Others SECNAVINST 1770.4…………………………………………….………………………..16, 17 33 Feb. Proc. L. Ed. § 79:393…………………………………………………….………..……21 Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.52 Page 3 of 25 4 17cv00128-H-AGS 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 partial 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”), collectively referred to as (“Defendant”). Plaintiff Leopoldo Prado (“Plaintiff”) is a former member of the United States Navy who suffered traumatic brain injuries (“TBI”) when he violently collided with another player while playing a football game. As a result of his injuries and related treatment and hospitalization, he was rendered unable to accomplish several Activities of Daily Living (“ADLs”) without verbal, physical and standby assistance for a period of over 60 consecutive days. Defendant denied Plaintiff’s claim for traumatic injury benefits for 60 days, but approved benefits for 30 days. This is inconsistent with the evidence 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, statements from caregivers: mother, Frances Prado, father, Leo Prado, Sr., and sister, Ashley Prado, that detail the care Plaintiff required from them during the claimed period of ADL losses, and a personal statement from Plaintiff who described his inability to complete his ADLs without the required assistance from his caregivers. The partial denial of TSGLI coverage by Defendant is based on decisions that are vague, arbitrary, capricious, not in accordance with the law, and unsupported by the evidence presented. After several administrative appeals and a final denial by the BCNR, Plaintiff filed this lawsuit on January 24, 2017. Plaintiff now moves for summary judgment, and requests that the court provide direction for Defendant to issue a decision that is consistent with the submitted evidence, references the proper legal standard of review, and addresses all the evidence provided to Defendant. Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.53 Page 4 of 25 5 17cv00128-H-AGS 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 September 26, 2013, Plaintiff suffered a traumatic brain injuries (TBI) when he violently collided with another person while playing a football game, resulting in multiple brain injuries, spinal injuries, damage to his arteries, and strokes. [ADM0046]; [ADM0111]. On September 27, Plaintiff was transported by ambulance to Scripps Hospital for symptoms of severe vertigo and throbbing headache. [ADM0111]. He was treated and released that afternoon. [Id.]. However, on September 28, 2013, Plaintiff was taken to Naval Medical Center San Diego - Balboa Naval Hospital (“NMC”) for reevaluation due to worsening symptoms such as vertigo, nausea, vomiting, nuchal rigidity, throbbing headache and fever. [ADM0056]. Plaintiff suffered two strokes during his stay at NMC. [Id.]. CT and MR imaging revealed vertebral artery occlusion secondary to vertebral artery dissection resulting in bilateral ischemic cerebellar stroke. [Id.]. Plaintiff was admitted to ICU. [Id.]. On October 1, 2013, Dr. Arnett Klugh, M.D. performed surgery to include suboccipital craniectomy and upper cervical decompression with C1 laminectomy and duraplasty. On October 6, 2013, Plaintiff was discharged and presented to Alvarado Rehabilitation Medical Center, San Diego for stroke rehabilitation. [ADM0076]. On October 14, 2013, Plaintiff was discharged home to the care of his family. [Id.]. On a follow-up visit to NMC San Diego, CA for Vestibular Rehab on October 17, 2013, Kim Gottshall, PT, noted “The Chief Complaint is: Dizziness, headaches, imbalance following bilateral cerebellar infarct and R vertebral artery dissection. Lying down with head turned left produces vertigo consistently. Referred to vestibular rehab by Dr. Delaney in neurosurgery. Dizziness, vertigo, gait abnormality, difficulty walking, and difficulty with balance; Exacerbating Factors: Rolling Over: Y left, Looking Up/Down: Y, Standing UP: Y, Walking: Y, Moving Head: Y acceleration and turns, Motion: Y, Visual Scene: Y, Environmental Factors: Y bright light, loud noises, uneven terrain; Physical findings: Functional Gait Assessment (required contact guard assist), Fall Risk: Yes. Eyes: ENT evaluation of spontaneous nystagmus was positive. Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.54 Page 5 of 25 6 17cv00128-H-AGS 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 ENT evaluation of positional nystagmus was positive. Neurological: Balance: Romberg’s sign was present. Gail and Stance: abnormal. A/P: 1. Vertigo”. [ADM0274]. Further, on a follow-up appointment, on November 15, 2013, Grant Meissenholder, PT, noted exacerbating factors of vertigo to include looking up and down, moving head, motion, and environmental factors, also that “ENT evaluation of spontaneous nystagmus was positive”. “Balance: Romberg’s sign was present. Gait and Stance: abnormal.” [ADM0275]. On November 20, 2013, Patsy O’Neal, PT assistant noted that Plaintiff was “on Coumadin and restricted to non-exertional law fall risk activities for the next 3 months”. Described exacerbating factors of vertigo to include looking up and down, moving head, motion, and environmental factors. “Balance: Romberg’s sign was present. Gait and Stance: abnormal”. Plan was to re-evaluate next session. [Id.]. On November 21, 2013, re-evaluation was done by Kim Gottshall, PT, and noted restrictions due to Coumadin. Plaintiff was discharged from Vestibular Rehab. “Plan: Pt will follow up with vestibular therapy after he is cleared to exercises if further symptoms arise or worsen.” [ADM0275]. On December 6, 2013, Plaintiff visited NMC, San Diego – Anticoagualtion Clinic where Christopher Ford, PharmD noted “Pt report baseline HA [headache]/dizziness, this given ER/PCM precaution if HA/dizziness worsens.” [ADM1280]. On December 13, 2013 and December 20, 2013, Plaintiff was treated for Coumadin monitoring, however, other mobility factors or dizziness were not addressed. [ADM0275]. On January 22, 2014, Dr. Michael Delaney, M.D of NMC, Neurology noted “His dizziness has been improving slowly but significantly. He will be on Coumadin for several more weeks. His EOAS is at the end of April.” [ADM1281]. On or about December 10, 2013, Plaintiff submitted a TSGLI application for for inpatient hospitalization exceeding 15 days. [ADM0006-ADM0038]. This application was approved by letter dated November 25, 2013 and Plaintiff was paid $25,000. [ADM0001-ADM0002]. On March 12, 2014, Plaintiff submitted a supplemental Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.55 Page 6 of 25 7 17cv00128-H-AGS 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 application for TSGLI benefits for 60 consecutive days of ADLs losses through his attorney Peter S. Cameron [ADM0079-ADM0114]. Peter Cameron was unable to contact Plaintiff’s medical providers, so he sought assistance from an independent registered nurse, Terri Burns, RN, to review the case. (See Decl. of Peter S. Cameron, Esq, at ¶ 3). In the Part B form of the application, entitled Medical Professional’s Statement, Terri Burns indicated and confirmed the extent of the traumatic brain injuries as well as the impact that the injuries had on Plaintiff, which included the inability to independently bathe without standby, or physical assistance; eat without verbal assistance; toilet without physical and standby assistance; and transfer without physical and standby assistance which lasted a period of over 60 days, but less than 90 days. [ADM0112-ADM0113]. The following documents were included as evidence in support of the new application: new medical records, a statement and timeline of treatment from Terri Burns, RN, statements from his caregivers: mother, Frances Prado, father, Leo Prado, Sr., and sister, Ashley Prado, that detail the care Plaintiff required from them during the claimed period of ADL losses, and a personal statement from Plaintiff who described his inability to complete his ADLs without the required assistance from his caregivers. [ADM0079-ADM0114]. In her statement and a timeline of treatment, Terri Burns, RN, provided, in relevant part, the following: “Mr. Prado’s mother, Frances Prado, father, Leo Prado, Sr, and sister, Ashley Prado, were by his side caring for him during his entire hospitalization. After he was discharged home, his family continued to care for him around the clock. Cognitive impairment, short-term memory loss, vertigo, severe headaches and imbalance which put him at a high risk of falling, impeded Mr. Prado’s ability to bathe, eat, toilet and transfer on his own without the assistance of his family from October 14, 2013 through December 15, 2013. During his rehabilitation period, medical providers documented Mr. Prado’s physical impairment causing his inability to perform ADLs. A course of treatment timeline is attached for your review which demonstrates Mr. Prado’s inability to perform activities of daily livings Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.56 Page 7 of 25 8 17cv00128-H-AGS 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 (ADLs) to include bathing, eating, toileting and transferring for over 60 days.” [ADM0082-ADM0083]. In his statement, Plaintiff, in relevant part, provided the following: “I remember being nowhere near normal when I came home from the hospital. I would lay in bed all day. I had to learn how to do everything all over again. And, I always had to have someone with me. In the hospital, there were railings. At my house, I had no railings and no railing in the shower. I had dizziness and vertigo. I felt off. When I would look side to side or rotate my head, I would get dizzy and lose my balance. My mom, dad, and sister, Ashley, would alternate staying with me. They were always with me and made sure I didn’t fall. I needed help with bathing, toileting, eating and transferring on a daily basis up until at least December 15, 2013. I tried vestibular therapy. But, they stopped it because I was on a blood thinner. And when I would stand up, it would raise my blood pressure. Because of the dizziness and vertigo, I would lose my balance.” [ADM0089-ADM0090]. In her statement, Plaintiff’s mother, Frances Prado, stated, in part, the following: ““Leo” required mostly stand-by assistance, some physical assistance and verbal reminders every day, from the time he was hospitalized on September 28, 2013 until at least December 15, 2013. I assisted “Leo” with the following activities after he was discharged from the hospital: a) bathing b) eating c) transferring d) toileting.…” [ADM0092-ADM0094]. In his statement Plaintiff’s father, Leo Prado, Sr., provided, in part, the following: “He required mostly stand-by assistance, some physical assistance and verbal reminders every day, from time to time he was hospitalized on September 28, 2013 until at least December 15, 2013. I assisted “Leo” with the following activities after he was discharged from the hospital: a) bathing b) eating c) transferring d) toileting.” …. [ADM0095-ADM0097]. Lastly, in her statement, Plaintiff’s sister, Ashley Prado, provided, in part, the following: Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.57 Page 8 of 25 9 17cv00128-H-AGS 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 ““Leo” required stand-by assistance, some physical assistance and verbal reminders every day, from time to time he was hospitalized on September 28, 2013 until at least December 15, 2013. I assisted “Leo” with the following activities after he was discharged from the hospital: a) bathing b) eating c) transferring d) toileting.” [ADM0099-ADM0101]. However, despite this evidence, Plaintiff’s supplemental application was denied on March 21, 2014 in a letter that provided no mention of the evidence or the specific facts of his case. [ADM0121-ADM0177]. Subsequently, On April 14, 2014, Plaintiff submitted a second appeal to Navy Personnel Command. [ADM0179-ADM0224]. In his appeal, counsel for Plaintiff stated that Plaintiff was paid $25,000 for inpatient hospitalization from 9/28/13 to 10/13/13 for 15 days due to a traumatic brain injury. Plaintiff’s counsel also listed the specific portions of medical records and statements that demonstrate that Plaintiff was unable to perform at least 4 ADLs for over 60 consecutive days, from September 28, 2013 to December 15, 2013, due to his traumatic brain injuries, which included an inability to independently bathe without standby assistance, an inability to eat without verbal or standby assistance, inability to transfer without standby and physical assistance and inability to toilet without standby and physical assistance (although only two ADLs are required for the minimal benefits). See 38 CFR 9.20, [ADM0179-ADM0180]. This appeal was denied by the Navy Personal Command in a letter dated June 27, 2014. [ADM0226]. The letter stated that “[t]he medical evidence you provided was evaluated by a medical officer assigned to the Navy Personnel Command. It was determined that your claimed injuries and the available medical documentation were inconsistent with the program definition for loss of two or more ADLs for 60 or more days.” [Id.]. In the light of the denial of the second appeal, Plaintiff submitted a third appeal to Navy Council of Review Boards (CORB) on August 11, 2014. [ADM0230-ADM0233]. The appeal emphasized the need to provide attention to the statements, especially considering the cited court decisions. [Id.]. In support, Plaintiff provided all previously submitted evidence, which included declarations from Plaintiff’s ADL providers, Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.58 Page 9 of 25 10 17cv00128-H-AGS 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 Frances Prado, Ashley Prado, and Leo Prado, Sr., and also a declaration from Plaintiff. [Id.]. On January 9, 2015, Plaintiff’s appeal was partially approved for 30 days of ADL losses, but denied for 60 days of ADL losses. [ADM0239]. The partial denial letter stated that “[i]n regards to your claim reconsideration submitted on your behalf by Peter S. Cameron, Esq. for the loss two or more Activities of Daily Living for 60 days, the board did not find sufficient evidence to support this claim. However, the board did find sufficient evidence to support the loss of two or more Activities of Daily Living for 30 consecutive days. Under Schedule of Losses #17, this qualifies for $25,000.00.” [Id.]. The letter does not explain the reasons why only 30 days of ADL assistance was approved and provides no specific reference to Plaintiff’s injuries and treatment. [Id.]. Then, immediately preceding this decision in the Administrative Record lodged with the Court is a two-page memo for record of the proceedings dated 9 January, 2015. [ADM0237-ADM0238]. This document was never provided to Plaintiff’s attorney, Peter S. Cameron, Esq. of the Law Offices of Peter S. Cameron, APC at any time during the administrative process. (See Decl. of Peter S. Cameron at ¶7). But not surprisingly, this document is remarkable both for its brevity and for its conclusory nature. The total substantive reasoning is indicated on this document as follows: Summary of TSGLI Appeals Board Findings: Upon review of the case file, it is clear that on 26 September 2013 BU3 Prado suffered a traumatic brain injury manifested as cerebellar infarcts likely from a thrombolic event due to his right vertebral artery dissection. He had a normal Romberg test documented as of 30 October 2013 with some induced nystagmus with right lateral gaze. By 14 November 2013 BU 3 Prado reported to his neuro-intensivisit that he had returned to his pre-stroke neurological baseline with the exception of some mild disequilibrium. It is reasonable to assume that he needed some supervision with bathing, dressing, and transferring for some period of time after discharge. However, by 14 November 2013, he reported to his provider that he had returned to his neurological baseline. Therefore, based upon the foregoing, there is sufficient evidence that BU3 Prado required assistance with two or more ADLs as a direct consequence of a traumatic brain injury for up to 30 days (but NOT to the 60 days BU3 Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.59 Page 10 of 25 11 17cv00128-H-AGS 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 Prado has claimed) after his discharged from the hospital. Under the Traumatic Service Members Group Life Insurance Schedule of Losses #17 for suffering a traumatic injury resulting in the inability to perform at least two activities of daily living (ADLs) for 30 consecutive days, the appeal is approved. [ADM00237-ADM00238]. After the partial denial letter, on February 12, 2015, Plaintiff submitted a third appeal to CORB. [ADM0253-ADM0277]. In this appeal, Plaintiff’s counsel stated that “[t]he decision to pay only for 30 days of required ADL assistance due to TBI is not consistent with medical records, statements by Mr. Prado, Frances Prado, Ashley Prado, and Leo Prado, Sr., who all served as his ADL providers, and Terri Burns, who interviewed Mr. Prado.” [Id.]. The appeal also included a new statement from a registered nurse, Nancy Olson, MSN, RN, a timeline outlining the 30-60+ day period of ADL losses within the medical records and a supplemental statement from Plaintiff. In her statement, Nancy Olson, MSN, RN, provided, in part, the following: “Based on the information above, it is reasonable to conclude that Leo Prado required at least standby assistance with ADL’s to include bathing, toileting, and transferring during the time period of November through at least December 15, 2013.” [ADM0271-ADM0272]. In her timeline, Nancy Olson, MSN, RN, provided, in part, the following: November 20, 2013- NMCSD – Vestibular Rehab: Patsy O’Neal, PT assistant noted that Mr. Prado was now “on Coumadin and restricted to non-exertional law fall risk activities for the next 3 months”. Described exacerbating factors of vertigo to include looking up and down, moving head, motion, and environmental factors. “Balance: Romberg’s sign was present. Gait and Stance: abnormal”. Plan was to re-evaluate next session. November 21, 2013- NMCSD – Vestibular Rehab: Re-evaluation done by Kim Gottshall, PT. Noted restrictions due to Coumadin as above, as well as assessment of Patsy O’Neal. Discharged Mr. Prado from vestibular therapy. “Plan: Pt will follow up with vestibular therapy after he is cleared to exercises if further symptoms arise or worsen.” December 6, 2013 - NMCSD – Anticoagulation Clinic: Christopher Ford, PharmD notes “Pt reports baseline HA [headache]/dizziness, this given Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.60 Page 11 of 25 12 17cv00128-H-AGS 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 ER/PCM precautions if HA/dizziness worsens.” December 13 and 20, 2013 - NMCSD – Anticoagulation Clinic: Follow up visits for Coumadin monitoring. Richard Weber, Pharmacist noted “Headache Baseline”. (Other mobility factors or dizziness not addressed.) January 2, 2014 - NMCSD – Anticoagulation Clinic: Follow up visit for Coumadin monitoring. January 22, 2014- NMCSD - Dr. Michael Delaney notes normal gait, negative Romberg’s sign. “His dizziness has been improving slowly but significantly.” January 30, 2014 – NMCSD - Dr. Doyle Johnson notes that Mr. Prado reports vertigo with turning the head, but is walking normally now without balance problems, and no nystagmus. “Patient is considering possible physical therapy for vertigo, after discussion of options. He will wait until anticoagulation therapy is finished before further consideration.” [ADM0274-ADM0275]. The supplemental statement from Plaintiff provided, in part, the following: “The nature of my inability to bathe, toilet, eat and transfer independently is described in previous statements by myself and my parents and sister. I continued to need help with showering and going to the bathroom because of my dizziness and balance problems until at least December 15, 2013. I would lose my balance when I looked side to side. Someone needed to be with me when I bathed and toileted because of the risk of falling…. Being on Coumadin required frequent trips to the Anticoagulation Clinic, up to three times a week. My family drove me to the visits. In order to prepare for these visits, I would need assistance to shower, toilet, and dress, as the dizziness (vertigo) and balance problems still persisted. I knew that if I lost my balance and fell while on Coumadin, my problem could worsen. I remained on Coumadin for about 6 months. Eventually, my dizziness did improve, but I continued to require assistance with bathing and toileting and transferring until at least December 15, 2013.” [ADM0277]. Plaintiff’s appeal was denied by letter dated March 11, 2015. [ADM02748. The denial letter stated that “your reconsideration request does not contain any new or material evidence that would result in a different decision by the board.” [Id.]. Then, on Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.61 Page 12 of 25 13 17cv00128-H-AGS 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 March 17, 2015, Plaintiff submitted his fourth appeal to the CORB that included new medical records from the Department of Veteran Affairs that supported Plaintiff’s claim for ADL losses due to TBI for the 30-60 day period at issue. [ADM0279-ADM0305]. However, again on June 30, 2015, Plaintiff’s appeal was denied without any explanation or analysis of documentary evidence submitted by Plaintiff. [ADM0306]. Last, on July 8, 2015, Plaintiff submitted his final administrative appeal to the Board of Correction of Naval Records (BCNR). [ADM0307-ADM0309]. The appeal was denied by letter dated May 20, 2016. [ADM1338-ADM01340]. The letter indicates that a three-member panel of the BCNR reviewed the application and denied the claim. [Id.]. The letter essentially contradicts with the medical records and statements submitted in support of Plaintiff’s claim. Like CORB’s report, the totality of BCNR’s reasoning regarding the claim for qualifying ADL losses is, in relevant part, as follows: “…. Based on the evidence that you completed rehabilitation on 21 November 2013, the Board felt that your medical condition no longer required standby assistance from your family members. The Board concluded that the 2014 Neurology report was insufficient evidence to support a determination that your condition was debilitating enough to require standby assistance beyond 21 November 2013. Accordingly, the Board was unable to find an error or injustice warranting a correction to your record and denied your application….” [Id.]. This exhausted the appeal available within the TSGLI administrative appeal process. Subsequently, Plaintiff initiated this action on July 7, 2016. III. 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 Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.62 Page 13 of 25 14 17cv00128-H-AGS 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 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 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 – arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; … (A) 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, Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.63 Page 14 of 25 15 17cv00128-H-AGS 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 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 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 Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.64 Page 15 of 25 16 17cv00128-H-AGS 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 instant TSGLI benefit claim ends here. Plaintiff’s claim for benefits is based on this provision. On March 20, 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; that most single limb injuries do not qualify unless there are extraneous circumstances, such as, an external fixator/use of wheelchair/bed bound, etc. 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; 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.” [ADM0118-ADM0119]. The physical therapy portion is relevant to Plaintiff and these guidelines compromised Defendant’s ability to fairly adjudicate the claim. 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 Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.65 Page 16 of 25 17 17cv00128-H-AGS 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 evidence and followed the legal guidelines regarding the decision-making process, Plaintiff would have been found to be entitled to the TSGLI benefits for the 60 days at issue. Reliance on improper and illegal guidelines is arbitrary, capricious and unlawful. 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 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 five findings make no reference to the facts and evidence submitted. 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 approved only for 30 days ADL loss, and hindered his ability to submit a pointed appeal to the facts and reasoning used to support the denial for 60 days of ADL losses due to TBI. Also, the preponderance of evidence standard of review is not mentioned in the letters. In the final appeal, the BCNR makes findings in a short two-page letter in a less ambiguous and less boilerplate fashion than the previous decisions, but the BCNR still upholds the prior denial for TSGLI benefits for 60 days of ADL loss due to TBI with no reference as to whether any legal standard was applied to this case. BCNR’s decision is primarily based on broad assumption that since Plaintiff completed his rehabilitation on 21 November 2013, so he no longer required stand-by assistance. [ADM1338- ADM1340]. The decision letter stated, in relevant part, “[b]ased on the evidence that you completed rehabilitation on 21 November 2013, the Board felt that your medical Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.66 Page 17 of 25 18 17cv00128-H-AGS 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 condition no longer required standby assistance from your family members. The Board concluded that the 2014 Neurology report was insufficient evidence to support a determination that your condition was debilitating enough to require standby assistance beyond 21 November 2013”. [Id.]. The BCNR followed the narrowed legal standard by Mary Koontz and failed to acknowledge or simply disregarded the other substantial evidence that supports Plaintiff’s claim for ADL assistance beyond 30 days and reaching 60 days. For example, one piece of evidence is that Plaintiff was discharged from rehabilitation since Plaintiff was on Coumadin to prevent another stroke, which further required ADL assistance as it aggravated his severe vertigo, dizziness, balance, and other issues. [ADM1278]. Defendant failed to evaluate the intensity, persistence, and limiting effects of both the TBI and its care and medication on Plaintiff’s ability to perform the claimed ADLs. 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 for 60 days. [ADM1338-ADM1340]. However, Plaintiff submitted evidence that demonstrates that Plaintiff’s injuries did require assistance for him to perform ADLs for up to and beyond 60 days from the date of the injury. Terri Burns, RN, BSN noted that Plaintiff had experienced an inability to independently bathe, eat, transfer and toilet from October 10, 2013 through December 15, 2013, and that he required hands-on and stand-by assistance to complete these activities. [ADM0112-ADM0113]. Plaintiff also supplemented Terri Burn’s certification with new and material medical records, a statement and a timeline of treatment from Nancy Olson, MSN, RN, [ADM1288- ADM1289], statements of his caregivers Mother, Frances Prado, Father Leo Prado and Sister Ashley Prado, and a statement from Plaintiff. [ADM1228-ADM1237]. 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 “[b]ased on the Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.67 Page 18 of 25 19 17cv00128-H-AGS 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 evidence that you completed rehabilitation on 21 November 2013, the Board felt that your medical condition no longer required standby assistance from your family members”. [ADM1340]. The Board makes no reference to any other medical opinion and rather than apply and mention the applicable legal standard of review, the decision is based on how the board “felt” and its broad assumption that since Plaintiff completed his rehabilitation, he no longer required assistance to complete his ADLs. [Id.] The decision failed to address the evidence and misses the proper standard to assess the losses claimed. Further, the Board’s claim that “necessary medical evidence” did not explain an inability to perform ADLs after the completion of rehabilitation misses the mark. In truth, there was no evidence for the BCNR to consider that the claimed ADLs could be performed after November 21, 2013 while Plaintiff was on Coumadin. The Board substituted unsubstantiated assumptions and opinions without a basis in the “preponderance of evidence standard” in place of firsthand accounts and medical opinions of Terri Burns, RN and Nancy Olson, MSN, RN. The decision letters do not provide adequate attention to 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 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 § Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.68 Page 19 of 25 20 17cv00128-H-AGS 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 28 581.3(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, and 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 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 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 Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.69 Page 20 of 25 21 17cv00128-H-AGS 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 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: medical records; statements and timeline of treatment by Terri Burns, RN and Nancy Olson, MSN RN; statements from Frances Prado, Leo Prado Sr., and Ashley Prado, which detail the care and duration of care Plaintiff required during the period of ADL losses; and a statement from Plaintiff. This evidence demonstrates that Plaintiff required standby and verbal assistance with bathing, eating, transferring and toileting during the qualifying 60-day period at issue. This evidence, which was only subject to a cursory mention by Defendant’s agencies, contradicts the finding that since Plaintiff “completed rehabilitation on 21 November 2013, the Board felt that your medical condition no longer required standby assistance from your family members”. It further shows the limited substance in the basis of the decisions to be in error, which includes “the Board felt that your medical condition no longer required standby assistance from your family members” and “[t]he Board concluded that the 2014 Neurology report was insufficient evidence to support a determination that your condition was debilitating enough to require standby assistance beyond 21 November 2013”. [ADM1340]. In this case, Plaintiff only must prove that his claim “to be more likely true than Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.70 Page 21 of 25 22 17cv00128-H-AGS 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 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 “[b]ased on the evidence that you completed rehabilitation on 21 November 2013, the Board felt that your medical condition no longer required standby assistance from your family members”. [Id.]. The submitted documents that include statements from Plaintiff, his three ADL providers, and two medical professionals clearly list out the required assistance to perform the claimed ADLs and the duration of such assistance. The opinion of the BCNR references a presumed ability to perform the ADLs, but it does not state the basis on which that opinion is made. “The Board concluded that the 2014 Neurology report was insufficient evidence to support a determination that your condition was debilitating enough to require standby assistance beyond 21 November 2013”. [Id.]. In this finding, and throughout all the opinions and decisions, there is only an incomplete and inadequate reference to medical records and no mention as to whether the findings are 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 without proper examination. Medical opinions, statements, and medical records are greater evidence than how the Board felt without refence to a legal standard of review, and why a 2014 Neurology report was insufficient evidence without giving thorough analysis of the Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.71 Page 22 of 25 23 17cv00128-H-AGS 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 report. Further, the BCNR did not mention the Coumadin, which further required ADL assistance as it aggravated Plaintiff’s severe vertigo, dizziness, balance, and other issues [ADM 1285-1289; 1291] Decisions must reference evidence and be made on evidence. 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 certification from Terri Burns, RN, who reviewed Plaintiff’s medical records and certified that Plaintiff had experienced an inability to independently bathe, eat, transfer and toilet from October 14, 2013 to December 15, 2013, and that he required hands-on and stand-by assistance and verbal assistance to complete these activities. [ADM0112-ADM0113]. Specifically, Terri Burns noted that Plaintiff required “assistance to get in/out of shower to include verbal reminders to comb hair and brush teeth. Stand-by assistance to make sure he didn’t fall”; “needed verbal reminders to eat and drink as he would forget”; “required assistance going to/from toilet. Also, needed help pulling pants up/down due to vertigo”; “required mostly stand-by assistance but some physical assistance when walking to keep him from falling”. [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 Nancy Olson, RN, MSN; [ADM1285-ADM1286]. Based upon her review of Plaintiff’s record, Nancy Olson confirmed Terri Burns’ assessment of Plaintiff’s inabilities to bathe, eat, transfer and toilet independently. [Id.]. In its decision, which is the final administrative decision, the BCNR did not directly address the opinions of Plaintiff’s certifying medical professionals. Plaintiff also submitted declarations from Plaintiff’s mother, Frances Prado, father, Leo Prado and sister, Ashley Prado, in which they stated that Plaintiff could not Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.72 Page 23 of 25 24 17cv00128-H-AGS 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 bathe, eat, transfer and toilet without assistance from them. [ADM1228-ADM1237]. They stated that they had to help him with bathing, eating, transferring and toilet duties. Id. Interestingly, the BCNR made no reference to these declarations 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 statements, or simply discounted them without explanation. Here, although the medical records did not explicitly list ADL limitations and a requirement for ADL assistance, the records do not refute that such assistance is necessary either. The statements of Plaintiff and his family members establish and explain the need for assistance for Plaintiff to perform his ADLs up to 60 days from the time of the injury. 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 for more than 60 days, but less than 90 days. In such circumstances, the unrebutted statements from Plaintiff’s parents and sister are 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, Mr. Melson’s wife’s statement stands unrebutted and serves as conclusive proof that Mr. Melson did indeed require the assistance described.”). Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.73 Page 24 of 25 25 17cv00128-H-AGS 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 Last, medical records corroborate the medical assessments of Plaintiff’s inability to perform at least four 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. The medical records provide that Plaintiff suffered bilateral ischemic cerebellar strokes as a result of vertebral artery occlusion secondary to vertebral artery dissection, which required inpatient treatment, surgery for suboccipital craniectomy and upper cervical decompression with C1 laminectomy and duraplasty, stroke therapy and Coumadin. The severity of the injury supports the losses claimed along with the medical records, statements, and medical opinions, which were ignored or unfairly discounted by Defendant, and contradict the partial denial of TSGLI benefits for 60 days of ADL losses due to TBI. 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 decision-making process involved in the consideration of Plaintiff’s claim is arbitrary, capricious, and contrary to law. IV. CONCLUSION The administrative decisions do not properly account for statements and evidence. Defendant failed to apply the correct 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: June 30, 2017 /S/ Peter S. Cameron PETER S. CAMERON, ESQ, LAW OFFICES OF PETER S. CAMERON, APC Attorney for Plaintiff Leopoldo Prado Case 3:17-cv-00128-H-AGS Document 7-1 Filed 06/30/17 PageID.74 Page 25 of 25 17cv00128-H-AGS 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 Leopoldo Prado UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA LEOPOLDO PRADO, an individual, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO. 17cv00128-H-AGS CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE: RE: PLAINTIFF LEOPOLDO PRADO’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; DECLARATION IN SUPPORT; AND 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 LEOPOLDO PRADO’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; DECLARATION IN SUPPORT; AND MEMORANDUM OF POINTS AND Case 3:17-cv-00128-H-AGS Document 7-2 Filed 06/30/17 PageID.75 Page 1 of 2 17cv00128-H-AGS 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 AUTHORITIES on all interested parties in said case addressed by electronic transmission through the CM/ECF system as follows: PAUL STARITA, Assistant United States Attorney, Paul.Starita@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: June 30, 2017 in San Diego, California. /S/ Peter S. Cameron Peter S. Cameron Case 3:17-cv-00128-H-AGS Document 7-2 Filed 06/30/17 PageID.76 Page 2 of 2 1 17cv00128-H-AGS 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 OFFICE 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 LEOPOLDO PRADO UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA LEOPOLDO PRADO, an individual, Plaintiff, vs. UNITED STATES OF AMERICA, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 17cv00128-H-AGS DECLARATION OF PETER S. CAMERON IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Assigned to: Hon. Marilyn L. Huff Department: Courtroom15A Time: 10:30am Hearing date: August 28, 2017 Complaint Filed: January 24, 2017 DECLARATION OF PETER S. CAMERON I, Peter S. Cameron, declare as follows: 1. I am an attorney at law, duly licensed to practice law in the State of California, and the attorney of record for Plaintiff LEOPOLDO PRADO (“Plaintiff”) in the above case. The facts set forth herein are known to me of my own personal knowledge and, if sworn as a witness herein, I could and would testify competently thereto. Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.77 Page 1 of 11 2 17cv00128-H-AGS 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 2. I have been representing Plaintiff as his attorney since his supplemental application for TSGLI benefits for ADL losses and throughout the appeals process. 3. Upon review of the case, I tried to contact two doctors who directly treated Plaintiff in support of the ADL claim. However, I was unsuccessful and I could not confirm their location or contact information due to their military status, so I contacted registered nurse, Terri Burns, RN, who reviewed the medical records and case. 4. On December 4, 2014, I made a Freedom of Information Act (“FOIA”) request to the Department of the Navy for all supporting documents and the complete file of the Plaintiff’s claim due to the refusal of the United States Navy Personnel Command to provide the file. The attached “Exhibit A” is a true and correct copy of the letter dated December 4, 2014. 5. On December 18, 2014, I received an email from David German of the United States Navy stating that a “full grant” was provided to the FOIA request. The attached “Exhibit B” is a true and correct copy of the email dated December 18, 2014, while “Exhibit C” is a true and correct copy of the letter received with the mentioned disks. 6. On January 24, 2017, I filed this case on behalf of Plaintiff. Defendant filed three new previously undisclosed documents in the FOIA response from the Council of Review Boards (“CORB”) dated 14 Nov 2014 [ADM0243-ADM0252], 9 Jan 2015 [ADM0237-ADM0238] and undated notes from the Board of Corrections of Naval Records (“BCNR”) [ADM1329-ADM1337]. 7. During my representation of Plaintiff, despite multiple requests for the complete file, including the FOIA, I did not receive the following documents prior to the Administrative File being deposited with this Court: ADM0243-ADM0252; ADM0237-ADM0238 and ADM1329-ADM1337. 8. By not providing these documents earlier in the administrative process, my client and I were at a disadvantage because I was unaware of the specific reasons behind the denial of Plaintiff’s claim and appeals. Although the documents do not ultimately Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.78 Page 2 of 11 3 17cv00128-H-AGS 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 make a difference in Plaintiff’s eligibility for the TSGLI program for 60 days of ADL losses due to TBI, the withholding of documents speaks to the arbitrary and capricious nature of Defendant’s actions, and if these internal documents were provided, I would have been able to better gauge the issues to address in the appeals and pursuit of this claim. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration is executed on this 30th day of June 2017, in San Diego, California. /S/ Peter S. Cameron Peter S. Cameron Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.79 Page 3 of 11 “EXHIBIT A” Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.80 Page 4 of 11 Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.81 Page 5 of 11 Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.82 Page 6 of 11 Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.83 Page 7 of 11 “EXHIBIT B” Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.84 Page 8 of 11 Peter Cameron Final Disposition, Request DON-NAVY-2015-001631 david.german@navy.mil Thu, Dec 18, 2014 at 1:10 PM To: "SanDiegolegaloffice@gmail.com" DON-NAVY-2015-001631 has been processed with the following final disposition: Full grant. Four disks containing responsive information is being sent via U.S. postal mail. Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.85 Page 9 of 11 “EXHIBIT C” Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.86 Page 10 of 11 Case 3:17-cv-00128-H-AGS Document 7-3 Filed 06/30/17 PageID.87 Page 11 of 11