UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 16-1389 (TJK) JOHN HENSLEY, Plaintiff , v. UNITED STATES OF AMERICA, Defendant

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MEMORANDUM OPINION Plaintiff John Hensley (“Hensley ”), a former Staff Sergeant in the West Virginia Air National Guard, suffered a serious shoulder injury when he fell from an aircraft in 2008. In 2013, he submitted a claim for $100,000 under an insurance prog ram for members of the military who have suffered traumatic injur ies, Servicemembers’ Group Lif e Insurance Traumatic Injury Protection (“TSGLI”). The Air For ce denied Hensley’s claim, co ncluding that Hensley had not shown that his injury qualified hi m for TSGLI benefits. Hensle y sought review before the Air Force Board for Correction of M ilitary Records (the “AFBCMR” or “Board”), which declined to grant his application. Hensley t hen brought this lawsuit again st the United States (the “Government”), asserting that th e AFBCMR’s decision should be r eversed on the ground that it was arbitrary and capricious in vi olation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Hensley and the Government have cross-moved for summary judgmen t. See ECF No. 9 (“Pl.’s Mot.”); ECF No. 13 ( “Def.’s Cross-Mot.”); see also ECF No. 15 (“Pl.’s Reply”); ECF No. 17 (“Def.’s Reply”). For the reasons explained below, Hens ley’s motion will be granted in part and denied in part, and the Gove rnment’s motion will be de nied.2 Background A. The TSGLI Program and Claims Process Members of the U.S. armed services are automatically enrolled i n the Servicemembers’ Group Life Insurance program, although they may opt out. See 38 U.S.C. § 1967; Ridgway v. Ridgway , 454 U.S. 46, 50-54 (1981) (describing origins of program). T SGLI is an automatic rider to that insurance and covers traumatic injury. See 38 U.S.C. § 1980A; Austin v. Prudential Ins. Co. of Am. , No. SA-12-CA-473, 2013 WL 12094176, at *2 (W.D. Tex. Apr. 5, 2013). “To receive TSGLI benefits, a service member must have suffered a ‘qualifying loss.’”
Austin v. United States , 614 F. App’x 198, 200 (5th Cir. 2015) (quoting 38 U.S.C. § 1980A(a)(1)). By regulation, the government has promulgated a schedule of losses describing the types of injuries that are covered. 38 C.F.R. § 9.20(f). They include traumatic non-brain injuries “resulting in an inability to perform at least 2 Activ ities of Daily Living (ADL).” Id. § 9.20(f)(20). “The statute rec ognizes six ADLs: bathing, cont inence, dressing, eating, toileting, and transferring (in or out of a bed or chair).” Austin , 614 F. App’x at 200 (citing 38 U.S.C. § 1980A(b)(2)(D)). “TSGLI will pay $25,000 for each consecutiv e 30-day period of ADL loss, up to a maximum of $100,000 for 120 consecutive days.” Id. The Fifth Circuit has summarized the TSGLI claims process as fo llows: To apply for benefits, a plan participant must file a form SGLV 8600 with his service branch. This form has two parts: Part A, to be filled out by the claimant, and Part B, the “Medical Professional’s Statement,” in which the claimant’s physician mu st certify the qualifying losses claimed. . . . The claim is then reviewed by a certifying official at the clai mant’s branch of service. If that offi cial approves any benefits, he instructs . . . the private insur ance company that administers the TSGLI program[] to pay such benefits and to notify the claimant if any part of the claim has been denied.3 Id. at 200. Within a year of the ini tial decision, service member s may appeal in writing “to the office of the uniformed service identified in the decision regarding the member’s eligibility for the benefit.” 38 C .F.R. § 9.20(i)(1). Benefits decisions may be further appealed to the relevant boar d for correction of military records, such as the AFBCMR. See, e.g. , Blackwood v. United States , 187 F. Supp. 3d 837, 839 (W.D. Ky. 2016). Such boards may act “to correct an error or r emove an injustice.” 10 U.S.C. § 1552(a)(1). In AFBCMR proceedings, the “applicant has the burden of providing sufficient evidence of material error or injustice.” 32 C.F.R. § 865.4(a) . The AFBCMR panel appointed to hear the case may request adviso ry opinions and information fro m other Air Force officials, in which case the applicant will be given the opport unity to respo nd. See id. § 865.4(a)(1), (b). The panel may also, in its disc retion, order a hearing or reque st additional information from the applicant. See id. § 865.4(a)(2), (d). Dissatisfied applicants for TSG LI benefits may also seek reviewin federal district court. District courts have original j urisdiction to hear civil action s against the United States relating to
TSGLI. See 38 U.S.C. § 1975.
B. Hensley’s Injury and Medical Treatment On February 20, 2008, Hensley slipped on an icy ladder while in specting an aircraft and fell head-first approximately 15 feet. 1 AR 2 [2], 80 [49], 553 [80], 659 [87], 778 [92 ]. Hensley’s most serious injuries were to hi s left shoulder: he suffered a fractured humerus, a torn labrum, and possible ligament damage. AR 2 [2], 80 [ 49], 778 [92]. He received prompt medical attention at a local hospital, where he was given a sling and a dvised to consult an orthopedist.

1 The parties have jointly filed the relevant excerpts from the administrative record on ECF. ECF No. 18-1 (“AR”). When citin g the record, the Court will pr ovide the page number as it appears at the bottom of the page, followed by the page number generated by ECF in brackets.4 AR 2 [2], 70 [42], 82 [51], AR 553 [8 0]. At that time, he was ordered to remai n off work for a week and to do no lifting with his left arm. AR 82 [51]. On F ebruary 25, 2008, he saw the orthopedist, who provided him with a shoulder immobilizer, pres cribed him painkillers, and concluded that he would likely ha ve to remain off work for thre e months. AR 553-54 [80-81]. In March, Hensley began physical t herapy three times per week. AR 545 [82]. It appears that Hensley ultimately returne d to work on April 21, 2008, but only on “light duty” (with limitations on activities such as lifting and overhead work) as recommended by his orthopedist. AR 75 [44], 83 [52], 540 [78], 659 [87]. Hensley’s medical and physical-therapy records show that he con tinued to suffer pain and a limited range of motion in his left shoulder over the next si x months. For example, on May 19, Hensley’s therapist reported tha t his shoulder “is still very w eak & pain in all planes of motion.” AR 492 [74]. The next day, the orth opedist reported that Hensl ey’s left shoulder “show[ed] much better range of motion,” and that Hensley was “[s]till hav ing pain, but overall doing okay.” AR 83 [52]. On June 30, Hensley’s therapist noted that he had “numbness” in his left hand. AR 498 [76]. Hensley also reporte d “pain and weakness w/ overhead activities” and “difficulty w/ gripping items.” Id. On August 19, Hensley said that “numbness & tingling in arm & shoulder bother him,” that he had pain when reaching overhead, and that he was “unable to grip onto things.” AR 76 [45]. Nonethele ss, his orthopedist ordered him discharged from physical therapy at that point. Id. The records contain a few explicit references to Hensley’s abil ity to perform ADLs. A note from his physical thera pist, dated April 9, 2008, stated t hat he was “still limited at home w/ self care and home care ADL s.” AR 495 [75]. On November 18, 2 008, Hensley underwent a “functional capacity evaluation” with a physical therapist at the request of his orthopedist, who5 wanted to determine whether Hensley could be released from ligh t duty. AR 68 [40], 468 [56]. Hensley reported that he conti nued to avoid using his left arm due to pain. AR 476 [64]. In a written questionnaire, he checked “ no” when asked if he needed “regular assistance with dressing.” AR 377 [55]. He a dded, “well I use slip on shoes s o I don’t need help, but it is tuff to do my work boots.” Id. The official re port of the evalua tion, dated December 11, 200 8, recorded further comments fr om Hensley on dressing and bathing: I have some difficulty but I can do it. Getting in and out of the deep whirlpool tub which I use every day because it makes the pain better (no grab bars), getting work boots on because I hav e to tie them and tuck the strings in (up to mid-calf). My son will often help me get them off at the end of the day. AR 472 [60]. Hensley also repor ted that he could not yet do ma ny household chores such as mowing the lawn or vacuuming. Id. The therapist recommended that Hensley remain on light duty due to his poor balance whe n using a ladder and his inabil ity to reach overhead. AR 471 [59]. Hensley continued to experie nce pain after November 2008. In J une 2009, he had surgery to repair th e torn labrum in his shoulder. AR 764 [91]

. C. Procedural History In April 2013, Hensley applie d for $100,000 in TSGLI benefits, claiming that his shoulder injury had left him unabl e to dress and bathe himself without assistance for at least 120 days, from February 20, 2008, t o August 20, 2008. AR 2 [2], 37 -39 [21-23]. His application included a signed certificati on of his claim by a physician, Dr . Hopkins. AR 32-39 [16-23]. Dr. Hopkins indicated that he ha d not personally observed Hensley’s injuries, but had instead reached his conclusions based on a review of Hensley’s medical records. AR 39 [23]. On June 27, 2013, the insurance compa ny that administers the TS GLI program notified Hensley by letter that his clai m had been denied. AR 41 [24]. The letter explained that “the6 medical documentation provided do es not indicate that your loss met the standards for TSGLI,” and that “a claimant must have b een unable to independently per form at least two activities of daily living (ADLs) for a pe riod of 30 consecutive days.” Id. The letter further explained that an applicant is unable to perform an ADL “independently” if he req uires either “physical assistance,” “stand-by assistance,” or “verbal assistance” to d o so. Id. The letter explained that Hensley could appeal the decisi on to “AFPC/DPFCS.” AR 41-42 [2 4-25]. 2 Hensley appealed, and received a l etter from “AFPC/DPFD” denyin g his appeal on October 10, 2013. AR 44 [27]. The l etter explained: “We re-ex amined your claim and additional documents provided w ith your appeal package. Unfortunately, the medical documentation does not support that you were unable to perform at least two of the six activities of daily living (ADLs) for at least 30 consecutive days.” Id. The letter further explained that Hensley could appeal again to th e AFBCMR or file suit in federa l court. Id. Hensley then appealed to the AFBCMR. In March 2014, he filed abrief arguing that an error or injustice existed because (1) the denial of benefits w as arbitrary in light of the medical evidence and the signed doctor’ s statement supporting Hensley’s claim and (2) the Air Force had failed to adequately advise Hensle y of the reason for the denia l. AR 16-17 [10-11]. The AFBCMR sought an advisory opi nion from “AFPC/DPFC” (apparen tly the same office that had handled Hensley ’s initial appe al). AFPC/DPFC i ssued a memorandum from Stephen T. Rose dated May 15, 2014 (the “Rose Memo”). AR 778-8 1 [92-95]. The Rose Memo laid out the standard for award ing TSGLI benefits, and then rel ayed discussions w ith the doctors who had reviewed Hensley’s initi al application and earlier appe al. AR 778-80 [92-94]. Those

2 The Court notes that AFPC/DPFC S is one of several Air Force ac ronyms in the record that the parties have regrettably not bothered to explain in their brief ing. “AFPC” appears to refer to the Air Force Personnel Center. See AR 778 [92].7 doctors were not named in the Rose Memo. See id. The doctor who had reviewed the initial application opined that Hensle y had shown loss of only one ADL (the ability to bathe himself) and only for 60 days. AR 779 [93]. The doctor noted that Hens ley “returned to work within one week after the accident and beginning 21 April could use his le ft (non-dominant) arm for minimal activities.” Id. He further reasoned that “the rapy notes mention limitations w ith selfcare ADLs, but the ROM [range-of-motion] measurements and treatment (sling only with no mention of movement restrictions ) suggest that he had the capac ity to dress himself.” AR 779- 80 [93-94]. The second doctor, who had reviewe d Hensley’s first appeal, rea ched a similar conclusion: The SM’s [service member’s] legal representative . . . contends that having one arm limited in function made it impossible for SM to dress himself without assistan ce. There is no direct eviden ce in the medical record that the SM could not dress himself due to functional limitations in his non-dominant left arm. [The lega l representative] cites a note fro m physical therapy in April 200 8 that stated “patient is still limited at home with self care an d ADLs.” This is a non-specific co mment and there is no evidence in the medical records provide d that SM could not perform some or all ADLs without assistance. “Still limited” could just as easily mean that it took the SM longer to perform some or all ADLs. B y the time this comment was made in the medical record, the SM ha d already been performing light duty at work for 2 months. [The legal representative] also i nsists the SM could not put on his shirt and pants due to lack of moti on, limitations, weakness, and the inability to perform overhead activities with his left arm (suc h as SM pulling a shirt over his head.) All of that disregards the fact that the SM had a perfectly good rig ht arm and the SM is righthanded. SM had persistent limitations in range of motion in th e left shoulder as well as weakness of grip and these symptoms extended well past 20 August 2008 but they did not create a medical necessity for assistan ce with dressing AND bathing for even 30 days, let alone the 120 days which SM claims.8 AR 780 [94]. The second doctor al so addressed Dr. Hopkins’ certification, noting that Dr. Hopkins “indicated he DID NOT obs erve the SM’s loss and I assum e he had no more information about SM’s case than w hat was in the medical record s submitted for review.” Id. After summarizing these convers ations, the Rose Memo provided the following analysis: On 21 Apr 2014, we received Staff Sergeant Hensley’s AFBCMR application asking that his TS GLI claim be approved. The burde n of proof is on Staff Sergeant Hensley to demonstrate he suffere d a scheduled loss as a result of hi s traumatic event. After revie wing the original claim and appeal, our position remains firm that S taff Sergeant Hensley does not meet TSGLI criterion for ADL loss due OTI for any payable threshold. I t is reasonable to believe tha t having an arm in a sling may make bathing and dressing more difficult; however, it is also rea sonable to believe that Staff Sergeant Hensley would be able to use the uninjured arm to perform the basic functions albeit at a slower pace. AR 781 [95]. Based on that analysis , the Rose Memo recommended that the AFBCMR deny Hensley’s appeal. Id. In June 2014, Hensley filed a lette r in response to the Rose Me mo. AR 783-84 [97-98]. In the letter, Hensley interpr eted the memo as concluding “thatthe medical information was not clear enough that SSGT Hensley in fact did suffer significant A DL loss.” AR 783 [97]. In order to “clarify” that issue, Hensl ey submitted an affidavit from hi s wife dated June 18, 2014. AR 783 [97], 785 [99]. In the affidavit, Hensley’s wife stated th at, “[d]uring the time period after his injury, I provided John both s tand by and physical assistance w ith bathing, washing hair, dressing, and undressing.” AR 785 [ 99]. The affidavit stated that Hensley “also needed assistance” sitting up a nd using the bathroom. Id. The affidavit further st ated that “Dr. Hopkins [sic] conclusion that John neede d assistance withADLs from at least between February, 20, 2008 and August 20, 2009 [sic] is consiste nt with what I did for Joh n, and witnessed as John’s caretaker.” Id. His wife concluded by noting t hat, “[t]o this day, John still needs my help in9 performing some tasks.” Id. Hensley offered to make his wi fe available for testimony befo re the AFBCMR. AR 783 [97]. In March 2015, the AFBCMR denie d Hensley’s appeal. The Board’s record of proceedings summarized Hensley’s arguments, some of the key fac ts in the record, the Rose Memo, and Hensley’s response. A R 2-6 [2-6]. The Board then co ncluded as follows: Insufficient relevant evidence has been presented to demonstrat e the existence of error or injus tice. After a thorough review o f the available evidence and the appli cant’s complete submission we a re not persuaded the applicant’s TSGLI application should be approved. We note the applican t’s spouse provides a sworn affidavit stating the applican t loss [sic] 120 days of ADL and still requires assistance due to the ongoing nature of his injuries. However, in our opinion, substant ial evidence has not been presented to successfully refut e the assessment of his case by the Air Force Office of Primary Responsibility (OPR). Therefore, w e agree with the opinion and recomm endation of the Air Force OPR [ i.e. , the Rose Memo] and adopt the rationale expressed as the basis for our decision that the ap plicant has failed to sustain his burden of proof of either an error or an injustice. Absent persuasive evidence that he was denied rights to which he was entitled, we find no basis to recommend granting the relief sou ght in this application. AR 5-6 [5-6]. The AFBCMR furthe r concluded that a hearing woul d not materially advance its understanding of the facts pres ented on the record. AR 6 [6]. In June 2016, Hensley filed the in stant lawsuit. He alleges th at the AFBCMR’s decision was arbitrary and capri cious insofar as it: did not provide justification as to why the greater weight of the evidence did not support [Hensley ’s] eligibility for TSGLI benefits; give any reasons why the certifying medical professional’s certification was not credible; address the Affi davit of Ms. Hensley attesting to he r observations and provision of assistance to [Hensley] during hi s recovery; or provide reasona ble or substantial evidence or m edical opinion contradicting [Hensley’s] claim for TSGLI benefits. ECF No. 1 ¶ 35. The parties subsequently filed the instant cro ss-motions for summary judgment.10 Standard of Review A court must grant summary judgment “if the movant shows that t here is no genuine dispute as to any material fact and the movant is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]hen a partyseeks review of agency actio n under the APA, the district judge sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001). “The ‘entire case’ on review is a question o f law.” Id. “Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistentwith the APA standard of review.” Alston v. Lew , 950 F. Supp. 2d 140, 143 (D.D.C. 2013). “Under the Administrative Procedure Act, a court may set aside an agency’s final decision only if it is ‘arbitrar y, capricious, an abuse of disc retion, or otherwise not in accordance with law.’” Ams. for Safe Access v. DEA , 706 F.3d 438, 449 (D.C. Cir. 2013) (quoting 5 U.S.C. § 706(2)(A)). “[I]n judicial revie w of agency action, weighing the evidence is not the court’s function. Rather, the question fo r the court is whether there is ‘such relevant evidence as a reasonable mind might accept as adequate to support’ the agency ’s finding . . . .” United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. PBGC , 707 F.3d 319, 325 (D.C. Cir. 2013) (quoting Consolo v. Fed. Mar. Comm’n , 383 U.S. 607, 620 (1966)). Courts “will not disturb the decision of an agency th at has examined the relevant data and articulated a satisfactory e xplanation for its action inclu ding a rational connection between the facts found and the choice made.” Ams. for Safe Access , 706 F.3d at 449 (alterations and internal quotations omitted). The agency must provide only a “ brief statement” of its decision, Amerijet Int’l, Inc. v. Pistole , 753 F.3d 1343, 1350 (D.C. Cir. 2014) (quoting 5 U.S.C. § 555( e)), and courts will “uphold a decision of less than ideal clarity i f the agency’s path may reasonably be discerned,” id. at 1351-52 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.11 Auto. Ins. Co. , 463 U.S. 29, 43 (1983)). However, t he court “may not supply a reasoned basis for an agency action that the a gency itself did no t give in the record under review.” Pierce v.
SEC , 786 F.3d 1027, 1034 (D.C. Cir. 2015). Mor eover, “an agency’s failure to respond meaningfully to objections raise d by a party renders its decisi on arbitrary and capricious.” PSEG Energy Res. & Trade LLC v. FERC , 665 F.3d 203, 208 (D.C. Cir. 2011) (a lterations and internal quotations omitted). In this Circuit, decisions by boards for correction of military records are typically reviewed “under an ‘unusually d eferential’ app lication of the a rbitrary or capricious standard.” Maneely v. Donley , 967 F. Supp. 2d 393, 401 (D.D.C. 2013) (quoting Kreis v. Sec’y of Air
Force , 866 F.2d 1508, 1514 (D.C. Cir. 1989)). This particularly def erential standard stems from statutory language providing tha t the Secretary of each service branch “ may correct any military record . . . when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1) (emphasis added); see Kreis , 866 F.2d at 1513-15. Given this language, “[p]erhaps only the most egregi ous decisions may be prevented.” Kreis , 866 F.2d at 1515. Courts have reasoned that this st andard is further justified be cause “courts are particularly unfit to review the substance of military personnel decisions.” Ey v. McHugh , 21 F. Supp. 3d 49, 55 (D.D.C. 2014). Courts have thus applied the “unusually deferen tial” standard t o cases involving personnel decisions base d on medical evidence. See Maneely , 967 F. Supp. 2d at 400-01. However, courts have held that th is deferential standard, while warranted in “a traditional military personnel matter,” is not always appropriate. Remmie v. Mabus , 898 F. Supp. 2d 108, 118-19 (D.D.C. 2012). In particular , when deciding legal issue s regarding whether an agency has properly adhered to its pro cedures, courts have afforded no more deference than they do when reviewing the decisions of civilian agencies. See id.12 As the Government notes, no court in this Circuit has addressed whether the unusually deferential standard should appl y when reviewing decisions by b oards for correction of military records in cases involving claims for TSGLI benefits. See Def.’s Cross-Mot. at 4. Hensley has argued that TSGLI decisions shoul d not receive unusually defere ntial review, and the Government has agreed, requesting no greater deference than tha t afforded by the traditional arbitrary-and-capricious standard. See Pl.’s Mot. at 4; Def.’s Cross-Mot. at 4-6. Because neither party has suggested that the Court should apply the unusually d eferential standard in this case, the Court will apply the traditional standard of review. Analysis Hensley makes a number of arguments for why the AFBCMR’s decisi on was arbitrary and capricious. These arguments are largely aimed at the Rose Memo, whose conclusions the AFBCMR adopted as its own. Specifically, Hensley argues that t he Rose Memo improperly relied on the opinions of unnamed doctors, see Pl.’s Mot. at 11, misapp lied the standard for awarding TSGLI benefits by imposing a requirement of “medical n ecessity,” see id. at 11-13, relied on speculation and disregarded the medical evidence in the record and Dr. Hopkins’ certification, see id. at 9-10, and failed to consider H ensley’s wife’s affidavit, see id. at 13; Pl.’s Reply at 1-3. The Court will consider these arguments in turn. “As a preliminary matter, the B oard did nothing improper by rel ying on an advisory opinion to render its decision.” McDonough v. Stackley , 245 F. Supp. 3d 1, 5 (D.D.C. 2017); see Roberts v. United States , 741 F.3d 152, 158-59 (D.C. Cir. 2014); Jackson v. Mabus , 56 F. Supp. 3d 1, 8-9 (D.D.C. 2014). Rather, boards routinely adopt such a dvisory opinions, and may do so provided that the opinions themselves are not arbitrary and cap ricious. See McDonough , 245 F. Supp. 3d at 5.13 Hensley’s first two arguments, that the Rose Memo improperly re lied on unnamed doctors’ opinions and wrongly impos ed a requirement of “medical necessity,” are easily disposed of. “It is a hard and fas t rule of administrative law , rooted in simple fairness, that issues not raised before an agency are waived and will not be consider ed by a court on review.”
Wallaesa v. FAA , 824 F.3d 1071, 1078 (D.C. Cir. 2016) (emphasis omitted) (quot ing Nuclear Energy Inst., Inc. v. EPA , 373 F.3d 1251, 1297 (D.C. Cir. 2004)), cert. denied , 137 S. Ct. 389 (2016). Hensley had the opportuni ty to raise both of these obj ections to the Rose Memo but did not do so. See AR 782-86 [96-100]. The AFBCMR’s decision cannot be deemed ar bitrary and capricious for failing to address arguments that Hensley never made. In any event, these two argum ents do not appear to hold water. Hensley has cited no authority for the proposition tha t a board for correction of mi litary records must identify its inhouse medical experts by name in a n advisory opinion summarizin g their views. Nor does the argument regarding “medical necessity” have any merit. One of the doctors in the Rose Memo concluded that Hensley had not s hown “a medical necessity for a ssistance with dressing AND bathing for even 30 days.” AR 780 [ 94]. Hensley argues that t he doctor thereby imposed a new standard of “medical necessity” in the sense of “something orde red by a medical doctor, like a prescription.” Pl.’s Mot. at 11. The Court is not persuaded. Hensley does not dispute that an applicant must show that he “re quired” assistance with ADLs to receive TSGLI benefits; indeed, he sought to meet this sta ndard before the agency. See AR 20 [14]. It is only logical that a doctor reviewing Hensley’s medi cal records would characterize anecessity arising from his injury as “medical necessity.” The statement thus merely repre sents one doctor’s application of the appropriate standard.14 Hensley further argues that the R ose Memo improperly disregarde d the medical evidence in the record, as well as Dr. H opkins’ statement, and instead r elied on “speculation.” See Pl.’s Mot. at 9-10. As an initial ma tter, Hensley nowhere suggests t hat the doctors who reviewed his earlier application did not have a ll of the relevant medical re cords he ultimately submitted to the AFBCMR for review. Moreover, the Rose Memo’s conclusions—that the medical records do not directly show that Hensley re quired assistance to bathe and dress himself, and that he could have continued to do so using hi s uninjured right arm, see AR 781 [95]—appear t o have at least some evidentiary support in the medical records. 3 And as other courts have held in TSGLI cases, the AFBCMR was justified in att aching little or no weight to Dr . Hopkins’ certific ation for the very reason stated by the unnamed d octors in the Rose Memo: tha t it was made years after the injury on the basis of the medi cal records alone, not first-han d knowledge. See Coker v. United
States , No. 3:15-cv-202 (JHM), 2016 W L 7242727, at *6 (W.D. Ky. Dec. 14, 2016); AR 780 [94]. Therefore, this argu ment, on its own, would likely not b e enough to conclude that the AFBCMR’s decision was arbitrary and capricious.

3 The Court notes a potential erro r in the Rose Memo that arguab ly draws its persuasiveness into question. One of the unnamed doctors stated that Hensley “had already been performing light duty at work for 2 months” by April 9, 2008, when his physical therapist reporte d that he was “still limited at home with self care and ADLs.” AR 780 [94]. Similarly, the othe r doctor stated that Hensley had returned to work one week after the accident. See AR 779 [93]. Both statements appear to be incorre ct, because Hensley seems to hav e returned to work on April 21, 2008, two months after the injury a nd after the date of the phy sical therapist’s report. See AR 495 [75], 540 [78]. It is possible th at these statements refle ct an incomplete review of the record: Hensley was initially ordered t o stay off work for only a week but appears to have subsequently been ordered to stay off work f or a longer period of time. See AR 82 [51], 540 [78], 553-54 [80- 81]. Nonetheless, Hensley overlook ed this poten tial error bothbefore the agency and in his briefing on summary judgment. Becau se the parties have not bri efed the issue, the Court will not conclude on this basis that the AFBCMR acted arbitrarily in ado pting the Rose Memo.15 Hensley is on firmer ground, however, when he claims that the a dvisory opinion failed to address his wife’s affidavit. See Pl.’s Mot. at 13; Pl.’s Re ply at 1-3. An advisory opinion, li ke any agency decision, is arbitrary and capricious if it fails to address meaningful objections that have been put before the agency. PSEG Energy , 665 F.3d at 208. As a corollary, it is arbitrary and capricious for an agency t o adopt an advisory opinion that addresses only the arguments and evidence contained i n an applicant’s prior submissions if the applicant has since presented new arguments or evidence. See McDonough , 245 F. Supp. 3d at 5-7. The Rose Memo obviously did not cons ider the affidavit of Hensl ey’s wife, which Hensley submitted in response to the memo. 4 Therefore, the AFBCMR had to grapple with that new evidence and could not rely on the Rose Memo to do so. The AFBCMR’s decision addressed the affidavit as fo llows: “We note the applicant’s sp ouse provides a sworn affidavit stating the applicant loss [s ic] 120 days of ADL and still requ ires assistance due to the ongoing nature of his injuries. Howev er, in our opinion, substantial e vidence has not been presented to successfully refute th e assessment of his case by the Air Force Office of Primary Responsibility (OPR).” AR 5 [5]. The issue is whether those two sentences pr ovide a “rational connection between the facts found and the choice made.” Ams. for Safe Access , 706 F.3d at 449. Hensley argues that they do not, and that th e AFBCMR failed to justify disregarding the affidavit. See Pl.’s Mot. at 10, 13. He cites cases holding that such “caregi ver statements” are significant

4 The Court also notes that neit her the AFBCMR’s decision nor th e Rose Memo addressed Hensley’s argument that the Air Force’s earlier decisions, in a ddition to being substantively incorrect, had not adequately e xplained their reasoning. See AR 2-6 [2-6], 16-17 [10-11], 778-81 [92-95]. But Hensley has not res umed that argument in his brie fing to this Court, and so the Court has no basis to conclude t hat this was a nonfrivolous arg ument that the Board was obligated to address.16 evidence and must be addressed i n TSGLI administrative proceedi ngs. Id. at 13 (citing Koffarnus v. United States , 175 F. Supp. 3d 769, 778-79 (W.D. Ky. 2016)). The Government offers two reasons why the AFBCMR’s treatment of the affidavit was proper. First, the Government argues, the AFBCMR did in fact w eigh all the relevant evidence; it simply concluded that the affi davit, “even coupled with [Hen sley’s] other submissions,” did not “overcome the contents of the medical records generated con temporaneously with the 2008 injury.” Def.’s Cross-Mot. at 23. Second, according to the Go vernment, the Board could have given the affidavit no weight at al l because it was “untrue” an d “fraudulent.” Id. The Government points to several documents in the record suggesting that Hensley was in fact separated from his wife and in arelationship with another woma n while he was recovering from the accident in 2008. See id. at 25 (citing AR 231 [53], 553 [ 80], 660 [88]). The Governmen t infers from those documents tha t Hensley’s wife was not in a po sition to make the observations set forth in her affidavit and must have lied. See id. at 23-26. Thus, the Government argues, the Board had a “rational basis” for disregarding the affidavit. See Def.’s Reply at 3-4. The problem for the Governmentis that it is not enough for the re to be some plausible basis for the Board’s decision; t he Board must express its reas ons for reaching that decision. Courts will, of course, “uphold adecision of less than ideal c larity if the agency’s path may reasonably be discerned.” Amerijet , 753 F.3d at 1351-52. Thus, courts have been willing to conclude that an agency “implic itly” considered and rejected ev idence it did not “explicitly address” where that eviden ce was obviously of no value. Roberts , 741 F.3d at 159. And courts have affirmed decisions by boards for correction of military re cords even when those decisions were “thinner than [they] should have been.” Jackson v. Mabus , 808 F.3d 933, 938 (D.C. Cir. 2015). But courts may not “supply a reasoned basis for an agen cy action that the agency itself17 did not give in the reco rd under review.” Pierce , 786 F.3d at 1034. Thus, when boards for correction of military records have rejected key evidence that, if true, would clearly establish the applicant’s entitlement to relief, courts have been unwilling t o infer reasons that the boards did not give. See Haselwander v. McHugh , 774 F.3d 990, 999-1000 (D.C. Cir. 2014). And an agency may not provide conclusorystatements in place of genuin e reasoning, because “[c]onclusory explana tions for matters involving a central fact ual dispute where there is considerable evidence in conf lict do not suffice to meet the de ferential standards of [judicial] review.” AT&T Wireless Servs., Inc. v. FCC , 270 F.3d 959, 968 (D.C. Cir. 2001). The Court cannot discern from the conclusory statements in the record why the Board discounted the affidavit of Hensl ey’s wife, which if fully cred ited would establish his claim for TSGLI benefits. Nothing in the A FBCMR’s decision suggests thatit found the affidavit to be fraudulent. The AFBCMR made no findings of fact about the affi davit’s credibility; it merely summarized the affidavit’s contents. See AR 5 [5]. And the AFBCMR’s decision does not mention any of the record eviden ce on which the Government now relies to argue that the affidavit was fraudulent (that is, the documents suggesting tha t Hensley and his wife were separated in 2008). See AR 2-6 [2-6]. Nor did the Boar d refer to any other record evi dence suggesting that the affidavit , even if not intentionally dishon est, should be given limited weight.
See id. This Court may not supply the r easons for a credibility findi ng that the AFBCMR never even hinted at. The D.C. Circuit’s decision in Haselwander is instructive. There, a veteran who had served in Vietnam sought to correcthis medical records, which did not reflect that he had been wounded in action and thus made hi m ineligible to receive the P urple Heart. See 774 F.3d at 991. In support of his applicati on, he provided contemporaneou s photographs of his medical18 treatment and a list of referen ces who would corroborate his st ory. See id. After the board for correction of military records denied his initial application, he moved for reconsideration and provided additional evidence: a letter from another veteran cor roborating his story and official reports of the events on the day he was wounded. See id. at 992. The board noted that “letters of support . . . clearly state that the applicant was wounded in a ction,” but concluded there was insufficient evidence to support his claim because there was “n o available medical record to corroborate the photograph.” Id. (emphasis omitted). The D.C. C ircuit held that the board’s reasoning defied logic: the entire purpose of the plaintiff’s application was to correct the allegedly deficient medical reco rds, yet the board had failed t o explain why the evidence submitted was insufficient to warrant a correction. See id. at 992-93. The court noted that the board had “never found that any of the evidence submitted by [the plaintiff] lacked credibility.”
Id. at 999. Moreover, the board had s tated its conclusion that th e evidence was insufficient in “boilerplate” language that mere ly parroted the relevant legal standard. Id. This case has many parallels with Haselwander . The AFBCMR adopted the reasoning of the Rose Memo, which had concluded—based on the unnamed doctors ’ review of Hensley’s medical records—that it was “reas onable to believe that Staff S ergeant Hensley would be able to use the uninjured arm to perform the basic functions albeit at a slower pace.” AR 781 [95]. But that conclusion was based in pa rt on the doctors’ reasoning tha t there was “no direct evidence in the medical record that [Hensley] could not dress himself” and that Dr. Hopkins’ certification was unpersuasive because he lacke d first-hand knowledge of Hens ley’s medical treatment. AR 780 [94]. As in Haselwander , the critical question before the Board was why the additional direct evidence provi ded—here, the affidavit of Hensley’s wife— did not adequately fill the gap that the Board had identified in the medical records. The AFBC MR, like the board in19 Haselwander , provided a summary of the affida vit that made its significanc e clear: if true, it would entitle Hensley to the relief he sought. See AR 5 [5]. Nonetheles s, like the board in
Haselwander , the AFBCMR failed to engage with that evidence in a meaningfu l way. Of course, there may well be agood reason for the Board to fin d that Hensley’s wife was lying; or that her memory was unr eliable six years after the fa ct; or that even if the affidavit was mostly true and Hensl ey’s wife had in fact assisted him with ba thing and dressing as she claimed, the medical records s till compelled the conclusion that her assistance was not actually required because Hensley could have performed those tasks on hi s own, albeit more slowly. But instead of pausing to make any s uch finding, the AFBCMR—again, like the board in
Haselwander —skipped ahead to conclude, in boil erplate language, that “subs tantial evidence has not been presented to successfully refute the assessment of his case by the Air Force Office of Primary Responsibility.” AR 5 [5]. 5 In short, the AFBCMR’s decision “omitted the critical step—conn ecting the facts to the conclusion.” Dickson v. Sec’y of Def. , 68 F.3d 1396, 1405 (D.C. Cir. 1995). Instead, its analysis consisted of a conclusory state ment “without providing an accou nt of how it reached its results.”
Id. For that reason, the Board “ha s not adequately explained the basis for its decision.” Id. The Court therefore concludes thatthe Board’s decision was arbitrary and capricious. While the Court will grant Hensle y’s motion to the extent he se eks remand to the Board, it will deny his motion to the ext ent he seeks an instruction t hat he be awarded the full amount of

5 Moreover, it is unclear whether this was even the right boiler plate. Neither party has pointed the Court to any authority that de scribes the AFBCMR’s standard of decision as requiring applicants to show “substantial evidence . . . to successfully refute” the decision of the relevant Air Force office. At the same t ime, Hensley has not argued tha t this sentence misstated the relevant standard of decision, a nd so the Court does not rely o n this point in deciding that the decision is arbitrar y and capricious.20 his claim. See Pl.’s Mot. at 14. The Court has not concluded that the record compels such an outcome. The flaw in the AFBCMR’ s decision was that it failed to adequately explain its reasoning, and there is no guarantee whatsoever that a well-rea soned decision will be favorable to Hensley. Therefore, the correct remedy is to vacate the AFB CMR’s decision and to remand the case. See, e.g. , Banner Health v. Price , 867 F.3d 1323, 1356-57 (D.C. Cir. 2017); Bates v. Donley , 935 F. Supp. 2d 14, 26 (D.D.C. 2013); Remmie , 898 F. Supp. 2d at 119-20.
Conclusion For all of the above reasons, the Court, in a separate order, GRANTS IN PART and
DENIES IN PART Hensley’s motion, DENIES the Government’s motion, VACATES the AFBCMR’s decision, and REMANDS the case to the AFBCMR for further proceedings consistent with this Opinion. /s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: February 22, 2018