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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Senior Judge Richard P. Matsch

Civil Action No. 11-cv-02584-RPM

KEVIN STRINGER

RYAN O’NEILL;

JOAQUIN MARTINEZ;

CHRISTOPHER ANDERSON; and

WILLIAM LEGER, III, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

AS TO PLAINTIFF RYAN O’NEILL 

AND ORDER FOR REMAND

On September 12, 2011, Ryan O’Neill submitted an application for benefits under the

Servicemembers’ Group Life Insurance Traumatic Injury Protection Program (“TSGLI”). He

was informed of the denial by a letter dated September 28, 2011, from the Office of

Servicemember Group Life Insurance (OSGLI), saying:

Because medical documentation does not support your inability to perform two or

more ADLs for at least 30 consecutive days, your branch of service could not

approve your claim. 

(Def.’s Ex. 1 at 000001- 3). 

That letter advised O’Neill of his right to appeal to the U.S. Army Human Resources

Command within one year of denial which appeal should contain “The reason why you disagree

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with our determination.” (Id. at 000002). Rather than filing that appeal, O’Neill joined with

other plaintiffs in filing this civil action for judicial review under 38 U.S.C. § 1975. That statute

provides

The district courts of the United States shall have original jurisdiction of any civil

action or claim against the United States founded upon this subchapter [38 USC

§ 1965 et seq.].

Paragraph 4 of the complaint alleges:

This class action is brought on behalf of all service members of the Army

who submitted claims for disability benefits under the Activities of Daily Living

provision of the Servicemembers’ Group Life Insurance Traumatic Injury

Protection Program and received an adverse decision stating that a member’s loss

did not meet the requirements for a loss under TSGLI.

Paragraphs 22 and 23 allege:

Furthermore, the Army is uniformly violating its own guidelines for

denying claims by failing to provide Loss Codes that adequately advise the

applicant of the reason for a denial. Instead, the denial letter simply states in each

case that “the documentation provided did not indicate that you meet the TSGLI

standards for loss of Activities of Daily Living (ADL).” These denial letters are

clearly “boilerplate” letters that provide no substantive information to the

applicant, only miming Reason 3 of the 17 Loss Codes, and does not address the

medical professional’s certification of qualification under the ADL criteria. 

(Example of Denial letter - Exhibit C). In addition, the Defendant is obligated to

notify unsuccessful applicants of their right to file suit, but fails to do so, leaving

the class members with no understanding that they have legal recourse.

Despite its legal and contractual obligations, the Army has standardized

the practice of denying ADL claims in a manner that is arbitrary, unsupported by

its own guidelines, and contrary to law.

In 2005 Congress enacted an addition to the Servicemembers’ Group Life Insurance

(SGLI) program to provide benefits for losses caused by a “traumatic injury.” 

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The Department of Defense and a private insurer, the Office of Servicemembers’ Group

Life Insurance, a subsidiary of Prudential Insurance Company of America, are also participants

in administering the program. 

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Administration of SGLI and TSGLI benefits is within the responsibilities of the

Department of Veterans Affairs (VA).1 The authorizing legislation is codified at 38 U.S.C.

§ 1980A and the VA’s regulations are at 38 C.F.R. § 9.20. The statute provides for payment of

defined benefits for “qualifying losses” including the inability to carry out specified activities of

daily living (ADLs) resulting from traumatic injury to the brain. 38 U.S.C. § 1980A(b)(1)(H). 

The VA’s regulation expands the coverage to include other traumatic injuries and establishes

schedules of payments for specific injuries with additional payments for the inability to perform

at least two ADLs for consecutive days which differ depending upon whether the injury involves

the brain. The maximum payment for losses resulting from a single traumatic event is $100,000. 

The procedure for obtaining these benefits is prescribed in detail in the TSGLI Procedures Guide

issued by the VA. (Pl.’s Ex. 1). 

A member must submit an application for TSGLI benefits to the member’s branch of

service. The application form has two parts. Part A consists of the member’s claim information

and authorization to release medical information. Part B is a statement from a medical

professional on a fill-in-the-blanks format.

The TSGLI office of the member’s branch of service is responsible for determining

whether the member is covered by the TSGLI program and whether he or she sustained a

qualifying loss. After its determination, the service branch notifies OSGLI which then either

pays the claim or notifies the claimant of the denial.

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Presumably this is a misspelling of “rhizotomy,” an interruption of the roots of nerves

within the spinal canal. Dorland’s Medical Dictionary. 

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O’Neill submitted his claim to the U.S. Army TSGLI office claiming that because of an

injury from an automobile collision on August 9, 2010, he was unable to bathe, dress or toilet

without assistance from August 9, 2010 to at least September 12, 2011. (Def.’s Ex. 1 at 000007-

11). O’Neill submitted 220 pages of supporting documentation. In Part B of O’Neill’s

application, his treating physician, Dr. Alann German, D.C., described the injury as “severe pain,

restricted range of motion, “rhizunomy.” (Id. at 000015).2

 The doctor wrote that his patient was

unable to bathe, dress and toilet independently because he was “unable to flex lower back – dress

lower extremity.” (Id. at 000015-16). In the space for comments, Dr. German wrote as follows:

The injuries sustained included herniated and bulging discs in the neck and lower

back with significant muscle and ligament damage. Thus rendering him unable to

perform daily activities.

(Id. at 000017). 

The TSGLI Procedures Guide requires that after initial review for completeness by an

intake staff member the claim is reviewed by an analyst who makes a recommendation which is

then reviewed by a senior analyst and, finally, by a certifying officer who compares the claimed

losses with the submitted documentation and makes the final decision for the Army, approving

or disapproving the claim. If the claim is disapproved the decision is annotated on a certification

worksheet by the certifying officer. That worksheet provides for the use of Loss Description

Codes consisting of 16 reasons for denial. In this case, Captain James F. Addis, the certifying

officer, gave number 3 as the reason. It states as follows:

medical professional’s statement did not indicate the member’s loss met the minimum

TSGLI standard. 

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(Def.’s Ex. 1 at 000006). 

That statement is false if Part B of O’Neill’s application is taken at face value – that is, if

Dr. German’s assessment of his patient’s condition is a correct medical opinion.

The judicial review under 38 U.S.C. § 1975 is assumed to be analogous to an action

pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 706(2). Based on the filed

administrative record, the government filed a motion for summary judgment asserting that the

documents admitted with O’Neill’s application provide substantial evidence that he did not meet

the standard for the claimed losses. That assertion may be correct but the APA requires that an

agency decision shall be set aside if it is found to be arbitrary, capricious or an abuse of

discretion.

In addition to marking the disposition code 3, Captain Addis printed under Comments:

MM – 09/21/11 – Documentation indicates SM does not meet standards for

claimed losses.

(Def.’s Ex. 1 at 000006). The date accompanying the signature is September 23, 2011. That

comment is apparently the basis for the language of the denial letter. Notably, Captain Addis did

not make Loss Disposition Code 14 which reads:

14 insufficient information to support the medical professional’s statement.

(See id.). 

It is unreasonable to assume that there was the same detailed review of the applicant’s

documentation that government counsel has made in support of this summary judgment motion

during the 10 business days that this application was in the claims office at Fort Knox. Neither

the statute nor the regulations require that the Army make specific findings of fact or give a full

explanation of its decision. The lack of any explanation gives this court no basis for reviewing

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the decision. In a similar situation, the Court of Appeals for the District of Columbia ruled that a

decision of the Army Board of Correction of Military Records was arbitrary and capricious

because that standard under the APA mandates that the agency adequately explain its result. 

Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995). 

In this case O’Neill was given no chance to respond to the denial decision by challenging

whatever deficiencies were claimed to be in his submission. An administrative appeal would

have been futile as would any effort to supplement the records as, by example, giving

Dr. German an opportunity to explain his statements in Part B.

The defendant’s motion for summary judgment is denied. It is not necessary that the

plaintiff file such a motion because after judicial review it is this Court’s finding and conclusion

that the denial of his application was arbitrary and capricious and, therefore must be set aside.

It would be a just result for this Court to now order that the benefits be paid. 

Unfortunately the APA does not provide jurisdiction for that remedy. The basis for this ruling is

the failure of the Army to provide a reasoned explanation for its decision. This court cannot

make its own factual determination of O’Neill’s claim of inability to perform two or more ADLs

for at least 30 consecutive days.

Upon the foregoing, it is 

ORDERED, that the decision denying Ryan O’Neill’s application for benefits under

TSGLI is vacated and this matter is remanded to the United States Army for further

consideration which shall include an opportunity for the claimant to respond to any asserted

deficiencies in the documentation previously provided by submitting any additional relevant

materials

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Dated: December 13, 2013

 BY THE COURT:

s/Richard P. Matsch

_________________________________

Richard P. Matsch, Senior District Judge

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