I:\28962 Indiana Law Rev 47-2\47masthead.wpd


REFRAMING AND RECONSTITUTING NORMATIVE VIEWS OF
MILITARY TRAUMA:  MOVING BEYOND GENDERED

PARADIGMS AND CORRECTING POLICIES THAT UNDULY
AND UNLAWFULLY SUBJECT NON-COMBAT TRAUMA

CLAIMS TO STRICTER SCRUTINY

JOEL MARRERO*

INTRODUCTION

“Trauma” is a troublesome term in military law and culture.  The term is
inconsistently and incoherently defined in legal, policy, and historical settings. 
Its conceptualizations can take on feminine or masculine and visible and invisible
forms.  In a time of war and imminent military drawdown, when many service
members are expected to return home injured, it is imperative to use a definition
of trauma that comprehends the manifold challenges wounded service members
experience as they transition into civil society and encounter the realities of
military-related trauma.  A focus on the intense interpretative conflicts between
combat trauma and other forms of trauma that are conveyed through law and
public discourse can contribute to such a project.  A richer understanding of what
constitutes trauma not only emboldens our collective will to care for those who
have sacrificed much to defend us, but can also improve legal and policy
interventions.

One program that defines trauma in a troubling way is the Traumatic Injury
Protection Servicemember Group Life Insurance (“TSGLI”) program, which
Congress created in 2005 to address the financial hardships that some severely
wounded service members experience.1  TSGLI provides a service member who
sustains certain traumatic injuries some financial assistance while rehabilitating.2 
Yet, not all service members who qualify for compensation under the law’s
eligibility criteria are approved for compensation.3  A 2009 report by the

* Joel Marrero is a fair housing and civil rights attorney with the Southern California
Housing Rights Center.  When this Article was written, he was a law fellow, attorney, and faculty
at the Institute for Military Personnel, Veterans, Human Rights & International Law & AMVETS
Legal Clinic at Chapman University.  He obtained a Bachelor of Arts in Anthropology at Columbia
University and Juris Doctorate with a contraction in Critical Race Studies at the UCLA School of
Law.  He is grateful to Professor Kyndra Rotunda and the Military Law Institute and AMVETS
Legal Clinic for their unconditional support.  This Article is dedicated to the brave military women
and men who put their lives at risk in service of this country.

1. Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, Pub. L. No. 109-13, 119 Stat. 231 (2005); 38 U.S.C. § 1980A (2013).

2. TSGLI PROCEDURES GUIDE, Traumatic Injury Protection Under Servicemembers’ Group
Life Insurance (TSGLI) 2.16 (The Dep’t of Veterans Affairs 2012) [hereinafter TSGLI GUIDE].

3. See generally U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-108, TRAUMATIC BRAIN
INJURY:  BETTER DOD AND VA OVERSIGHT CAN HELP ENSURE MORE ACCURATE, CONSISTENT,
AND TIMELY DECISIONS FOR THE TRAUMATIC INJURY INSURANCE PROGRAM (2009) [hereinafter
GAO REPORT].



510 INDIANA LAW REVIEW [Vol. 47:509

Government Accountability Office found that the Department of Veteran Affairs
(“VA”) and Department of Defense (“DOD”), through the branches of service,
may have wrongfully denied claims in significant numbers.4  The report partly
attributed this finding to ambiguities in the eligibility criteria and confusion
among medical service providers.5 

The source of wrongful denials may lie somewhere between confusion among
service providers and claimants, on the one hand, and government-promulgated
administrative procedures that contravene and attempt to supplant the statute and
regulations, on the other.6  The administrative guidelines subject certain types of
claims, namely claims for trauma sustained outside of combat, to stricter scrutiny
than claims for combat-related trauma.7  Under the VA’s standards,8 those who
are injured in combat are likely to qualify, while those who are not injured in
combat but are in fact eligible under the law, face a greater likelihood of receiving
a denial letter.9  And yet the law does not distinguish between combat and non-
combat wounds.  The law, however, does disregard a host of other traumas, such
as Post Traumatic Stress Disorder (“PTSD”) and traumas caused by assaults
within the military, such as Military Sexual Trauma (“MST”).10  While the law
recognizes a certain set of traumas as compensable11 and the administrative
procedures recognize a narrower subset of traumas as compensable,12 neither
recognize trauma in a robust and holistic sense.  The hierarchy between combat
trauma and non-combat trauma trades on a culture that presents the visibly
combat-wounded soldier as the chief victim of military service.  And herein lays
the source of conflicts between policy and law, on the one hand, and reality on
the other.  

This Article argues that the value system and culture presenting the combat-
wounded soldier as the paradigmatic victim of military service are at the root of
the interpretive conflicts.  A paradigm of thought, centered on a culture, belief
system, and set of assumptions, idolizes the soldier as a combat warrior.  The
wounded combat-warrior is the idyllic representation of heroism, bravery, and
sacrifice.  The combat-warrior is the chief and only protagonist in a narrative that
underwrites support for the TSGLI legislation and its promulgation in the

4. Id. at 4.
5. Id. at 25.
6. See infra Part III.
7. See infra Part III.
8. SGLI Traumatic Injury Protection Program (TSGLI), U.S. DEP’T. OF VETERANS AFFAIRS

(Nov. 14, 2013, 8:13 PM), http://benefits.va.gov/insurance/tsgli.asp, archived at http://perma.cc/
5CZ8-CPSX.

9. See infra Part I.A.1.
10. Traumatic Servicemembers’ Group Life Insurance Frequently Asked Questions, DEP’T

OF VETERANS AFFAIRS 2 (2008), available at https://www.hrc.army.mil/site/crsc/tsgli/documents/
TSGLI_FAQ_w_Benefits_Expansion_12022008.pdf, archived at http://perma.cc/E4Y8-HX5R
(excluding psychological and mental illnesses and disorders as covered under TSGLI).

11. See 38 C.F.R. § 9.20(f) (2013).
12. See TSGLI GUIDE, supra note 2.



2014] REFRAMING AND RECONSTITUTING 511

administrative procedures.  
The paradigm is far from gender-neutral and, in actuality, is imbued with a

long history of exclusionary beliefs, biases, and policies.13  While it places one
aspect of military service at the apex of heroism, it also obfuscates other aspects
of military service, sacrifices, and contributions.  The paradigm even works to the
detriment of the very service member whose prerogative it appears to advance
because it does not account for other types of wounds, such as wholly invisible
psychological wounds, incurred in all forms of service,14 and disregards
vulnerabilities that service members face outside the battlefield.  This dated
paradigm fosters conflict on the micro level between the administrative
procedures and statute, and on the macro level between narrow perceptions of
military trauma and the comprehensive reality of military service.  

The Article proceeds in the following manner:  Part I discusses the
background of the TSGLI legislation, pertinent issues identified by the GAO
Report, and an example of a claim for non-combat trauma that was denied under
the VA’s and DOD’s rigorous administrative guidelines.  Part I concludes that
under the TSGLI disability program, wounds are conceived on a continuum and
subject to different levels of scrutiny:  visible combat wounds receive the greatest
recognition, followed by physical combat wounds that result in invisible injuries,
followed by non-combat related wounds recognized under the statute, and
wounds that receive no recognition whatsoever.  This continuum exists despite
the statute and regulations, which make no distinctions between non-combat and
combat trauma.  

Part II explains the conflict on a macro level, namely attributing the
difference in trauma recognition to a normative framework, set of beliefs, and a
paradigm of thought that views combat as the authentic and primary source of
military trauma.  Part III then explains how administrative law principles can
arbitrate the interpretative conflict between definitions of trauma found in the
administrative procedures or administrative decisions and those found the statute
and regulations.  The section concludes that when administrative procedures
subject a claim to greater scrutiny because the claim fails to adhere to a normative
conception of military trauma, principles of administrative law affords the
claimant some recourse.  

Because principles of administrative law have their limits in assisting a
wrongfully denied claimant, Part IV proposes a special set of federal court cases
that could tip the scale in favor of the service member.  The Article concludes that
recognition of trauma grounded in the multiple dimensions of military service and
free from gender bias is critical to shaping our collective understanding of the
risks inherent with military service, as well as fashioning effective policies and
laws aimed to give service members care and relief.

13. See infra note 103 and accompanying text. 
14. Id.



512 INDIANA LAW REVIEW [Vol. 47:509

I.  TSGLI BRIEF HISTORY

Before we can improve the lives of wounded service members, it is critical
to understand how military benefits operate.  

A.  TSGLI Background
On May 11, 2005, the U.S. Congress enacted Public Law 109-13, codified

in Section 1980A of Title 38 of the United States Code, which created the
Traumatic Injury Protection Servicemembers’ Group Life Insurance (“TSGLI”)
program, effective December 1, 2005.15  TSGLI was designed to offset the
financial hardships that traumatically injured service members incur during
treatment and rehabilitation periods regardless of where they are injured.16 
According to the VA and congressional records, military service members who
are totally and permanently injured commonly incur financial costs directly
associated with the long and arduous treatment and rehabilitation period.17  

Take the example of an injured soldier returning to the United States from
deployment.  Ordinarily, the soldier is first brought to a field hospital, then to
Landstuhl Regional Medical Center in Germany, and finally to Walter Reed
National Military Medical Center, located in the Washington, D.C. area.18 
Depending on the severity of the injury and type of treatment required, the soldier
can remain in convalescence between hospitals for days if not weeks.19  The
financial burden generally sets in when family members travel from far and wide
to be at the bedside of the injured soldier.20  In many instances, family members
relocate to Washington, D.C. indefinitely.21  The costs brought on by new or
additional living expenses, travel, lodging, and sometimes job loss, not to
mention loss of future employment opportunities, can be onerous.22  TSGLI is
designed to relieve some of that burden by providing immediate financial relief
in the form of lump-sum payments ranging anywhere from $25,000 to
$100,000.23 

The statute requires the VA to define the losses payable under TSGLI,
prepare the regulations, and write procedures.24  In practice, the VA implements
the regulations and procedures, while the DOD, through each branch of service,
decides TSGLI claims.25  Of particular importance is a feature of the statute,

15. Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, Pub. L. No. 109-13, 119 Stat. 231 (2005); 38 U.S.C. § 1980A (2013).

16. See generally 38 U.S.C. § 1980A (2013).
17. GAO REPORT, supra note 3, at 7.
18. KYNDRA MILLER ROTUNDA, MILITARY AND VETERANS LAW 78-79 (West 1st ed. 2011).
19. Id.
20. Id.
21. Id.
22. Id.
23. 38 C.F.R. § 9.20 (2013); see also GAO REPORT, supra note 3, at 9.
24. 38 U.S.C. § 1980A(b)(1) (2013).  
25. GAO REPORT, supra note 3, at 10.  TSGLI is implemented as an insurance rider to the



2014] REFRAMING AND RECONSTITUTING 513

which extends coverage to service members who are injured on or after December
5, 2005, for a traumatic injury sustained anywhere.26  To qualify for TSGI, a
service member must show a traumatic injury directly resulting from a traumatic
event.27  Under the legislation’s granting authority, the VA created an “other
traumatic permanent injury category to act as a “catch-all.”28  This “other
traumatic injury” category is meant to cover injuries not specifically enumerated
in 38 U.S.C. § 1980A, but instead found in 38 C.F.R. § 9.20, injuries that may
nevertheless be the product of combat trauma.29

Servicemembers’ Group Life Insurance (“SGLI”) plan and coverage is automatic upon entry into
service with premiums at $1 per month for those with full-time SGLI coverage.  Id.  The DOD,
through the branches of service, pays any claims in excess of the premiums received.  Id. at 1. 
Although the program was broadly modeled after commercial Accidental Death and
Dismemberment (“AD&D”) insurance coverage, TSGLI differs from AD&D commercial policies
to account for the unique needs of military activity.  Id.  For instance, a military service member
who is permanently disabled, unable to continue in the military, and qualifies for TSGLI may also
qualify for military disability benefits.  Once that military service member is medically separated,
he or she may also qualify for VA disability benefits.  For VA disability benefit requirements, see
generally Disability Compensation, U.S. Dep’t of Veterans Affairs (Nov. 14, 2013, 9:33 PM),
http://www.va.gov/explore/disability-compensation.asp?gclid=CJ7ruNLf5boCFcZV4god-HUALA,
archived at http://perma.cc/MN36-TWY5.

26. 38 U.S.C. § 1980A(a)(1) (2013).
27. Specifically, the claimant must:  (1) show a qualifying injury or loss directly caused by

a (2) traumatic event which occurs before midnight on the day that the member separates from the
uniformed services, (3) show injury or loss that manifests within 730 days (two years) of the
traumatic event, and (4) survive for at least seven days from the date of the traumatic injury.  38
C.F.R. § 9.20(d) (2013).  The legislation and regulations provide some important eligibility caveats. 
An injury cannot be caused by a mental disorder, mental or physical illness or disease, unless
caused by pyogenic infection, biological, chemical or radiological weapon.  Id. § 9.20(e)(4). 
TSGLI also does not cover attempted suicide or injuries sustained while committing or attempting
to commit a felony, injuries caused by self-inflicted wounds, medical or surgical treatment of an
illness or disease, or willful use of an illegal or controlled substance, unless administered or
consumed on the advice of a medical professional.  Id. § 9.20(e)(3).  The regulations also identify
the schedule of losses.  Some examples include $50,000 for the total and permanent loss of speech,
$25,000 for total and permanent loss of hearing in one ear, and $100,000 for paralysis such as
quadriplegia, paraplegia, and hemiplegia.  Id. § 9.20(f).

28. See Veterans’ Housing Opportunity and Benefits Improvement Act of 2006, Pub. L. 109-
233(4)(b), 120 Stat. 397; 38 U.S.C. § 1980A (2013).  See also Servicemembers’ Group Life
Insurance Traumatic Injury Protection Program—Genitourinary Losses, FEDERAL REGISTER,
https://www.federalregister.gov/articles/2011/12/02/2011-31020/servicemembers-group-life-
insurance-traumatic-injury-protection-program-genitourinary-losses (last visited July 9, 2014).

29. (1) Inability to perform certain daily activities (“ADL”) for at least 30 consecutive days,
(2) hospitalization for at least 15 consecutive days, or (3) hospitalization and inability to perform
activities of daily living for specified periods of time.  38 C.F.R. § 9.20(f) (2013).  The ADLs are
(1) bathing, (2) continence, (3) dressing, (4) eating, (5) toileting, and (6) transferring in and out of
bed or a chair.  Id. § 9.20(e)(5)(vi).  If the claimant can show an inability to perform two of these



514 INDIANA LAW REVIEW [Vol. 47:509

B.  Recognized and Non-Recognized Wounds Exist Along a Continuum
Per 38 U.S.C. § 1980A(a)(2), payment is granted, “if a member suffers more

than one such qualifying loss as a result of traumatic injury from the same
traumatic event.”30  Section 1980A(b)(1) of 38 U.S.C., the section awarding
TSGLI benefits to eligible service members, states, “a member who is insured
against traumatic injury under this section is insured against such losses due to
traumatic injury (in this section referred to as “qualifying losses”) as are
prescribed by the Secretary by regulation.”31  The regulation promulgating the
statute, 38 C.F.R. § 9.20(b)(1), defines traumatic event as “the application of
external force, violence, chemical, biological or radiological weapons, or
accidental ingestion of a contaminated substance causing damage to a living
being.”32  Section 9.20(c)(1) of 38 C.F.R. defines traumatic injury as “physical
damage to a living body that is caused by a traumatic event as defined in
paragraph (b) of this section.”33  The regulations continue by defining the
exclusions to “traumatic injury” and “traumatic event.”  Because the term
“traumatic event” modifies the term “traumatic injury,” a qualifying “traumatic
injury” is one that is caused only by a “traumatic event” as defined by the statute
or regulation.34  

While the regulations provide guidance on what constitutes a “traumatic
injury” and “traumatic event,”35 the VA promulgates TSGLI procedures to guide
claim adjudicators in determining whether a claim meets the criteria set forth in
the statute and regulations.36  The guide defines “traumatic event” as the “the
application of external force, violence, chemical, biological, or radiological
weapons, accidental ingestion of a contaminated substance, or exposure to the
elements that causes damage to the body.”37  External force is “force or power
that causes an individual to meet involuntarily with an object, matter, or entity
that causes the individual harm.”38  However, the term “involuntary,” which
materially modifies “external force,” is absent from the legislation39 or

six functions for a period of 30 consecutive days, he or she can recover $25,000.  Id. § 9.20(f).  For
each additional thirty days the claimant is entitled to an additional $25,000, but no more than
$100,000.  Id.  A service member with a traumatic brain injury, an injury also not specifically
enumerated, can also recover under TSGLI if they are in a coma or can demonstrate an inability
to perform two of the six ADLs after only fifteen consecutive days instead of thirty.  Id. 

30. 38 U.S.C. § 1980A(a)(2) (2013).
31. Id. § 1980A(b)(1).
32. 38 C.F.R. § 9.20(b)(1) (2013).
33. Id. § 9.20(c)(1).
34. Id. § 9.20(c)(1).
35. See generally id. § 9.20(b)-(c).
36. See generally TSGLI GUIDE, supra note 2.
37. Id. at 4.
38. Id.
39. See generally 38 U.S.C. § 1980A (2013).



2014] REFRAMING AND RECONSTITUTING 515

regulations.40
Under the “involuntary external force” criteria set forth by the VA in its

procedures guide,41 service members injured in combat are more likely meet the
criteria while service members injured in non-combat situations are likely to be
denied.  However, under 38 U.S.C. § 1980A and 38 C.F.R. § 9.20, a service
member who sustains a traumatic injury anywhere may be eligible for
compensation,42 regardless of whether they are in engaged in combat.  For
instance, if a full time active duty service member is traumatically injured during
a basketball game while on leave, under 38 U.S.C. § 1980A and 38 C.F.R. § 9.20
the service member may be eligible.  The application of the “involuntariness”
standard in the administrative procedures would likely lead an adjudicator to find
that the basketball game was not involuntary.  Conversely, an adjudicator would
be remiss to deny a claim from a soldier who is accidentally injured during
combat, an ultra-hazardous activity that carries a greater risk of “involuntary”
trauma.  Indeed, it is coincidence that the administrative guide is replete with
examples of combat trauma as claims that are likely to be recognized for
compensation.43

Despite the friction between the standards in the regulations and the standards
in the administrative procedures, the law and administrative procedures together
illustrate concepts of compensable and non-compensable injuries along on a
continuum:  claims for visible combat wounds receive the greatest recognition;
claims for invisible combat wounds sustained physically, like traumatic brain
injury, are legally recognized but in practice are difficult to prove; claims for
visible non-combat wounds are in legal-limbo status where they are recognized
by law but in practice face a likelihood of denial; and all other wounds, including
invisible wounds of combat that have a tenuous physical connection such as
PTSD or trauma caused by assault within the military, i.e., MST, are at the
bottom of the hierarchy receiving no legal recognition for purposes of TSGLI.44 
The following subsections illustrate this continuum.  

1.  Combat Wounds Receive Greatest Recognition.—A statement delivered
by former Senator Larry Craig of Idaho in support of the TSGLI amendment
demonstrates the genesis of the program and the centrality of soldiers visibly
injured in the course of combat as the chief benefactors of the program.  On April
21, 2005, Craig made remarks before the Senate to discuss TSGLI.45  Craig stated

40. The guide further elaborates on external force indicating, “there is a distinct difference
between internal and external forces. ‘Internal forces’ are forces acting between body parts, and
‘external forces’ are forces acting between the body and the environment, including contact forces
and gravitational forces as well as other environmental forces.”  TSGLI GUIDE, supra note 2, at 4. 
Like the regulations, the procedures guide defines “traumatic injury” as the “physical damage to
your body that results from a traumatic event.”  Id.

41. Id.
42. 38 U.S.C. § 1980(A) (2013); 38 C.F.R. § 9.20 (2013).
43. TSGLI GUIDE, supra note 2, at 8; 12; 13.
44. 38 C.F.R. § 9.20(f) (2013).
45. 151 CONG. REC. S4094-02 (daily ed. Apr. 21, 2005) (statement of Sen. Craig) [hereinafter



516 INDIANA LAW REVIEW [Vol. 47:509

he wanted to discuss the “tremendous gap in the coverage that exists in the
treatment of the soldiers, sailors, marines, and airmen” fighting in Afghanistan
and Iraq at the very moment the remarks were being delivered.46  According to
Craig, “it is widely known that due to the incredible advances in medicine,
service members who may not have survived life-threatening injuries in previous
wars are now making it back home alive from Iraq and Afghanistan.”47 
Unfortunately, these service members, “must live with injuries that may have left
them without their limbs, sight, hearing, or speech ability, or even more.”48  These
service members generally return home through, and remain at, the Walter Reed
National Military Medical Center where they “learn, through physical and
occupational therapy, how to reengage back into society.”49

During this rehabilitation period, these service members incur acute financial
hardships.  “For many Guard and Reserve members at Walter Reed, they already
have foregone higher paying civilian jobs prior to their deployment.”50  The more
time spent in recovery the greater the financial stress.51  In addition, “family
members of injured soldiers bear the burdens necessary to travel from great
distances to provide the love and emotional support that is absolutely essential for
any successful rehabilitation.”52  Hence the genesis and purpose of TSGLI, to
provide “immediate payment [which] would be to give injured service members
and their families the financial cushion they need to sustain them before their
medical discharge from the service, when veteran benefits kick in.”53  

Senator Craig specifically invoked the story of Army Staff Sergeant, Heath
Calhoun, who “had both of his legs amputated after being struck during a rocket-
propelled grenade attack in Iraq.”54  Craig spoke about the “financial problems
[Sgt. Calhoun] had endured after [his wife] quit her job to be with Heath during
convalescence.”55  Although the family was able to barely meet their financial
needs during the whole year that it took the military to medically discharge him,
that period was an “extremely trying period.”56  Craig closed his remarks by
reminding his colleagues to “be vigilant in our care for those who are still fighting
to regain the normalcy of the lives they enjoyed prior to sustaining catastrophic
injuries in the defense of our freedoms.”57

While Senator Craig’s April 21, 2005, statement before Congress may seem

Craig Statement].
46. Id.
47. Id.
48. Id.
49. Id.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id.
56. Id.
57. Id.



2014] REFRAMING AND RECONSTITUTING 517

like a one-off, on September 7, 2006, Craig, as the chairman of the United States
Senate Committee on Veterans’ Affairs, held a hearing entitled “Hearing on
Wounded Warrior Insurance:  A First Look at a New Benefit for Traumatically
Injured Servicemembers.”58  At the hearing, Craig presented testimony from a
combat-wounded soldier to tout the benefits that soldiers, who are injured in
combat, drive from the program.59  Interestingly, rather than referring to the
program as TSGLI, Craig along with other senators and speakers referred to the
insurance program as the “Wounded Warrior Insurance Program.”60

Based on Craig’s statement before Congress, one has the impression that
service members injured in combat are chiefly eligible for TSGLI recovery.  This
is because Craig’s statement places the combat-wounded soldier front and center. 
Soldiers with traumatic and enduring wounds of war indeed deserve accolades for
their priceless sacrifices.  Craig’s statement was perhaps effective in marshalling
support for the amendment.  But, despite his worthy intentions, Craig spoke of
only one dimension of the reality of military trauma and service.  

2.  Visible Combat Wounds Privileged Over Invisible Combat Wounds.—
According to the VA, “TSGLI has been widely acknowledged as a successful
program that has met its intended purpose,” claiming that, “4,408 veterans and
servicemembers have been paid $273,450,000 under the TSGLI program,” as of
April 30, 2008.61  The VA’s claim of success, however, may be overstated.  One
report by the GAO, which analyzed the rate of approval for claims filed by
service members with traumatic brain injury (“TBI”), found the “actual approval
rate may be lower”62 for claims involving traumatic brain injury.63 

Although the GAO’s report narrowly concerns claims for TBI, the report
shows how service members with invisible combat wounds confront greater
challenges in obtaining TSGLI compensation as compared to service members
with visible combat wounds.64  While the evidentiary burden for establishing
TSGLI eligibility on a claim for TBI on the basis of a coma is relatively
uncomplicated, the task of showing a loss of an Activity of Daily Living due to
TBI can be relatively complicated.65 The GAO, in part, predicates this arduous

58. Hearing on Wounded Warrior Insurance: A First Look at a New Benefit for
Traumatically Injured Service-Members, 109th Cong. 746 (2006) (statement of Sen. Craig,
Chairman, H. Committee on Veterans’ Affairs).

59. Id.
60. Id.
61. U.S. DEP’T. OF VETERANS AFFAIRS, SERVICEMEMBERS’ GROUP LIFE INSURANCE

TRAUMATIC INJURY PROTECTION:  YEAR ONE REVIEW 5 (2008). 
62. GAO REPORT, supra note 3, at 3.
63. Id.  The GAO, in part, attributed discrepancy between the VA’s claim and the GAO’s

findings to the DOD’s and VA’s lack of “assurance that claim decisions are accurate, consistent,
and timely within and across the services.”  Id.  The rate of actual approval may be lower, or
conversely the rate of denial may be higher, because the VA did not capture all denials for
traumatic brain injury in its data.  Id. at 6.

64. See generally id. at 1-3.
65. Id.



518 INDIANA LAW REVIEW [Vol. 47:509

evidentiary task on the obstacles that service members with TBI have in the basic
task of gathering evidence.66 

The GAO also posits that the difficulty lies in the subjective and unclear
eligibility criteria.67  The GAO attributes the subjectivity and lack of clarity in the
eligibility criteria to the applicant and recommends that greater educational
outreach would improve service members’ and medical providers’ understanding
of TSGLI.68  However, the GAO appears to have missed the mark in only
attributing subjectivity to medical providers and claimants.69  The report omits
any analysis of wrongful denials by the VA and DOD under their administrative
procedures.70  The following is a case in point in which a service member who
would otherwise have been eligible for the military disability benefit was denied
under the VA’s administrative standard because the injury was not the product of
“involuntary external force,” an outcome that he would have likely dodged had
he sustained the same wound in the course of combat. 

3.  Non-Combat Traumatic Wounds Are Likely to Receive Lower
Recognition.—The story of Army Major W.D. Foster demonstrates the greater
level of scrutiny that non-combat trauma claims undergo under the administrative
procedures. On November 28, 2004, Foster was deployed to Iraq where he
remained stationed until November 3, 2005. 71  During a mandatory bi-annual
Army physical fitness test, Foster totally and permanently injured himself.72  It
occurred while performing sit-ups.  Foster first completed the push-up portion of
the physical fitness test, which measured his chest, shoulder, and triceps muscle
endurance.  After he completed the push-ups, within two minutes, Foster
immediately threw himself on his back onto cement ground where there was
loose gravel to commence the sit-up portion of the test. On command, Foster
assumed the starting position by lying on his back with his knees bent at a forty-
five-degree angle.  With full speed, Foster lowered his body to the ground until

66. Id.
67. Id. at 4.
68. Id at 20, 23.
69. Id. at 4-5.
70. See generally id. (excluding attribution of TSGLI denials for service members based on

insufficient administrative procedures).
71. Foster v. United States, 111 Fed. Cl. 658 (2013).  
72. Id. at 660 (The Army physical fitness test measures three events: push-ups, sit-ups, and

a timed two-mile run.  See APFT Standards, U.S. ARMY BASIC (Nov. 15, 2013, 11:53 PM),
http://usarmybasic.com/army-physical-fitness/apft-standards#.Uob5sr4o7IU, archived at
http://perma.cc/N5YA-WY6M.  Each portion of the exam is scored based on the number of
repetitions performed or the time run, and the soldier’s gender and age category.  Id.  Soldiers who
fail any portion of the fitness test must retake the entire fitness test within three month and are
“flagged.”  A flag renders a soldier ineligible for promotion, reenlistment, or enlistment extension. 
APFT—Army PT Test, U.S. ARMY BASIC (Nov. 15, 2013, 11:54 PM), http://usarmybasic.com/army-
physical-fitness/apft#.Uob8Lb4o7IU, archived at http://perma.cc/D6DD-7WHC.   Failure to pass
two or more fitness exams can lead to separation from the Army.  Id.  Conversely, a soldier whose
score exceeds an exceptional threshold is awarded a physical fitness badge.  Id.).



2014] REFRAMING AND RECONSTITUTING 519

the bottom of his shoulder blades touched the ground.
Foster performed a few sit-ups short of thirty-two when sharp pain rushed

through his lower back.  After the event, Foster attempted to lift himself in
preparation for the running portion, but was unable to do so.  He experienced
numbness in his legs and could not walk.  He was rushed to the Army hospital
where he underwent an MRI and later learned that he had a spinal stroke.  The
stroke caused total and permanent paralysis from the waist down.  Foster’s
doctors identified external blunt force trauma against his back while doing
countless sit-ups as the most probable cause of his injury.  While there was no
obvious bleeding or fracture of the spine, Foster’s injury more likely than not
resulted from a “traumatic event.”73   

Foster applied for TSGLI benefits, but twice the TSGLI adjudicators denied
his claim because the injury was not “a direct result of a qualifying traumatic
event.”74  Foster then appealed to the Army Board for Correction of Military
Records (“ABCMR”) in his final administrative appeal.75  The ABCMR affirmed
the denial but on the grounds that the injury was not caused by an “involuntary”
traumatic event as defined by the VA’s TSGLI procedures guide.76  Because the
Army’s appellate system is designed to reverse errabund military disability
adjudications, it is also unlikely that Foster’s case is an aberration.77  The Army’s
affirmance of Foster’s denial suggests systemic denial of claims filed by service
members for injuries sustained outside of combat, which under the statute and
regulations may be compensable.78  Had Foster sustained the injury in the course
of combat by no fault of his own, his injury would likely be considered a product
of “involuntary” force.79  The distinction between a “voluntary” and
“involuntary” external force80 even is thus more than just semantics.  Instead it
conceives combat-incurred wounds as categorically distinct from those that are
incurred outside of combat. 

4.  Other Service-Related Traumatic Wounds Receive No Recognition.—To
reiterate, 38 U.S.C. § 1980A was developed to provide traumatically injured
service members financial assistance during the trying treatment and
rehabilitation period.81  Absent from the statute, regulations, and procedures is
any mentioning or recognition of other forms of traumatic injuries that leave
service members in financial straits during the treatment and rehabilitation period
before they are separated from the military.  For instance, the statute and
regulations disregard enduring invisible wounds such as PTSD or MST, or even
visible traumatic wounds incurred by military assault, or even pregnancies that

73. Id.
74. Id.
75. Id.
76. Id.
77. Id.
78. See generally 38 U.S.C. § 1980A (2013); 38 C.F.R. § 9.20 (2013).
79. See TSGLI GUIDE, supra note 2.  
80. Id.
81. See generally GAO REPORT, supra note 3.



520 INDIANA LAW REVIEW [Vol. 47:509

are the product of rape.  While unabated stress experienced during deployment
to combat duties is the leading cause of PTSD among service members, unlike
TBI, it is typically not caused directly by a physical traumatic force to the head.82 
Moreover, unlike TBI, which is recognized as a compensable injury, PTSD
generally carries stigma.83  Thus, the presumption is that those service members
injured during combat receive greater recognition than those who are
traumatically injured during their course of military service in a non-combat
activity.

II.  THE ARCHETYPE OF A COMBAT-WOUNDED SOLDIER AND ITS ROOTS IN A
CULTURE WHERE PARADIGMS OF IDEALIZED WOUNDED SOLDIERS SHAPE

HOW REALITY IS COMPREHENDED

While TSGLI may be thought to benefit only those who are traumatically
injured in the course of combat, in actuality, the legislation covers circumstances
where service members are injured outside the battlefield.84  At the micro level
is the issue of what remedies are available to a service member wrongfully denied
under unduly rigorous administrative criteria.  At the macro level is the
interpretive conflict between the reality of military trauma, which encompasses
combat trauma and military assault trauma, and the centrality of the combat
soldier in a military benefit program.  This Article argues that the perception of
visibly combat-injured soldiers as the paradigmatic victims of military service
conforms to the demands of military culture, normative views of military identity,
and gendered paradigms.  The idealized masculine soldier, one whose primary
purpose and duty is to engage in combat, is seen as impervious to non-combat
trauma, including PTSD, MST, or visible non-combat wounds.85  The idealized
soldier, however, is saddled with other burdens largely related to physical combat

82. How Common Is PTSD?, U.S. DEP’T. OF VETERANS AFFAIRS (Nov. 6, 2013, 11:02 AM), 
http://www.ptsd.va.gov/public/pages/how-common-is-ptsd.asp archived at http://perma.cc/MW5B-
6XGC.

83. Mary Tramontin, Exit Wounds:  Current Issues Pertaining to Combat-Related PTSD of
Relevance to the Legal System, 29 DEV. MENTAL HEALTH L. 23, 24 (2010).

84. 38 C.F.R. § 9.20(d)(1).  A full-time active-duty service member who is insured, which
occurs automatically, is covered anywhere.  Traumatic Servicemembers’ Group Life Insurance
Frequently Asked Questions, supra note 10, at 1.  This means that if a service member is on
vacation and sustains a traumatic injury he or she may be eligible for TSGLI.  Id. at 1-2.  If the
service member is injured as a result of a traumatic event, he or she may recover even if the event
occurred on a base in Texas or on a ship in the Mediterranean.  Id.

85. Lara Stemple makes a similar observation on the types of gender biases that inform
normative notions of masculinity and manhood in anti-violence law, stating “assumptions that real
men are sexual aggressors and never victims promote harmful perceptions about the ‘one’ way to
be a man.  They can justify violent behavior as an archetypal manifestation of maleness, promoting
a sense of inevitability about its continuation.  Such perceptions may influence behavior. . . .”  Lara
Stemple, Male Rape and Human Rights, 60 HASTINGS L.J. 605, 634 (2008).



2014] REFRAMING AND RECONSTITUTING 521

hazards.86
It is not an aberration that Senator Craig deployed the archetype of the

combat-wounded soldier when touting the net-positive of the military’s disability
program.  This is a view of soldiering that plays on dichotomies of gender, which
reiterate and instantiate military cultural identities, behavior, and value choices.87 
The following discusses gendered paradigms that contribute to perceptions of
wounds conveyed through the TSGLI law as well as administrative practices used
to evaluate a TSGLI disability claim.  The discussion argues that the centrality of
combat in Craig’s touting of the law, the continuum of wounds under the TSGLI
program with combat wounds at the top of the hierarchy, and the disregard of
particular wounds maps a gendered paradigm under-gridding military culture,
identity, values, and ethos.  The section illustrates that non-combat trauma claims
are subject to greater scrutiny, in part, because non-combat trauma is perceived
less meritorious as compared to combat trauma.

A.  The Paradigm of the Combat Warrior
Paradigms are important because they shape perceptions of reality.88  A

paradigm is a lens or framework through which stories are told, experiences reach
comprehension, and assumptions linger unstated.89  It is the “foundation for our
values, attitudes, and notions.”90  What shaped Senator Craig’s statement before
Congress and, maybe even, perceptions of military benefits at large, is the
paradigm of the combat warrior.  Feminist legal scholars and sociologist have
long theorized on the role that paradigms play in shaping law, policy, and human
behavior.91  One such theorist, Karen O Dunivin, discusses the role that

86. See Jill Elaine Hasday, Fighting Women: The Military, Sex, and Extrajudicial
Constitutional Change, 93 MINN. L. REV. 96, 104-07 (2008) (discussing the risks and burdens of
combat soldiering).

87. Karen O. Dunivin, Military Culture:  Change and Continuity, 20 ARMED FORCES &
SOC’Y 531, 532-34 (1994).

88. Id.
89. Id.
90. For additional writings on the paradigm of the combat masculine warrior, see Karen O.

Dunivin, Military Culture:  A Paradigm Shift?, AIR WAR C., Maxwell Paper No. 10 (2001).
91. Catharine A. MacKinnon, Difference and Dominance: On Sex Discrimination, in THE

MORAL FOUNDATIONS OF CIVIL RIGHTS 144-58 (Robert K. Fullinwider & Claudia Mills eds., 1986)
(discussing the role of paradigms in keeping women in second-class status under equality law);
Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique
of Antidiscrimination Doctrine, Feminist Theory and Antiracists Politics, 1989 U. CHI. LEGAL F.
139 (arguing that paradigms shape how the experiences of black women are perceived in
theoretical, political, and legal discourse); Kim Lane Schepple, Legal Story Telling, 87 MICH. L.
REV. 2073 (1989) (containing articles by authors including feminist legal theorist, Mari Matsuda,
on the use of stories and narratives to disrupt dominant paradigms); see also Judith Butler, Imitation
and Gender Insubordination, THE LESBIAN AND GAY STUDIES READER 307, 308 (Routledge 1993)
(explaining how paradigms of thought inform identity categories which can “be instruments of



522 INDIANA LAW REVIEW [Vol. 47:509

paradigms in military culture.92
In Military Culture: Change and Continuity, Dunivin coined the term

“combat-masculine warrior paradigm” to describe the relationship between
combat and gender in military culture.93  The concept of the paradigm combat
warrior recognizes several important concepts and observations.  First, the
military is an institution that is by and large comprised of men.94  Because of this,
the military’s culture is shaped by and reflects the ideas of men.95  However,
because the military has evolved and diversified as a result of external demands,
male-centric norms, experiences, and value-choices permeate military culture,
more at some levels than others.96   Second, “soldiering” is viewed as a masculine
role because it is the profession of war, defense, and combat, work that society
sees as men’s work.97  This is a view of military service that is identified as
hegemonic, pervasive, and historical.98  Third, there is a symbiosis between
perception and reality: men are enticed to join the military’s “cult of masculinity,”
the military swells with men throughout all ranks, and society views the military
and its culture as naturally male-centric because of its large male composition.99 
General reviews of the military are shaped by images of the military and its
culture and, concomitantly, images of the military and military culture are shaped
by general perceptions.  Indeed, the popular military advertising slogan, “We’re
looking for a few good men” depicts the military as largely dominated by and for
men.100  Fourth, the concept of combat defines the military’s and, as a
consequence, a soldier’s core objective.101  

The concept of the paradigm of the combat masculine warrior is a collection
of these views of the military culture and identity.  The notion of combat is
central feature of the paradigm because:

military structures and forces are built around combat activities—ground
combat divisions, fighter air wings, and naval aircraft battle groups.  The
Services organize and train themselves around their combat roles,

regulatory regimes, whether as the normalizing categories of oppressive structures or as the rallying
points for a liberatory contestation of that very oppression”).

92. See generally Dunivin, supra note 87.  
93. Id. at 532-34.  
94. Id. at 534.
95. Id. at 535.
96. Dunivin, supra note 90, at 3-4.
97. See, e.g., MARTIN BINKIN & SHIRLEY J. BACH, WOMEN AND THE MILITARY (Brookings

Institution, 1977); CYNTHIA ENLOE, DOES KHAKI BECOME YOU? THE MILITARIZATION OF
WOMEN’S LIVES 7-15 (1983).

98. See, e.g., Jamie R. Abrams, The Collateral Consequences of Masculinizing Violence, 16
WM. & MARY J. WOMEN & L. 703, 711-15 (2010).

99. Dunivin, supra note 87, at 534.
100. Id. at 2 (citing Michael McCarthy & Darryl Haralson, The Few. The Proud. The Ad., USA

TODAY, Mar. 20, 2003, at B3).
101. Dunivin, supra note 87, at 534-37.



2014] REFRAMING AND RECONSTITUTING 523

distinguishing between combat arms and support activities.  Since the
primary role of the military is preparation for and conduct of war, the
image of the military is synonymous with the image of combat.102

Because combat is defined as an extension or exertion of physical power and
because the military is largely comprised of men, military culture consequently
exalts idealized norms of a soldier as “a man in power, a man with power, and a
man of power.”103  The combat warrior paradigm thus reflects the military’s
cultural belief of what constitutes the ideal soldier.104 

The following demonstrates the paradigm of the combat warrior pervasively
influences military law and policy.  While Dunivin argues that the paradigm has
shifted towards greater inclusion and gender neutrality as a result of the inclusion
of women in combat roles, Dunivin maintains that, notwithstanding the gradual
change in gender makeup of the military, the paradigm continues to place male-
centric demands on female soldiers.105

B.  How the Paradigm Gains Prominence Within the Military
Culture and Policy

One way to think about the paradigm is that it shapes policies that influence
behavior and goads soldiers, including women, toward masculinized ideals.  For
instance, the military academies honor code, “we will not lie, cheat, or steal,”
guides “the ethical development of cadets and midshipmen in preparation for their
service as ‘officers and gentlemen.’”106  This honor code idealizes an officer as
honest, trustworthy, and male.  Ideals of what constitute a combat soldier are also
found in the Uniform Code of Military Justice (“UCMJ”).107  Under the UCMJ
a service member can face punishment for “behavior unbecoming an officer,”
which includes acts of adultery, financial irresponsibility, and fraternization.108

The paradigm of the combat warrior is seen in laws and policies that are
exclusionary in nature.109  For example, military laws have historically segregated
“units commanded by white officers, limited the number of service women in
uniform, and prohibited women from performing duties aboard combat ships or

102. Id. at 533.
103. See Abrams, supra note 98 (citing R.W. CONNELL, MASCULINITIES 77 (University of

California Press, 1995) (describing hegemonic masculinity theory); see also MICHAEL S. KIMMEL,
MASCULINITY AS HOMOPHOBIA: FEAR, SHAME, AND SILENCE IN THE CONSTRUCTION OF GENDER
IDENTITY, IN SEX, GENDER AND SEXUALITY 58, 61 (Ferber et al. eds., 2009) (discussing hegemonic
masculine ideals).

104. For similar discussions on the intersections of masculinity and military culture, see
MICHAEL L. RUSTAD, WOMEN IN KHAKI: THE AMERICAN ENLISTED WOMAN (1982); JUDITH H.
STIEHM, BRING ME MEN AND WOMEN 65-66 (1981).

105. Dunivin, supra note 90, at 5-9.
106. Dunivin, supra note 87, at 535.
107. Id.
108. Id.
109. Id.



524 INDIANA LAW REVIEW [Vol. 47:509

aircraft.”110  Women remain excluded from combat-related roles such as “flying,
infantry, armor, and sea duty.”111  This is because, according to the Congressional
testimony of DOD Under Secretary of Defense Edwin Dorn, “the combat
exclusion reflects and reinforces widespread attitudes about the place of women
in the military. . . . Put bluntly, women may not be regarded as ‘real’ soldiers
until they are able to do what ‘real’ soldiers do, which is to kill and die in
combat.”112  These laws, at one point or another, reflected the ideal archetype of
soldier: white, male, and combat-able.113  The military justified exclusionary laws
and policies “on the grounds of preserving combat effectiveness.”114  That is,
homogeneity helped achieve unit cohesion, a critical element of combat
effectiveness.  

The paradigm of the combat warrior reinforces socializing norms and values. 
For instance, the ability to conform to the combat warrior role demonstrated
manhood because “combat arms provided men the opportunity to demonstrate
their masculinity.”115  The military operationalizes the paradigm of the combat
warrior through training that imparts the ethos of masculinity.116  This is evident
during basic training where “traditional images of independent, competitive,
aggressive, and virile males are promoted and rewarded.”117  Those who cannot
meet these norms, like women or homosexuals, are systemically excluded as
outsiders or deviants and because their presence, especially in war, challenge and
undermine the paradigm of the masculine combat warrior.118  For this reason, they
may be especially vulnerable to punishment, disenfranchised from certain
military benefits, or viewed as possessing a handicap.  It is no surprise that, “the
combat exclusion laws and policies that restrict women’s assignments lead some
members to perceive women as inferiors.”119   

Gendered exclusionary policies have affected the allocation of military
benefits.  Take the United States Supreme Court case Frontiero v. Richardson.120 
Frontiero concerned a female service member’s right to claim her husband as a
“dependent” for purposes of certain benefit laws.121  The Supreme Court found
the difference standards for determining “dependency” for women and men

110. Dunivin, supra note 90, at 8.
111. Id.
112. Dunivin, supra note 87, at 536.
113. Id.
114. Id.
115. Id.
116. See HELENA CARREIRAS, GENDER AND THE MILITARY: WOMEN IN THE ARMED FORCES

OF WESTERN DEMOCRACIES 41, 43 (2006).
117. Dunivin, supra note 90 (citing Joseph H. Pleck, The Male Sex Role: Definitions,

Problems and Sources of Change, 32 J. SOC. ISSUES 155 (1976)).
118. Id.; see also William Arkin & Lynne R. Dobrofsky, Military Socialization and

Masculinity, 34 J. SOC. ISSUES 151, 155 (1978).
119. Dunivin, supra note 90, at 536.
120. 411 U.S. 677 (1973).
121. Id. at 678.



2014] REFRAMING AND RECONSTITUTING 525

unconstitutional.122  In a plurality opinion, Justice Brennan challenged the
continued accuracy of the assumption of that female spouses were normally
dependent, pointing out the increasing involvement of women in the labor force,
and invoking employment and income statutes to support his analysis.123  The
assumption of the law at issue in Frontiero rested on the timeworn conviction that
women could not and should not fully participate in military service because their
true responsibilities were non-combat related.  While there have been modest
changes in gender attitudes in the military, the paradigm still maintains some grip
on cultural perceptions within the military.

C.  How the Paradigm Explains Traumatic Injury Benefit Eligibility Criteria
A military disability benefit program designed to accommodate a variety of

combat and non-combat related injury but, that in practice, privileges combat
trauma over non-combat trauma is an extension of the combat-warrior paradigm. 
We saw this in Senator Craig’s statement before Congress.  His narrative suggests
an innocent, deep-rooted belief in a military tradition—a fundamental belief that
the identity of the soldier benefiting from the military disability program springs
from their role as heroes willing to sacrifice their lives.  As a collective of men,
the military is perceived as powerful, but alone, the individual male soldier can
feel powerless.124  Consider Craig’s narrative on Sgt. Calhoun who was
discharged and cannot count on the financial support of the military to meet his
financial needs during the rehabilitation and separation period.  Sgt. Calhoun’s
wife too is powerless due to the financial distress resulting from by her husband’s
disabling injuries.  Craig’s narrative of Sgt. Calhoun’s experience demonstrates
that military combat is difficult and hazardous work that leads to significant acts
of heroism.  For his work and ability to adhere to a combat warrior paradigm, Sgt.
Calhoun deserves praise, reward, and sympathy.  He sacrificed his limbs as well
as the ability to perform the primary combat role of soldier and breadwinner, two
traits that animate the ideals of the combat warrior paradigm.

While the narrative helps garner support for a military disability program
designed to aid Sgt. Calhoun and similarly-situated service members, it also helps
create the perception that members who are injured outside the fog of war are
excluded.  The combat warrior paradigm and the ideals that Senator Craig
espoused do not entirely comprehend the experiences of those injured in non-
combat situations.125  The idyllic picture of Sgt. Calhoun or the soldier injured in
combat does not always accurately reflect the reality of soldiers who suffer other
types of traumas not covered by TSGLI that also bring about financial hardships

122. Id. at 679.
123. Id. at 685-88. 
124. Ann McGinley makes a similar observation in the context of firefighters.  See Ann

McGinley, Ricci v. DeStefano: A Masculinities Theory Analysis, 33 HARV. J.L. & GENDER 581, 619
(2010) (stating “masculinity theory also recognizes that although men as a group benefit from the
‘patriarchal dividend,’ individual men often feel powerless in their own lives and jobs”).

125. See supra Part I.B.4. 



526 INDIANA LAW REVIEW [Vol. 47:509

during the rehabilitation and convalescence period.126  Again, these other traumas
include sexual trauma, assault by other soldiers, or PTSD.127  These types of
traumas, unlike combat-related traumas, do not promote the construction of
masculinity within the military or society’s perception of the military as a
masculine ideal.128  

The non-combat-related traumas undermine the image of the masculine
soldier because PTSD and sexual trauma fail to demand the type of normative and
hegemonic views of heroism enshrined in the combat warrior paradigm.129  The
difference in view between combat-related wounds and other forms of wounds,
which are poor representations of the male-centric paradigm, is channeled into
perceptions of the law and promulgation of administrative procedures that burden
claims for non-combat traumatic injuries.130  Because combat tests a soldier’s
manhood or masculinity, serving in combat and demonstrating wounds of combat
are ways to illustrate one’s manhood.131  Wounds that are poor illustrations of a
soldier’s manhood are deemed ill-deserving of recognition or compensation.132 
It is no wonder that female veterans who suffer from military sexual trauma face
a relatively arduous evidentiary burden to qualify for VA disability benefits, a
notably more difficult burden of proof than their male counterparts.133  It is also
no wonder that service members face tremendous stigma when they are afflicted
with PTSD or seek mental health treatment.134  The stigma attached to PTSD and
MST stands in stark contrast to the accolades that visibly combat-wounded

126. Id.
127. Id.
128. Abrams, supra note 98, at 718 (citing MATHEW J. MORGAN, THE AMERICAN MILITARY

AFTER 9/11:  SOCIETY, STATE, AND EMPIRE 47 (2008); see also CATHERINE MACKINNON, FEMINISM
UNMODIFIED:  DISCOURSES ON LIFE AND LAW 26, 34 (1987) (noting male biases in the definitions
of sports, workplace benefits and expectations, scholarship, art, military service, family, history,
and sex).

129. Holly Seesel et al., Consequences of Combat, 1 VETERANS L. REV.  254, 255 (2009)
(reviewing ILONA MEAGHER, MOVING A NATION TO CARE:  POST-TRAUMATIC STRESS DISORDER
AND AMERICA’S RETURNING TROOPS (2007); DARYL S. PAULSON & STANLEY KRIPPNER, A REVIEW
OF HAUNTED BY COMBAT:  UNDERSTANDING PTSD IN WAR VETERANS INCLUDING WOMEN,
RESERVISTS, AND THOSE COMING BACK FROM IRAQ (2007)).

130. See Abrams, supra note 98, at 704 (making a similar observation in the context of
domestic violence law reforms and resultant consequences of military law).

131. See, e.g., Rosemarie Garland-Thomas, Integrating Disability, Transforming Feminist
Theory, 14 NWSA J. 1, 6 (2002) (stating that “even the general American public associates
femininity with disability”).

132. See Seesel et al., supra note 129, at 255 (“PTSD . . . weakens this heroic vision of
soldiers”).

133. Jennifer C. Schingle, A Disparate Impact on Female Veterans: The Unintended
Consequences of Veterans Affairs Regulations Governing the Burdens of Proof for Post-Traumatic
Stress Disorder Due to Combat and Military Sexual Trauma, 16 WM. & MARY J. WOMEN & L. 155,
165 (2009).

134. Tramontin, supra note 83, at 29.



2014] REFRAMING AND RECONSTITUTING 527

soldiers often receive.135  
Defenders of the combat-centric military disability benefit program may

contend that soldiers who engage in combat are at greater risks of incurring total
and permanent traumatic injuries.136  Rather than a privileging of combat wounds
for ideological or cultural reasons, the disability program reflects the reality that
combat situations are inherently riskier.137  The program aims to provide financial
assistance to soldiers who are most likely to sustain the types of injuries that
impose severe financial burdens.138  Because combat soldiers are at a greater risk
of literally losing life or limb, they are entitled to greater recognition even at the
expense of relegating other forms of military hazards to obscurity.139  

While these defenses are fair in that they highlight the fact that soldiers, and
male soldiers to be precise, are by and large the dominant casualties and injuries
of war, the defenses ignore the language of the legislation that allows for
compensation regardless of whether an injury is sustained in combat or not.140 
The subjecting of non-combat trauma to greater scrutiny trades on the idea that
there are only two forms of wounds sustained because of military service: those
which reinforce dominant paradigms of military service and those which do
not.141  Furthermore, the defense in no way explains the omission of coverage of
sexual trauma or PSTD and disregards that an invisible war wound, like PTSD,
is an incidence of combat just as a visible war wound.  This omission conforms
to the view that violence can only take two forms: a masculinized or feminized
form.142  Combat is seen as a direct outlet of hyper-masculine exertions of power
and control.143 Combat links strength, success, and control.144  Wounds that are
invisible or the product of sexual assault connote powerlessness and loss of
control, which only engender shame, fear, or isolation.145   Highlighting the risks

135. See GAO REPORT, supra note 3, at 1-3 (explaining that service members with visible
combat wounds experience fewer challenges in obtaining TSGLI compensation as compared to
service members with invisible combat wounds).

136. See supra Part I.B.1.
137. Id.
138. See TSGLI GUIDE, supra note 2.
139. See supra Part II.C.
140. See supra Part I.B.
141. Id.
142. Nancy E. Dowd, Masculinities and Feminist Legal Theory, 23 WIS. J.L. GENDER & SOC’Y

201, 220 (2008) (noting that violence is often seen as an extension of gender, so much so that
violence “is doing gender”).

143. See Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed
Forces, 38 UCLA L. REV. 499, 501 (1981) (stating that if “[m]asculinity is traditionally defined
around the idea of power[, and] the armed forces are the nation’s preeminent symbol of power[,]”
then one preeminent symbol of masculinity is military might).

144. See id. at 500-01 (discussing these traits in the context of masculinity). 
145. See Dowd, supra note 142, at 213 (“masculinity is thus to a large degree about fear and

shame and emotional isolation”); see also Garland-Thomas, supra note 131, at 21 (“Our collective
cultural consciousness emphatically denies the knowledge of vulnerability, contingency, and



528 INDIANA LAW REVIEW [Vol. 47:509

inherent in war combat dodges the relative normality of male involvement in
combat soldiering and the incongruence of masculine qualities such as violence,
strength, and aggression with femininity.146  

Lastly, a defense of the military benefit program that reiterates the risks
inherent with combat reinforces the dated notion that soldiering is only
synonymous with combat.147  Today, the military is responsible for a diversity of
contingencies.  More than ever, the military engages in peacekeeping missions,
which are non-combat in nature and support political and economic objectives. 
Advances in technology, the use of drones, and the outsourcing of ultra-
hazardous activities to private military contractors further illustrate the
decentralization of combat as the military’s preeminent objective.148

III.  LEGAL REMEDIES FOR WRONGFUL MILITARY BENEFIT DENIALS UNDER
PRINCIPLES OF ADMINISTRATIVE LAW

A military service member denied of a disability benefit under unduly
arduous adjudicatory procedures has some recourse under principles of
administrative law.149  Congress, through the Administrative Procedures Act
(“APA”),150 established the basic procedural standards for federal agencies.151 
Through statutes, Congress delegates special powers to an agency, board, or
commission to oversee and monitor activities in complex areas, such as the
securities market, labor force, and, in the present case, military personnel
matters.152  The APA provides two basic types of procedures for agency decision-

mortality.  Disability insists otherwise, contradiction such phallic ideology.”).
146. Abrams, supra note 98, at 722.
147. See id. at 721.
148. See, e.g., David Johnston & John M. Broder, F.B.I. Says Guards Killed 14 Iraqis Without

Cause, N.Y. TIMES, Nov. 14, 2007, http://www.nytimes.com/2007/11/14/world/middleeast/
14blackwater.html?_r=0 (illustrating the risk and use of private military companies in combat);
James Risen, Use of Iraq Contractors Costs Billions, Report Says, Aug. 11, 2008, http://www.
nytimes.com/2008/08/12/washington/12contractors.html?_r (illustrating the cost of private military
contractors).  See also Milena Rodban, On Demand Armies:  Private Military Company
Involvement in Internal Conflicts (Nov. 18, 2009) (unpublished M.A. thesis, Georgetown
University), available at https://repository.library.georgetown.edu/bitstream/handle/10822/553572/
rodbanMilena.pdf?sequence=1.

149. ROTUNDA, supra note 18, at 237.
150. 5 U.S.C. §§ 551-559 (2013).
151. See Martin Shapiro, Administrative Law Unbounded: Reflections on Government and

Governance, 8 IND. J. GLOBAL L. STUD. 369, 370 (2000) (noting that in enacting the APA,
Congress recognized that while the executive, legislative, and judicial branches are directly
responsible for the performance of their constitutional responsibilities, these bodies of government
cannot always decide discrete or complex matters).

152. See Richard B. Stewart, Administrative Law in the Twenty-First Century, 78 N.Y.U. L.
REV. 437, 438 (2003).  Stewart discusses the APA’s four basic components of U.S. Administrative
law: procedural requirements for agency decisionmaking, threshold requirements for the



2014] REFRAMING AND RECONSTITUTING 529

making: notice and comment rulemaking, and formal adjudication through trial-
type hearings. 153  These procedures generate an administrative record that serves
as the exclusive basis for agency decision and judicial review.154  Under the APA,
a federal court is authorized to review four basic types agency issues: an agency’s
compliance’s with applicable procedural requirements, the sufficiency of the
record evidence to support agency factual determinations, the conformity of an
agency action with applicable constitutional and statutory strictures, and a
determination of whether an agency’s discretionary action is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”155

A TSGLI military disability benefit determination results from application of
the Veterans’ Benefits statute156 and regulations promulgated by the DOD and the
VA.157  The statute and regulations apply to all stages of military disability claim,
from the initial review to the final administrative appeal to the Board for
Correction of Military Records.158  For these reasons, a TSGLI benefit decision
is subject to administrative law principles and judicial review.  The DOD and VA
must rely on administrative procedures that subject non-combat wounds to greater
scrutiny, but this standard is inconsistent with statute and regulations, wherein
both combat and non-combat trauma are compensable.159  When the military
denies a benefit to a service member under administrative standards that differ
from those in a statute or regulation, the issue is twofold: (1) whether the
administrative standards and procedures used to adjudicate the benefit
determination conforms to applicable law, and (2) whether the claimant is entitled
to relief notwithstanding the administrative standard.160   Relief may be granted
to the claimant if the facts support relief and if the agency abused its discretion.161

availability of judicial review, principles defining the scope of judicial review, and provisions
regarding public access to agency information. Id.

153. See STEPHEN BREYER ET AL., ADMINISTRATIVE LAW AND REGULATION POLICY 652-60,
685-99, 872-86 (5th ed. 2001).

154. Id.
155. 5 U.S.C. § 706(2)(A) (2013).
156. 38 U.S.C. § 1980A (2013).
157. 38 C.F.R. § 9.20 (2013).
158. 38 U.S.C. § 1968(a) (2013).
159. See supra Part I.B.
160. See, e.g., Richey v. United States, 322 F.3d 1317, 1329 (Fed. Cir. 2003) (finding that the

existence of error in military board’s decisions does not entitle plaintiff to relief); Murphy v. United
States, 993 F.2d 871, 874 (Fed. Cir. 1993) (addressing justiciability of a military administrative
decision); Sargisson v. United States, 913 F.2d 918, 921 (Fed. Cir. 1990) (finding that the issue of
whether the decision to release the officer from active duty applied with applicable regulations was
non-justiciable). 

161. Wronke v. March, 787 F.2d 1569, 1576 (Fed. Cir. 1986); see also Greig v. United States,
640 F.2d 1261, 1268 (Ct. Cl. 1981) (stating that the agency’s decision is final unless arbitrary or
capricious, or unsupported by the evidence).



530 INDIANA LAW REVIEW [Vol. 47:509

A.  Judicial Review of Agency’s Factual Determination
First a court determines whether it can exercise jurisdiction over the

government.162  In most cases involving military benefits, either a federal court
or the United States Court of Federal Claims can exercise jurisdiction.163  Then,
a court, without hearing the merits of the case, will determine whether a
governmental agency’s factual determination is entitled to deference.164  A federal
court will hear de novo a military disability determination by a service member
if the denial was “arbitrary, capricious, or contrary to law” or unsupported by
“substantial evidence.”165  Although both standards are found throughout federal
court military disability cases, they are often conflated or misapplied.  However,
because the “unsupported by substantial evidence” standard is less rigorous than
the “arbitrary, capricious, and contrary to law” standard, a litigant is well advised
to seek review under both standards. 

1.  Unsupported by Substantial Evidence.—In Universal Camera Corp. v.
National Labor Relations Board, the United States Supreme Court stated that
“substantial evidence” is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”166  To determine whether substantial
evidence supports a decision, a court considers the entire record, including that
which “fairly detracts from its weight.”167  If a preponderance of the evidence or
substantial evidence does not support a military disability decision, a court will
set it aside.  

In Peoples v. United States,168 the Court of Federal Claims applied the
substantial evidence test to hear a Navy employment and separation decision.169 
The Board for Correction of Navy Records (“BCNR”), the Navy’s equivalent of
the ABCMR, declined to correct a veteran’s military records and denied
postponement of his mandatory separation for medical reasons because the
evidence submitted was insufficient to establish probable material error or

162. The question of subject matter jurisdiction is a threshold issue that a court determines at
the outset of a case.  See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). 

163. Pursuant to the Tucker Act, the Court of Federal Claims has jurisdiction over “any claim
against the United States founded either upon the Constitute, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.”  28 U.S.C. §
1491(a)(1).  The Tucker Act does not create a substantive cause of action, which means that “a
plaintiff must identify a separate source of substantive law that creates the right to money
damages.”  Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in part).  “In the
parlance of Tucker Act cases, that source must be money-mandating.”  Id.

164. Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005).
165. Id.
166. 340 U.S. 474, 477 (1951).
167. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006) (quoting

Universal Camera Corp., 340 U.S. at 488). 
168. 87 Fed. Cl. 553, 570 (2009).
169. Id.



2014] REFRAMING AND RECONSTITUTING 531

injustice.170  The defendant motioned for judgment on the administrative record,
which is a mini-trial in which the court makes “factual findings . . . from the
record evidence as if it were conducting a trial on the record.”171  

“Substantial evidence” tested whether the evidence in the records
substantially supported the Navy’s determination.  Although the Navy was not
required to explain the reasons for its decision in great detail, it was required to
provide the veteran enough detail to permit him to rebut its action, including
evidence supporting its finding.172  First, a Navy Director “misportrayed the
record, and by doing so, developed a potentially erroneous presumption about”
the veteran’s ability to serve.173  Second, the court found no substantial evidence
supporting a link between the medical finding and the veteran’s fitness to serve.174 
Third, and most importantly, the Navy failed to provide adequate evidence and
guidance in its decision, so as to allow the veteran a fair shot at rebutting the
Navy’s decision.175  The court stated that “[w]ithout the guidance of a well-
supported decision from the [Navy], and in light of the wholly discretionary
nature of the Navy’s decision whether to defer plaintiff’s mandatory separation,
the court cannot determine what record evidence should truly be afforded the
most weight in ascertaining whether an injustice has occurred.”176  For these
reasons, the court found the Navy’s decision lacked substantial evidence.177 

2.  Arbitrary, Capricious, and Contrary to Law.—Courts will also reverse an
agency’s decision if it is “arbitrary, capricious, or…contrary to law, regulation,
or mandatory published procedure.”178  Under this standard, a federal court
examines all relevant factors to determine whether there was a clear error of
judgment.179  While courts do not substitute their own judgment regarding sound
policy for those of the agency, courts do require the agency to justify its exercise
of power and articulate an explanation that rationally connects the facts to the
decision.180  Although an agency is free to modify or reverse a prior decision, the
agency must also provide a reason for that change.181  The decision is arbitrary
and capricious if the agency: (1) relied on factors that Congress did not want it
to consider; (2) entirely failed to consider an important aspect of the problem; (3)
offered an explanation that runs counter to the evidence; or (4) is so implausible
that it could not be described as a difference in view or the product of agency

170. Id. at 564.
171. Id. at 569 (quoting Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005)).
172. Id. at 576 (citing Craft v. United States, 544 F.2d 468, 474 (Ct. Cl. 1976)).
173. Id. at 579.
174. Id.
175. Id.
176. Id.
177. Id.
178. Clayton v. United States, 225 Ct Cl. 593, 595 (1980).
179. Motor Vehicles Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983).
180. S.E.C. v. Chenery Corp, 332 U.S. 194, 196 (1947).
181. Id. at 199.



532 INDIANA LAW REVIEW [Vol. 47:509

expertise.182  
Van Cleave v. United States,183 a U.S. Court of Federal Claims case,

demonstrates the application of the “arbitrary, capricious, or contrary to law”
standard in a military disability case.184  In that case, a pro se veteran suffered
debilitating headaches during active duty in the Navy, was rated at 10% disability
by the Navy, and was subsequently medically discharged with severance pay.185 
After the discharge, the veteran discovered that the Navy rated him upon an
erroneous diagnosis of chronic headaches rather than the correct diagnosis of
migraine headaches.186  He petitioned the BCNR, the Navy’s administrative
appellate board, for an upward adjustment of his disability rating.187  A rating
based on the veteran’s actual disability would have entitled him to a higher rating
and therefore higher severance pay.188

The BCNR refused to adjust the veteran’s disability rating.189  Under statute,
the BCNR is empowered to correct an “error” or “injustice” in a military
record.190  However, the BCNR held that the disability rating on the basis of a
headache and not the veteran’s actual disability did not constitute an “error” or
“injustice” in the military records.191  First, the board assailed the veteran’s
credibility by stating that his migraine diagnosis was based on his subjective
reports to his physicians.192  Second, the board stated that having a prescription
for migraine medication did not mean that he required medication to treat the
migraine.193  Third, the board stated that he sought a medical discharge, not
because he had debilitating migraines, but because he failed to meet the body-fat
standards for promotion and continuation on active duty.194  Lastly, the board
used evidence of the veteran’s performance to show that he satisfied performance
standards while simultaneously accusing the veteran of malingering to show that
he did not deserve an increased rating.195

The U.S. Court of Federal Claims held that the board “launched an attack on
Mr. Van Cleave’s credibility and character, criticized [its own personnel]
appointed by authority of the Secretary of the Navy, and questioned the integrity
of Naval medical personnel and professionalism of the VA’s ‘general medical

182. Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43.
183. 70 Fed. Cl. 674 (2006).
184. Id. 684.
185. Id. at 675.
186. Id. at 676.
187. Id.
188. Id.
189. Id.
190. Id. at 679. 
191. Id.
192. Id.
193. Id. at 680.
194. Id. at 678.
195. Id. at 685.



2014] REFRAMING AND RECONSTITUTING 533

officers.’”196  Moreover, the evidence suggested that the board considered facts
that Congress did not want it to consider, such as failing to reassess the veteran
at a higher disability rating, entirely failing to consider sound medical opinions
supporting the veteran’s claim, and offering explanations that ran counter to the
evidence, such as its assertion that the evidence of prescription medication meant
that the veteran required the medication for treatment of the condition.197

B.  Judicial Review of Agency Interpretation
At issue is how to interpret “traumatic event” and “traumatic injury.”198  The

VA, through its administrative procedures, inserted the term “involuntary”
external force to the term “traumatic event.”199  However, the term “involuntary”
is found nowhere in the statute and regulations.  A court will determine whether
the VA’s interpretation or application of the word “involuntary” impermissibly
reads an express limitation into the statute. 

The United States Supreme Court announced the analytical framework for
judicial review of an agency’s interpretation of a Congressional statutory
provision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council.200  That
case involved the Environmental Protection Agency’s (“EPA”) interpretation of
“stationary source” contained in the Clean Air Act.201  The EPA promulgated
regulations that allowed a state to authorize an existing plant to obtain permits for
new equipment that did not meet the permit conditions as long as the alteration
did not increase the total emissions of the plant.202  The Natural Resources
Defense Council, an environmental defense group, challenged the EPA’s
interpretation of “stationary source” contained in the regulations.203  Before the
Supreme Court was the question of whether a court can defer to the EPA’s
interpretation of the statute.204  The Supreme Court upheld the EPA’s

196. Id. at 686.
197. Id. at 684-85.
198. See 38 U.S.C. § 1980A(a)(2) (stating “[i]f a member suffers more than one such

qualifying loss as a result of a traumatic injury from the same traumatic event, payment shall be
made . . . .”; id. § 1980A(b)(1) (stating “[a] member who is insured against traumatic injury under
this section is insured against such losses due to traumatic injury . . . as are prescribed by the
Secretary by regulation.”  Ergo, Congress delegated the power to define “traumatic injury” to the
Secretary but by regulation only.); see also 38 C.F.R. § 9.20(b)-(c) (defining traumatic event as “the
application of external force, violence, chemical, biological, or radiological weapons, or accidental
ingestion of a contaminated substance causing damage to a living being” and defining traumatic
injury as “physical damage to a living body that is caused by a traumatic event as defined in
paragraph (b) of this section.”).

199. TSGLI GUIDE, supra note 2, at 4.
200. 467 U.S. 837, 842-43 (1984).
201. Id. at 846-57.
202. Id. at 840.
203. Id. 
204. Id. at 843-44.



534 INDIANA LAW REVIEW [Vol. 47:509

interpretation and announced a two-part test to determine whether a court will
defer to the interpretation of a statute by the agency tasked with its
implementation.205  

In step one of its Chevron analysis, a reviewing court must determine whether
the statute is ambiguous.206  The court must ascertain “whether Congress has
directly spoken” on the issue.207  If, by “employing traditional tools of statutory
construction,” including canons of construction, the reviewing court determines
that Congress’s intent is clear, then “that is the end of the matter.”208  In step two,
after a court finds a statute to be ambiguous, the court must determine whether
the construction adopted by the agency is permissible.209 

A determination of whether an agency interpretation is reasonable depends
on where the interpretation is found.210  In United States v. Mead Corp., the
Supreme Court modified Chevron’s doctrine of deference finding that a court will
defer to an interpretation of a statute by an agency tasked with its promulgation
if Congress intended for the agency to act with the “force of law.”211  Agency
interpretations of statutes not promulgated as regulations, which undergo the
rigors of the “notice and comment” provisions of section 553 of the APA, have
the “force of law.”212  In the present case, 38 C.F.R. § 9.20, the TSGLI
regulations, have the force of law because they were promulgated after
undergoing “notice and comment” pursuant to the APA and Congress’s mandate
under 38 U.S.C. § 1980A.  However, interpretations found only in an agency’s
administrative procedure guide enjoy less deference, and if they contravene law,
they enjoy no deference.213  The Supreme Court addressed this issue in
Christensen v. Harris County.214  

In Christensen, employees of the Harris County sheriff’s department brought
an action against the county for requiring employees to use compensatory before
they reached the limit which would require overtime payments.215  The
employees, relying on a U.S. Department of Labor opinion letter stating that an
employer may only compel use of “comp time” if agreed to in advance, alleged
that this requirement violated of the Fair Labor Standards Act (“FLSA”).216  The
U.S. Supreme Court accorded the agency’s opinion letter minimal deference and,

205. Id. at 863-64.
206. Id. at 842-43.
207. Id at 842.
208. Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998) (quoting Chevron, 467 U.S. at 842-

43).  
209. Chevron, 467 U.S. at 843.
210. United States v. Mead Corp., 533 U.S. 218, 230 (2001).
211. Id. at 226-27.
212. Id. at 226.
213. Id.
214. 529 U.S. 576, 587-88 (2000).
215. Id. at 581.
216. Id. 



2014] REFRAMING AND RECONSTITUTING 535

therefore, was not binding on the court.217  The Supreme Court reasoned that an
agency’s opinion letter was not “subject to the rigors of the Administrative
Procedur[e] Act, including public notice and comment,” and therefore it was
entitled “some deference,” but not the same deference as an agency’s
regulations.218  The Supreme Court drew a bright line between formal agency
documents, such as legislative regulations, and less formal ones, including
opinion letters, agency manuals, policy statements, and enforcement guides.219  
An agency’s interpretation of a statute found only in its administrative procedures
is subject to lesser deference under Skidmore v. Swift & Co.220 

In Skidmore, seven employees of the Swift & Company packing plant at Fort
Worth, Texas brought an action under the Fair Labor Standards Act of 1938 to
recover overtime, liquidated damages, and attorneys’ fees.221  At issue was the
deference due to the U.S. Department of Labor’s interpretation of overtime
work.222  The Supreme Court held that the agency’s interpretation was persuasive
but not binding.223  An agency’s interpretation will be accorded deference if the
interpretation meets a four-factor test: (1) the thoroughness of the agency’s
investigation; (2) the validity of its reasoning; (3) the consistency of its
interpretation over time; and (4) other persuasive powers of the agency.224

1.  Step One in Chevron Analysis.—The first step in the Chevron analysis is
to determine whether there is ambiguity in the statute after applying traditional
canons of statutory interpretation.225  Although the C.F.R. does not define or
modify the term “external force,” as discussed below, courts, in the absence of
language that modifies or defines a term, will apply the plain meaning of the
language.  One Federal Circuit court did just that in Nielson v. Shinseki,226 a case
that concerned the meaning of the words “service trauma” in a statute that
conferred military benefits.227  

At issue was whether the veteran’s removal of teeth in service by military
dentists as a result of a periodontal infection constituted “service trauma.”228  The
statute and C.F.R. did not define “service trauma.”229  The court applied the
prevailing Webster dictionary definition of trauma at the time the statute was
enacted as an “injury or wound to a living body caused by the application of

217. Id. at 587.
218. Id. (quoting Reno v. Koray, 515 U.S. 50, 61 (1995)).
219. Id.
220. 323 U.S. 134, 140 (1944).
221. Id. at 135.
222. Id. at 139-40.
223. Id. at 140.
224. Id.
225. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984).
226. 607 F.3d 802 (Fed. Cir. 2010).
227. Id. at 805-08.
228. Id. at 803.
229. Id. at 805.



536 INDIANA LAW REVIEW [Vol. 47:509

external force or violence.”230  The pulling of teeth, according to the court, was
an act of force that produced a physical injury.231  However, the court construed
the word “trauma” narrowly because it was preceded by the word “service.”232 
The words in the statute, “combat wounds or other service trauma,” suggested
that Congress intended to include only injuries sustained during the performance
of military duties, and not medical treatment. 233  Because a “fundamental canon
of statutory construction [requires] that the words of a statute must be read in
their context and with a view to their place in the overall statutory scheme,” the
word juxtaposition of the word “service” to “trauma” narrowed the definition of
trauma.234  

Consistent with the Nielson court’s application of the principle that terms be
given their plain meaning when they are not defined by the statute, Webster’s
dictionary defines trauma as “an injury (as a wound) to a living tissue caused by
an extrinsic agent” or “an agent, force, or mechanism that causes trauma.”235 
Webster’s dictionary defines “external” as “capable of being perceived
outwardly,” “of, related to, or connected with the outside or an outer part,” and
“arising or acting from outside.”236  Webster’s dictionary defines “force” as
“strength or energy exerted or brought to bear,” “cause of motion or change,” or
“violence, compulsion, or constraint exerted upon or against a person or thing.”237 
These definitions contain no requirement of or involve no “voluntary” or
“involuntary” action.  Because Congress made no express distinction between
combat and non-combat wounds, under the plain language of the statute and
regulations, any service member who sustains a “traumatic injury” as a result of
“external force,” in or outside of combat or voluntarily or involuntarily, would
qualify for compensation.238

230. Id. at 806.
231. Id.
232. Id. at 807.
233. Id.
234. Id. (quoting Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989)).
235. THE MERRIAM-WEBSTER DICTIONARY 1331 (11th ed. 2003).
236. Id. at 443.
237. Id. at 489.
238. See 38 § U.S.C. 1980A (The regulations also lack language that narrows the term

“external force.”  Instead, the regulations contain language that may expand the term’s meaning. 
Applying the statutory canon that “the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme” as the Nielson court advanced, it is apparent that
Congress intended a comprehensive reading of “external force” when it enacted 38 U.S.C. § 1980A. 
The word “external force” in 38 C.F.R. § 9.20(b) is adjacent to “violence, chemical, biological, or
radiological weapons, or accidental ingestion,” would suggest an inclusive reading of “external
force.”  A trauma caused by “accidental ingestion,” or a working of the internal body, is antithetical
to an injury caused by “external force.”  Likewise, the irrationality of the VA’s “involuntary”
standard is palpable when applied to circumstances where service members sustain trauma as a
result of “accidental ingestion.”  It is inconceivable that Congress intended this paradox.  More
importantly, when Congress amended the statute, it extended coverage to traumatic injuries



2014] REFRAMING AND RECONSTITUTING 537

In analyzing whether there is ambiguity in a statutory term, a federal court is
also guided by the basic principle that congressional purpose subordinates an
agency’s interpretation.239  A court will rely on legislative history to divine
congressional intent only after expressing a belief that the statutory language is
not plain, but instead is unclear or ambiguous.240  Again, according to the
congressional record of the Senate dated April 21, 2005, Senator Craig expressed
his, and co-sponsoring Senators’, reasons for an amendment, which its passage
culminated in the creation of the TSGLI program.241  To reiterate Craig’s
statement, “[the] amendment addresses the coverage gap through the creation of
a new traumatic injury protection insurance program for the benefit of severely
disabled service members.”242  The program was created to give “injured service
members and their families the financial cushion they need to sustain them before
their medical discharge from the service, when veterans benefits kick in.”243 
Congress intended to ensure injured troops a “financial cushion” in situations
where service members are severely disabled and are unable to secure VA
benefits because they are in limbo between active duty and medical discharge. 
The absence of an “involuntary” requirement in the Congressional records
conspicuously demonstrates no Congressional intent underpinning the VA’s
standard to adjudicate TSGLI claims.  

2.  Step Two Under the Chevron Analysis.—If a reviewing court finds no
ambiguity in the terms “traumatic event,” “traumatic injury,” or “external force,”
then the definition controls, and a court will not defer to the agencies’
contravening interpretation.244  However, if a reviewing court finds ambiguity in
a term, it will determine whether the agency tasked with promulgating the statute
proffered a permissible interpretation.245  In a circumstance where an agency’s
administrative procedures modify regulations, the interpretation offered by and
applied under the administrative guidelines is analyzed under Skidmore’s four
part test: (1) the thoroughness of the agency’s investigation; (2) the validity of its
reasoning; (3) the consistency of its interpretation over time; and (4) other

sustained even in non-military contexts.  The words “external force” should therefore be read
liberally as Congress intended so as to encompass traumatic events in non-combat situations as well
as combat situations.)  

239. United States v. Mead Corp., 533 U.S. 218, 230 (2001).
240. See Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) (noting that on the other hand,

“we do not resort to legislative history to cloud a statutory text that is clear.”); United States v.
Great N. Ry. Co., 287 U.S. 144, 154-55 (1932) (“In aid of the process of construction we are at
liberty, if the meaning be uncertain, to have recourse to the legislative history of the measure and
the statements by those in charge of it during its consideration by the Congress.”).

241. Craig Statement, supra note 45, at S4094-95.
242. Id.
243. Id. at S4095.
244. See Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998) (quoting Chevron, U.S.A., Inc.

v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984)) (explaining that if the reviewing court
determines that Congress’s intent is clear, then “that is the end of the matter.)”

245. United States v. Mead Corp., 533 U.S. 218, 230 (2001).



538 INDIANA LAW REVIEW [Vol. 47:509

persuasive powers of the agency.246
First, there is no evidence the VA conducted a thorough investigation of what

constitutes “involuntary.” Second, the “involuntary” standard can lead to
paradoxical outcomes, as the guidelines do not define “involuntary.” If one is to
take the notion of voluntariness to its most extreme, then no service member
would ever qualify for the benefit in an all volunteer army.  Third, for this same
reason, the standard nurtures inconsistency.  Lastly, the agency’s other persuasive
powers, including its authority to promulgate regulations, would offer little basis
to accord deference to an administrative guide.  As addressed in Christensen,
under the APA a federal agency may promulgate a substantive rule or regulation,
but only if the agency subjects the rule or regulation to the rigors of the notice and
comment process.247  The VA may have exceeded its authority by implementing
a substantive standard subjecting it to the APA’s notice and comment process. 
When an agency’s interpretation of a regulation or statute contravenes the plain
language of the regulation’s or statute’s text, and thereby exceeding their grant
of power, the agency’s interpretation is accorded no deference.248 

IV.  WHEN THERE IS AMBIGUITY, PRECEDENT REQUIRES A TIPPING OF THE
SCALES IN THE SERVICE MEMBER’S FAVOR

The above section discusses the principles of administrative law as they relate
to a military administrative decision reviewed under a standard of scrutiny
inconsistent with statute and regulations.  Ultimately, Chevron and its progeny
granted agencies latitude in promulgating regulations and official interpretations
of statute and crafted agency-friendly judicial review standards.249  The Supreme
Court’s trend after Chevron is consistent with cases involving a review of a
military disability decision.250  Deference accorded to military disability cases is
also consistent with 10 U.S.C. § 1216(a), which gives broad authority to the
military services to administer the disability system.251  Yet, even when a military
decision is contrary to law, a court may be disinclined to second-guess a military
administrative decision.252    

There are several veterans and military service members benefit cases where
courts have checked the military’s authority without relying on administrative law
principles.253  In these cases, courts have held that the VA or military may not
simply select any interpretation of statutory term that conforms to the agency’s

246. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
247. Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000).
248. See Gonzalez v. Oregon, 546 U.S. 243, 257 (2006).
249. See supra Part III.
250. See infra Part IV.
251. See 10 U.S.C. § 1216(a) (2013) (“The Secretary concerned shall prescribe regulations to

carry out this chapter within his department.”).
252. See id.
253. See supra Part III.A.



2014] REFRAMING AND RECONSTITUTING 539

understanding of the law.254  Under these cases, courts have found that the
military or VA must select any interpretation that favors the veteran or service
member when the scales are equal.255  

A seminal case demonstrating these principles is Brown v. Gardner,256 which
concerned a veteran challenging the VA’s regulatory interpretation of a statute
that accorded the veteran a benefit.  The regulation required the veteran to show
that the agency was at fault for injuries resulting from medical care provided by
the VA for the veteran to be eligible for compensation.257   The statute itself did
not say anything about VA fault.  Similar to how the VA presently asserts
“involuntary” into its adjudicatory standards, the VA in Brown argued that the
word “injury” in the statute allowed it to read fault in order to justify its
interpretation. 258  The Brown court rejected this argument, stating: “[t]he most,
then, that the Government could claim on the basis of this term [injury,] is the
existence of an ambiguity to be resolved in favor of a fault requirement (assuming
that such a resolution would be possible after applying the rule that interpretive
doubt is to be resolved in the veteran’s favor).” 259  

Thus, the Court in Brown recognized that when there is ambiguity in a statute
that confers a benefit onto a veteran or service member, the universe of
permissible interpretations are restricted to that which favors the veteran or
service member.260  Veteran or military service member-friendly cases need not
be read as subverting Chevron.  Instead, a veteran or military service member-
friendly interpretation of a statute can coincide with Chevron.  Indeed, a joint
application of both Chevron and a service member-friendly reading is implied in

254. Id.
255. Id.
256. 513 U.S. 115 (1994).
257. Id. at 553.
258. Id.
259. Id. at 555.
260. See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946) (“This

legislation is to be liberally construed for the benefit of those who left private life to serve their
country in its hour of great need.”); see also Henderson v. Shinseki 131 S. Ct. 1197, 1206 (2011)
(quoting King v. St. Vincent’s Hosp., 502 U.S. 215, 220-21 (1991)) (“We have long applied ‘the
canon that provisions for benefits to members of the Armed Services are to be construed in the
beneficiaries’ favor.”); Sears v. Principi, 349 F.3d 1326, 1331-32 (2003) (finding a statute
ambiguous and affirming the VA interpretation because it favored veterans in the “vast majority
of cases” but not all); Boone v. Lightner, 319 U.S. 561, 575 (1943) (“The Soldiers’ and Sailors’
Civil Relief Act is always to be liberally construed to protect those who have been [obligated] to
drop their own affairs to take up the burdens of the nation.”); Boyer v. West, 210 F.3d 1351, 1355-
56 (Fed. Cir. 2000) (finding statute providing benefits to veterans unambiguous and rejecting the
veteran’s proposed interpretation); Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994),
superseded on other grounds by 38 U.S.C. § 7111 (2005), as recognized in Samish Indian Nation
v. United States, 419 F.3d 1355, 1367 (2005) (reviewing a VA interpretation of an unambiguous
statute not providing benefits to veterans and noting that a veteran may not “rely upon the generous
spirit that suffuses the law generally to override the clear meaning of a particular provision”). 



540 INDIANA LAW REVIEW [Vol. 47:509

Brown.261  The set of cases that advance a favorable reading of benefit-conferring
statutes to a veteran or service member filter the field of possible interpretations
of “permissible” under Chevron to those that favor the veteran or service member. 
Put another way, these cases are part of the “thumb on the scale in the veteran’s
favor in the course of administrative and judicial review of VA decisions.”262

Although several federal courts have tipped the scale in the service member’s
favor when there is ambiguity in a law that accords the service member
benefits,263 a reliance on these cases is not without risk.  First, federal courts have
departed from these cases and, as a consequence, have introduced uncertainty into
the administration of laws governing benefits for service members.  Secondly,
and perhaps more importantly, these pro-veteran and pro-service member cases
may rely on the same or similar paradigm upon which led the VA to erroneously
narrow the applicability of TSGLI.  That is, courts have also played a role in
propagating the paradigm of the combat-wounded warrior.  By elevating the
image of the heroic and self-sacrificing combat-wounded warrior to the level of
constitutional mantra, a court may also risk obscuring situations where service
members who sustain appreciable trauma outside the battlefield or sustain trauma
of an invisible form.  This is may be of special concern to female service
members who are not allowed in combat but may be acutely vulnerable to other
forms of trauma that too would place them and their family in financial distress. 
A court can mitigate these risks by applying a favorable interpretation of statute
or regulation to a service member’s particular situation.  This would help account
for realities that law and decision makers disregard or overlook when
administering laws that confer benefits to service members.

CONCLUSION

Congress enacted TSGLI to provide traumatically injured service members
with financial assistance.264  Congress intended to give traumatically injured
service members some reprieve from the financial hardships that set in during the
rehabilitation period.265  This principle, however, is not always the guiding
principle behind every TSGLI claim evaluation.  Adjudicators, policy makers,
and even lawmakers are guided by stereotypes, paradigms, or beliefs, grounded
not in law, but in a longstanding pervasive military culture that places, even
innocently or seemingly benignly, gender-biased prerogatives.266  In an institution
that enjoys greater deference than most federal civilian staffed and run agencies,
what incentive does the military and those who create military laws have to think
critically about its laws and policies?  Is there any impulse or motive to challenge,

261. Brown, 513 U.S. at 117.
262. Henderson, 131 S. Ct. at 1205 (quoting Shinseki v. Sanders, 556 U.S. 396, 416 (2009)

(Souter, J., dissenting)).
263. See supra Part III.A.
264. See supra Part I.
265. Id.
266. See supra Part II.



2014] REFRAMING AND RECONSTITUTING 541

undo, or uproot laws or policies that reflect a combat-warrior centered mindset? 
What interest is there to administer a benefits program like TSGLI in such a way
that service members who are traumatically injured and incur financial hardship
as a result are comprehensively cared for regardless of whether the injured
occurred in combat?  

This Article provides some reasons for an impetus to effect modest change
and reform.  There are countless male and female service members who have
dedicated many years to military service and made priceless sacrifices.  Many
serve in a variety of combat and non-combat roles, some with a greater proximity
to war hazards than others.  However, many service members, including women,
are vulnerable to workplace violence and assault.267  The resultant trauma may be
as lasting, deep, and disabling as trauma sustained in the war field.  But because
combat trauma occupies a preeminent role in military disability policy, non-
combat trauma is often disregarded and relegated to obscurity.268  To support the
system in its current iteration would give the military license to abdicate its role
as a sentinel of justice and inspire faithlessness among service members,
especially those who are particularly vulnerable to assault within the military.  A
paradigm of thought that elevates an ideal at the cost of relegating certain
experiences and realities to obscurity too would arouse sentiments of injustice and
unfairness among service members.  If unit cohesion is of paramount priority,
then yes there is ample interest to jettison paradigms of thoughts and allow the
reality of military service, in all of its facets, to dictate policies, laws, and the
administration of military benefits.

267. Id.
268. Id.