IN THE CASE OF: BOARD DATE: 25 July 2013 DOCKET NUMBER: AR20120021608 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant defers requests and statements to counsel and provides no additional evidence. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests reconsideration of the previous request for reversal of the applicant's denied Traumatic Servicemembers Group Life Insurance (TSGLI) claim of $100,000.00 for 120 days loss of ability to independently perform Activities of Daily Living (ADLs). 2. Counsel states: a. The applicant's traumatic injury occurred during a convoy training exercise while preparing for deployment to Iraq. The applicant was riding in a Humvee when it hit a bump, jamming his left knee into a bolt protruding from the seat in front of him. b. The applicant's most recent appeal to the Army Board for Correction of Military Records (ABCMR) was denied on 27 October 2011. The letter from the ABCMR indicated the decision was final, but they could request reconsideration if new evidence or argument is presented. c. The Record of Proceedings indicated denial of the applicant's claim for several reasons. Among them are the applicant's claim fell outside the 2-year qualifying window, the described condition and medical treatment that fell within 2 years of injury was not compatible with the claimed loss, his claim "for loss of ADLs within the 730-day period allowed would have to be secondary to the arthroscopy. By law and regulation, in order to be eligible for TSGLI benefits for a traumatic injury, the loss must be a direct result of the traumatic event and no other cause." d. They respectfully appeal the decision of the U.S. Army TSGLI office. Sufficient medical information exists that proves the applicant requires another person to help him with at least two ADLs within the required time period and the loss was a direct result of the traumatic event. A medical professional has also certified the applicant's inability to perform at least two ADLs. The denial should be overturned and the applicant should receive $100,000.00 for the following reasons: (1) The applicant suffered an obvious traumatic event when he jammed his knee into a bolt while riding in a Humvee in July 2007; (2) As a direct result of this event he had limited use of his leg; (3) Because he had limited use of his leg for at least 120 days he required another person to help him with at least two ADLs; (4) The ADL loss occurred within 730 days of the traumatic event; and (5) A doctor certified the applicant required assistance with at least two ADLs and that he needed assistance for at least 120 days. The medical records support this doctor's findings. e. On or about July 2007, the applicant was part of a convoy training exercise in preparation for deployment to Iraq. After that month, while in Kuwait awaiting deployment into Iraq, the applicant's knee went completely out and he was placed on crutches. Doctors suspected osteochrondritis dissecans of the medial femoral condyle and a medial meniscus tear. The applicant's knee problems were severe enough to require medical evacuation to Landstuhl Regional Medical Center in Germany on 12 November 2007 for a period of 8 days. f. Due to his deployment in Operation Enduring Freedom, the applicant did not receive a complete diagnosis of his injury until on or about June 2008, when he returned to Fort Bragg, NC, and he was admitted to the Warrior Transition Battalion (WTB), Womack Army Medical Center. A radiological exam indicated the applicant had osteochondritis dissecans involving the medial femoral condoyle at the lateral side. This is a large defect measuring approximately 2.7 centimeters in length and 1.9 centimeters in width. Fluid signal undercutting the osteochondral fragment is seen throughout suggesting an unstable fragment. A complex tear involving the posterior horn of the medical meniscus is appreciated. This has both vertical and bucket handle components. g. As the applicant's condition continued to worsen, he received treatment at Pinehurst Surgical Clinic in North Carolina. After review of his magnetic resonance imaging and other medical records Doctor C--- suggested possible courses of treatment. They agreed to proceed with arthroscopy with possible Osteochondral Lesion repair. The surgery was scheduled for 6 August 2008 and the applicant began preparing for his incapacitation. The previous appeals addressed whether the claim had sufficient medical evidence for ADL loss and will not be discussed herein. The subject of this appeal addressed the Board's contention that the loss of ADLs within the 730-day period would have to be secondary to the arthroscopy. h. The applicant's ADL loss was within 730 days of the traumatic event. The injury caused damage to the cartilage in his knee that later required surgery in an attempt to repair it. He took conservative measures for almost 1 year before having arthroscopic surgery on 6 August 2008. He makes a claim for ADL loss from 6 August to 17 December 2008, for a minimum of 120 days. He suffered this loss starting in August 2008, well within 730 days of the traumatic event occurring in July 2007. i. The TSGLI Appeal Board's rationale for denial – that the documentation did not support ADL loss within 730 days – is immaterial. The Board should only consider his most recent application and disregard the others. The applicant's most recent application is a revision of prior applications and certified by his attending doctor to include ADL loss after August 2008. Therefore, his claim for ADL loss after August 2008 is well within the 730-day period. j. The Board stated in its conclusion that the claim for loss of ADLs within the 730-day period allowed would have to be secondary to the arthroscopy. The applicant makes a claim that the ADL loss within the 730-day period of August through 17 December 2008 directly resulted from the deterioration of his knee from jamming it into the bolt. Because the facts indicate that his loss directly resulted from the July 2007 event, he should receive $100,000.00. k. The loss is not secondary to the arthroscopy. The evidence shows the applicant has been preparing for ADL loss even before the arthroscopy. Almost 2 weeks before arthroscopy, the medical records from Womack indicated there are "defects or impairment that required significant restriction of use of the lower extremities." The applicant prepared for incapacitation and ADL care. Arrangements were made for his arthroscopic surgery on 6 August 2008 and included transportation and any post-operative needs. His friends agreed to assist him until his spouse arrived to provide him further with ADL assistance. He required assistance from several people to transport him, set up his room for the post-surgical period, and planned for his wife to travel to base to assist him. Further, his attending doctor and the medical evidence indicates the loss is a direct result of injuring his knee when he jammed it into the bolt. If it had not been for the accident during convoy training, the applicant would not have had the ADL loss. i. Finally, the facts of the applicant's claim are very much unlike the example provided in the TSGLI Procedures Guide, wherein the loss is completely unrelated to the event. His claim is similar to other examples where the service member falls, requires hip surgery, and needed ADL assistance due to the original event. The applicant was incapacitated and required constant help from his family. Congress enacted the TSGLI program to protect a service member in the applicant's situation. His life is forever changed because of an injury he sustained while serving his country. Financial assistance will not undo his pain and suffering; it will, however, make his life more manageable. 3. Counsel provides a copy of the ABCMR's previous Record of Proceedings. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110012779, on 27 October 2011. 2. Counsel provided new arguments that were not previously considered. Therefore, they are considered new evidence and warrant consideration by the Board. 3. With prior enlisted service, on 20 October 1994 the applicant was appointed in the Alabama Army National Guard, Medical Services Corps as a second lieutenant. He was promoted to major on 11 April 2007. He was ordered to active duty in support of Operation Iraq Freedom (OIF) with a reporting date of 15 July 2007. 4. His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 June 2008, that shows he sustained an injury to his left knee when the Humvee hit a bump during mobilization for deployment in June 2007. He was diagnosed with left knee osteochrondritis dissecans. The injury was determined to be in the line of duty. 5. Orders Number 164-001, issued by the WTB, Fort Bragg, dated 12 June 2008, assigned him to the WTB with an effective date of 12 June 2008. 6. He underwent arthroscopic surgery on 4 August 2008 and he was discharged from the hospital with a knee immobilizer and crutches and placed on 30 days convalescent leave. It was subsequently determined the screw placed in the femur split the bone and the physician was unable to remove the hardware. The option of knee arhroplasty was discussed, but the applicant preferred knee replacement. He was authorized extensions of his convalescent leave in increments of 30 days each. 7. He underwent left total knee arthroplasty on 22 September 2009. 8. In a letter from the Office of Servicemembers' Group Life Insurance, dated 25 November 2009, he was advised of the denial of his claim for TSGLI benefits. The letter also advised that his claim was disapproved because his loss did not occur within the prescribed time period defined by regulation. To be eligible for a TSGLI payment, his loss must have occurred within 730 days of the traumatic event. Because evidence indicated his loss occurred in June 2007 and the surgery date was September 2009, over 730 days after the traumatic event, his branch of service could not approve his claim. 9. On 22 January 2010, he was advised his request for reconsideration of his previous claim was unable to be overturned because the loss was not within the prescribed period as defined by the regulation. 10. On 18 May 2010, he was advised his second request for reconsideration of his previous claim was unable to be overturned because the loss was not within the prescribed period as defined by the regulation. 11. On 21 July 2010, he was advised his third request for reconsideration of his previous claim was unable to be overturned because the loss was not within the prescribed period as defined by the regulation. Additionally, he was advised the documentation he submitted to support the claimed loss for ADL was not within 2 years/730 days from the time of injury. 12. On 29 January 2012, he was retired by reason of permanent physical disability. 13. Public Law 109-13, signed by the President on 11 May 2005, established the TSGLI program. The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. TSGLI provides between $25,000.00 and $100,000.00 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense (DOD). 14. A traumatic event is defined as 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. A traumatic injury is defined as the physical damage to the body that results from a traumatic event. The event must involve a physical impact upon an individual. Some examples would include: an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head. It would not include an injury that is induced by the stress or strain of the normal work effort that is employed by an individual, such as straining of his/her back from lifting a ladder. 15. There are basic eligibility requirements that must be met in order to be eligible for TSGLI. All of the following must be met: a. The member must be an active duty or Reserve service member on the date a traumatic event occurs. b. The member must suffer a loss that is a direct (emphasis added) result of a traumatic event and no other cause. c. The member must survive for a period of at least 7 full days from the date of the traumatic event. d. The member must suffer a loss covered under the law within 2 years of the traumatic event. 16. Traumatic injuries covered under TSGLI may include the following types of losses: a. Total and permanent loss of sight in one or both eyes, loss of hand or foot by severance at or above the wrist or ankle, quadriplegia, paraplegia, or hemiplegia, coma or traumatic brain injury. b. Other traumatic injuries resulting in the inability to carry out two of the six ADL which are dressing, bathing, toileting, eating, continence, and transferring. 17. A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADL. If the member is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.), the patient is considered able to independently perform the activity. Requires assistance is defined as without the assistance, the patient would be incapable of performing the task. 18. TSGLI claims may be filed for loss of ADL if the claimant is dependent on someone else to perform two of the six ADL for 30 days or more and is incapable of performing the tasks without the required assistance. ADL loss must be substantiated by appropriate documentation such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. DISCUSSION AND CONCLUSIONS: 1. The applicant, as a member of the ARNG, was ordered to active duty in support of OIF with an effective date of 15 July 2007. In June 2008, he was diagnosed with left knee osteochrondritis dissecans as a result of an injury to his left knee when the Humvee hit a bump during mobilization for deployment. The injury was determined to be in the line of duty. There is no qualifying TSGLI traumatic event identified. 2. He was subsequently diagnosed with osteoarthritis that was presumed to be aggravated by the injury. He subsequently underwent arthroscopic surgery on 6 August 2008 and ultimately arthroplasty on 22 September 2009. His three claims for TSGLI were denied because the described condition and medical treatment that fell within the 730-day date of injury was not compatible with the claimed loss, meaning agreeable, and the ADL loss fell outside of the 730 day qualifying period. 3. Counsel's contentions and argument were carefully considered; however, by law, for an ADL loss to be covered there must be a traumatic event that leads to a loss for a duration of at least 30 days; the member must require assistance to perform two of six ADLs; and the ADL loss must be certified by a healthcare provider and substantiated by appropriate documentation, such as occupational/ physical therapy reports, discharge summaries, and other medical documentation. While counsel states the applicant was unable to ambulate and take care of himself, he did not provide any evidence the applicant sustained a loss as a direct result of a traumatic event. 4. The applicant's ADL loss after arthroplasty fell outside the 2-year qualifying; therefore, he was not entitled to TSGLI benefits. The available records do not show and counsel did not provide evidence that the applicant's TSGLI claims were improperly disallowed nor established a basis to support the requested relief. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ___X____ ___X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110012778, dated 27 October 2011. _______ _ X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120021608 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120021608 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1