RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-01054
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
His Service Members Group Life Insurance Traumatic Injury
Protection (TSGLI) claim be approved due to his inability to
perform at least two of the six Activities of Daily Living
(ADLs) for 60 consecutive days.
________________________________________________________________
APPLICANT CONTENDS THAT:
Due to his traumatic injury, he is entitled to TSGLI and he has
provided the supporting documents indicating his inability to
perform at least two of the six ADLs. He has also provided a
duty limiting profile reflecting his diagnosis.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicant is currently serving in the Regular Air Force in
the grade of Senior Airman (SrA, E-4).
According to documentation provided by the applicant from the
Department of Neurosurgery and Brain Repair, dated 12 Sep 12, on
13 Feb 12, he was involved in a vehicle accident that
hospitalized him from 13 Feb 12 to 15 Feb 12. He was diagnosed
with post-traumatic stress disease due to Traumatic Brain injury
(TBI) as a result of the vehicle accident and required
assistance bathing and changing his clothes from 13 Feb 12 to
14 May 12.
According to a SF 600, Chronological Record of Medical Care,
dated 16 Feb 12, the applicant was placed on convalescence leave
as a result of a closed fracture of the sixth cervical vertebrae
from 16 Feb 12 to 27 Feb 12 with instructions to return the
following week for further treatment plans and limitations.
According to a SF 600, dated 27 Feb 12, the applicant was
released from convalescence leave and returned to duty with
limitations of no running, no lifting/pushing/pulling more than
5 pounds, no high impact activities, and no repetitive bending
at the waist.
According to a SF 600, dated 21 Mar 12, the applicant was
continued with limitations of no running, no
lifting/pushing/pulling more than 5 pounds, no high impact
activities, no repetitive bending at the waist, to include
having to wear an Aspen Cervical Collar in uniform.
The applicant submitted a TSGLI application, dated 12 Jun 12,
claiming the inability to perform the ADL of bathing and
dressing during the period of 13 Feb 12 and 14 May 12 (signed by
the certifying medical professional on 14 Jun 12).
In a letter provided by the applicant, dated 13 Aug 13, the
Physical Disability Division denied his appeal of his TSGLI
application indicating his loss did not meet the eligibility
criteria for inability to perform ADLs. Specifically stating,
the medical documentation does not support that he was unable to
perform at least two of the six ADLs for at least 15 consecutive
days due to TBI or 30 consecutive days due to other traumatic
injury.
________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPFC recommends denial indicating that after reviewing the
applicants original claim and appeal, he does not meet TSGLI
criterion for ADL loss due to TBI or Other Than TBI (OTI) for any
payable threshold. On 5 May 05, Public Law 109-13 established a
traumatic injury program designed to provide financial
assistance to service members during recovery from a serious
traumatic injury (not necessarily as a result of combat). TSGLI
is a rider to the SGLI policy. TSGLI pays a monetary benefit
from $25,000 to $100,000 for covered losses that are incurred by
the member as a result of traumatic injury. Code of Federal
Regulations (CFR) Title 38 Para 9.20 prescribes that each
service certifies whether a service member was insured under
SGLI and whether they sustained a qualifying loss. The TSGLI
loss criteria are prescribed in the TSGLI Procedures Guide. A
member is considered to have a loss of ADL if the member
requires assistance to perform at least two of the six ADLs
(eating, bathing, dressing, toileting, transferring and
continence).
Based on the eligibility criteria outlined in CFR Title
38 9.20 and Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief,
2005 (Public Law 109-13), the applicants TSGLI claim does not
meet the TSGLI eligibility criteria for payment of ADL loss for
90 consecutive days or lessor payment threshold.
The burden of proof is on the applicant to demonstrate that he
suffered a scheduled loss as a result of his traumatic event.
Most of the applicants contentions referencing various
publications pertain to the Medical Evaluation Board or
Disability process. The TSGLI program is separate from those
programs and therefore, those publications are not applicable to
his claim. Additionally, the applicants reference to the
Neurological Surgeons letter, dated 12 Sep 12, explaining his
inability to independently perform two ADLs, actually
contradicts the TSGLI claim form that say the ADL loss was due
to having to wear the cervical collar vice TBI.
The complete DPFC evaluation is at Exhibit C.
The BCMR Medical Consultant recommends denial. The applicant
has not provided his initial assessment at the time/date of
hospitalization, the status of his condition(s) at the time of
discharge from hospital, nor details of his clinical progress
during the total period of care designated in the surgeons
memo. The applicant being returned to duty does not mean he no
longer requires assistance in certain ADLs once these have been
accomplished for a given day. Additionally, the applicant has
not provided any chronological objective assessment of his
cognitive functioning from the time of injury through 14 May 12,
the end date referred to in his providers memo. The applicant
has only provided the memo from his surgeon, with the general
statement that he was unable to bathe and dress from 13 Feb
12 to 14 May 12. With respect to TBI, the TSGLI policy requires
physical, stand-by, or verbal assistance to perform the
applicable ADLs. The applicant has provided no evidence to
indicate which, if either, of these requirements were met.
Furthermore, other than the brief memo from the applicants
neurosurgeon, there is no indication in the provided medical
documentation that there was a need for assistive devices,
specifically for dressing and bathing or a requirement for
hands-on assistance, stand-by assistance, or any sort of verbal
coaching in any functions. There are no discharge planning
summaries or notes provided to indicate instructions were given
to a caregiver or an individual who would be responsible for
assisting the applicant in his recovery from his date of
discharge from the hospital to 14 May 12.
Lastly, if the applicants sixth cervical vertebral body
fracture and the use of the Aspen Cervical Collar, which appears
to have exceeded 30 days, also required the assistance of
another person to bathe and dress him, then the minimum
criterion for OTI could be met. However, no evidence has been
provided to indicate the applicant was strictly prohibited from
removing the collar for any reason, but particularly for
dressing or bathing. Nor that the collar was an impediment to
bathing and dressing and required the assistance of another
individual for the minimum 30 days.
The complete BCMR Medical Consultant evaluation is at Exhibit D.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant asserts that no comments were made by DPFC or the
BCMR Medical Consultant against the validity of his
neurosurgeons memorandum addressing his inability to perform
two ADLs. DPFCs claim that AFI 48-123, AFI 36-3212, and DoDI
1332.39 are not applicable appears to disassociate the
congruency that TBI and OTI should and will be categorized to a
common standard. The sole purpose of pointing out those
publications was to emphasize the importance of coherency.
Additionally, DPFC infers that the 27 Feb 12 restrictions placed
on him upon his return to duty is grounds for being independent.
However, those restrictions were required wearing an aspen
collar and taking anti-seizure and pain medication in which both
affect spatial awareness. Additionally, DPFC assumed the
restrictions after 27 Feb 12 were different during convalescent
leave, apparently omitting a memorandum that states the
inability to perform ADLs independently until 14 May 12 as a
result of TBI. The purpose of a profile is to allow members to
at least perform tasks contingent to their physical abilities.
DPFC later cites publications TSGLI claims are based on;
however, none qualify a denial of benefits where a medical
professional identified two ADL losses.
The BCMR Medical Consultant refers several times to incorrect
dates and references to an attached memorandum, dated 21 Sep 12.
Also he references that the initial claim was a hospitalization
due to TBI and indicates that an additional qualifying criterion
is limited to the length of hospital stay. However, according
to TSGLI Schedule of Losses, Part 1, Number 17, Coma from
traumatic injury AND/OR TBI resulting in inability to perform at
least 2 ADLs
and the members inability lasts for at least
15 consecutive days
Additionally, the consultants claim that
the civilian hospital failed by not making available an
evaluation by an occupational therapist prior to discharge,
lacks coherency because less than one percent of the U.S.
population is in the military. DPFCs confirmation of the
information received for review, even with several errors made
in response by the BCMR Medical Consultant, agrees the documents
align with TSGLI compensation criteria. While the BCMR Medical
Consultant claims the necessary information was not there, the
applicant maintains, to even send a BCMR application, the TSGLI
clam had to be denied several times, and every document
pertaining to the claim was sent to the TSGLI representatives.
Each denial never discredited the memorandum by the neurosurgeon
and the BCMR application was to point out that significant issue
in which the BCMR Medical Consultant never addressed. The
neurosurgeons memorandum is sufficient evidence and there is no
claim to disregard its validity at any point.
The applicant maintains that the issue is what is considered
agreeable documentation and asserts there is an arbitrary
acceptance of documents diagnosing TBI and OTI; however the
memorandum is completely overlooked, even when the same resource
provided the information. He argues that DPFC indicates his
claim does not meet the TSGLI eligibility criteria; however,
according to Public Law (PL) 109-13 section 1032, the
documentation provided by the medical professional clearly
indicates his inability to perform two of the ADLs listed in PL
109-13. He asserts that the documents provided directly support
ADL losses either by directly pointing it out or in a profile.
Therefore, the applicant contends that the criterion has been
met for TSGLI and denial of his claim is a complete injustice.
The applicants complete response, with attachments, is at
Exhibit F.
________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by
existing law or regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. After a
thorough review of the available evidence and the applicants
complete submission we are not persuaded the applicants TSGLI
application should be approved. We note the applicant provides
a memorandum from his neurosurgeon stating the applicant needed
assistance in two ADLs for approximately 90 days due to the
nature of his injuries. However, in our opinion, substantial
evidence has not been presented to successfully refute the
assessment of his case by the Air Force Offices of Primary
Responsibility (OPR). Therefore, we agree with the opinions and
recommendations of the Air Force OPRs and adopt the rationale
expressed as the basis for our decision that the applicant has
failed to sustain his burden of proof of either an error or an
injustice. Absent persuasive evidence that he was denied rights
to which he was entitled, we find no basis to recommend granting
the relief sought in this application.
________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of material error or injustice; the
application was denied without a personal appearance; and the
application will only be reconsidered upon the submission of
newly discovered relevant evidence not considered with this
application.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2014-01054 in Executive Session on 8 Apr 15, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 5 Mar 14, w/atchs.
Exhibit B. Applicant's Available Master Personnel Records
Exhibit C. Letter, AFPC/DPFC, dated 14 May 14.
Exhibit D. Letter, BCMR Medical Advisory, dated 12 Nov 14.
Exhibit E. Letter, SAF/MRBR, dated 2 Feb 15.
Exhibit F. Letter, Applicant, undated, w/atchs.
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