Search Decisions

Decision Text

AF | BCMR | CY2014 | BC 2014 01054
Original file (BC 2014 01054.txt) Auto-classification: Denied
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 Member’s 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 applicant’s 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 
applicant’s 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 applicant’s 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 applicant’s 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 applicant’s reference to the 
Neurological Surgeon’s 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 surgeon’s 
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 provider’s 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 applicant’s 
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 applicant’s 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 
neurosurgeon’s memorandum addressing his inability to perform 
two ADLs.  DPFC’s 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 member’s inability lasts for at least 
15 consecutive days…”  Additionally, the consultant’s 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.  DPFC’s 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 
neurosurgeon’s 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 applicant’s 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 applicant’s 
complete submission we are not persuaded the applicant’s 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.


Similar Decisions

  • AF | BCMR | CY2014 | BC 2014 02007

    Original file (BC 2014 02007 .txt) Auto-classification: Denied

    The criteria for ADL loss as it is defined in the TSGLI procedures Guide follows: A member is considered to have a loss of ADL if the member REQUIRES assistance to perform at least two of the six activities of daily living. Initial medical review of the claim the physician indicated that he would allow for the applicant requiring assistance for dressing but not bathing. A complete copy of the AFPC/DPFC evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant’s...

  • AF | BCMR | CY2014 | BC 2014 00608

    Original file (BC 2014 00608.txt) Auto-classification: Denied

    A complete copy of the AFPC/DPFC evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel argues that evidence material to the claim was not considered, the relevant standards for providing ADLs loss were misapplied, and the applicant’s underlying traumatic injury was questioned although he received an initial payment of $25,000. The preponderance of the evidence in the applicant’s case proves he sustained at least 90 day ADL loss due to his traumatic...

  • ARMY | BCMR | CY2013 | 20130016202

    Original file (20130016202.txt) Auto-classification: Denied

    The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. Part II losses include traumatic injuries resulting in the inability to perform at least 2 ADLs for 30 or more consecutive days and hospitalization due to a traumatic injury and other traumatic injury (OTI) resulting in the inability to carry out 2 of the 6 ADLs, which are dressing, bathing, toileting, eating, continence, and transferring. The applicant's...

  • AF | BCMR | CY2014 | BC 2014 01789

    Original file (BC 2014 01789.txt) Auto-classification: Denied

    The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B. In this case, there is no issue with the traumatic event element; however, the physicians that reviewed the original claim and appeal packages disagreed with the physician who certified ADL with regard to the patient meeting TSGLI criterion for ADL loss (bathe and dress) for any payable...

  • AF | BCMR | CY2014 | BC 2014 01167

    Original file (BC 2014 01167.txt) Auto-classification: Denied

    His medical provider certified his inability to perform at least 2 of the ADL for over 90 consecutive days and that he required the assistance of another person to help him bathe from 20 Feb to 20 Aug 08. His claim for the inability to perform the ADL due to traumatic injury was not approved as the medical documentation provided did not indicate the loss met the standards for TSGLI. He submitted a TSGLI application claiming the inability to perform the ADL of bathing and dressing for...

  • ARMY | BCMR | CY2014 | 20140003979

    Original file (20140003979.txt) Auto-classification: Denied

    Counsel requests reconsideration of the applicant's request for TSGLI by the Board on the basis that the preponderance of the evidence supports that he had 90 consecutive days of ADL loss which entitled him to an additional $50,000 TSGLI payment. Because he fractured his tibia and fibula, he required a spanning external fixator for a period of over 90 days in which he required assistance with ADLs from 19 June 2011 through 10 October 2011. The primary reason stated for the denial is "these...

  • AF | BCMR | CY2014 | BC 2014 01344

    Original file (BC 2014 01344.txt) Auto-classification: Denied

    His medical provider documented that he was unable to perform 4 of the 6 ADLS for 60 days. The claim and medical records were reviewed and his request for loss of ADLs (bathe, dress, toilet) due to Other Traumatic Injury (OTI) from 10 Jul to 21 Aug 03 was approved and he was paid $25,000 on 5 Jun 13. 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...

  • ARMY | BCMR | CY2013 | 20130001514

    Original file (20130001514.txt) Auto-classification: Denied

    The TSGLI program was established by Congress to provide financial relief to Soldiers and their families after suffering a traumatic injury. Part II loss includes traumatic injuries resulting in the inability to perform at least 2 ADL for 30 or more consecutive days and hospitalization due to a traumatic injury and Other Traumatic Injury (OTI) resulting in the inability to carry out 2 of the 6 ADL, which are dressing, bathing, toileting, eating, continence, and transferring. The medical...

  • ARMY | BCMR | CY2011 | 20110003444

    Original file (20110003444.txt) Auto-classification: Denied

    To qualify for TSGLI payments the applicant must establish that he requires some form of assistance to perform at least two of the six ADL's. On 31 August 2007, a medical professional, who had not observed the applicant's loss but did review his medical records, completed Part B. Neither the available records nor the medical documentation the applicant provided establishes a basis to support his request.

  • ARMY | BCMR | CY2011 | 20110015703

    Original file (20110015703.txt) Auto-classification: Denied

    To be eligible for payment of TSGLI, service members must meet all of the following requirements: * must be insured by SGLI when you experience a traumatic event * must incur a scheduled loss and that loss must be a direct result of a traumatic injury * must have suffered the traumatic injury prior to midnight of the day that you separate from the uniformed services * must suffer a scheduled loss within 2 years (730 days) of the traumatic injury * must survive for a period of not less than...