RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01167
 					COUNSEL:   
					HEARING DESIRED:  NOT INDICATED 


APPLICANT REQUESTS THAT:

His Servicemembers’ Group Life Insurance Traumatic Injury 
Protection (TSGLI) application be approved and he be paid 
$100,000 for the period of 20 Feb 08 to 20 Aug 08.


APPLICANT CONTENDS THAT:

The applicant thru counsel states that on 20 Feb 08, he fell 15 to 
16 feet while performing an aircraft inspection.  He injured his 
left shoulder, left wrist and knees and received emergency 
treatment that same day.  He was discharged with a sling and 
restriction of no lifting.  After his fall, he was diagnosed with 
a fractured humorous with possible torn ligament.  He was 
recommended for physical and occupational therapy 3 times per week 
for 8 to 12 weeks.  

Under the TSGLI guidelines, a claimant is considered unable to 
perform an activity independently if he/she requires at least 
stand-by assistance, physical assistance or verbal assistance to 
perform such ADL.  In this case, he required at least stand-by and 
physical assistance with bathing and dressing.

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.  

He was unable to bathe and dress independently from 20 Feb to 
20 Aug 08.  The medical records contain notations from his medical 
providers attesting to the loss of the Activities of Daily Living 
(ADL) and a timeline of treatment.  He met the legal requirements 
for payment of TSGLI for the loss of the ADL for a period of 
120 days as a result of a traumatic injury. 

On 19 Aug 08, he continued to have difficulty with the ADL. 
Despite numerous non-surgical efforts to alleviate his pain, he 
ultimately required surgery on 22 Jun 09 which resulted in 
additional recovery time and loss of the ADL.  

His claim was first denied on 27 Jun 13 and no reasoning was given 
except that the medical documentation provided did not indicate 
the loss met the standards for TSGLI.

On 10 Oct 13, his request for reconsideration was denied.  The 
reason was that the medical documentation did not support he was 
unable to perform at least 2 of the 6 ADL for at least 
30 consecutive days.

His claim for ADL benefits was arbitrarily denied, even though a 
medical professional provided a Part B form affirming that he met 
the criteria for ADL coverage.  The Air Force denied his claim and 
did not adequately advise him of the reason for a denial or 
factual justification for the denial in light of the preponderance 
of the evidence in support of awarding benefits in this case. 

The applicant’s complete submission, with attachments, is at 
Exhibit A.


STATEMENT OF FACTS:

According to NGB Form 22, Report of Separation and Record of 
Service, the applicant was discharged from the West Virginia Air 
National Guard (ANG) on 30 Jul 10.  

According to an emergency department report dated 20 Feb 08, he 
was treated and diagnosed with left proximal humorous fracture, 
bilateral knee contusions and left wrist sprain.  His left arm was 
placed in a sling and he was discharged with a prescription for 
pain medications.  

In a letter dated 27 Jun 13, the Office of Servicemembers’ Group 
Life Insurance (OSGLI) advised the applicant his request for TSGLI 
was denied.  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.  
The applicant was advised he could submit an appeal within one 
year.  


AIR FORCE EVALUATION:

AFPC/DPFC recommends denial.  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 2 of 6 ADL (eating, bathing, 
dressing, toileting, transferring and continence). 

Payment for loss of ADL due to traumatic injury other than brain 
injury is paid as follows:  $25,000 at the 30th consecutive day, 
an additional $25,000 at the 90th consecutive day, and an 
additional $25,000 at the 120th consecutive day.  

On 20 Feb 08, he fell down the crew entrance ladder of an AC-
27 aircraft resulting in a fracture of the left arm (non-dominant) 
with labial tear.  He submitted a TSGLI application claiming the 
inability to perform the ADL of bathing and dressing for the 
period of 20 Feb to 20 Aug 08.  The physician certifying the ADL 
loss indicates on the claim form that he had not observed the 
patient’s loss but reviewed the patient’s medical records to 
determine the loss claimed.  

There is no issue with the traumatic event; however, the 
physicians that reviewed the original claim and appeal packages 
disagreed with the applicant’s physician with regard to the 
applicant meeting the TSGLI criterion for ADL loss (bathe and 
dress) for any payable threshold.  

The physician, from USAFSAM/OET, that reviewed the initial TSGLI 
and medical records stated the following: "I can support his claim 
for loss of ADL (bathe) from 20 Feb 08 to 21 April 08.  From the 
records, he returned to work within one week after the accident 
and beginning 21 April could use his left (non-dominant arm) for 
minimal activities.  The therapy notes mention limitations with 
self-care ADLs, but the ROM measurements and treatment (sling only 
with no mention of movement restrictions) suggest that he had the 
capacity to dress himself.  Gripping and reaching right sided body 
parts (during shower) is possible for requiring assistance."  The 
certifying official denied the claim based on the doctor's review 
that only one ADL (bathing) met TSGLI loss criteria for a minimum 
of 30 consecutive days.

The AFPC/DPFDI physician that reviewed the appeal package and 
original claim documents said there was no direct evidence in the 
medical record that the applicant could not dress himself.  He 
stated the applicant had persistent limitations in range of motion 
in the left shoulder as well as weakness of grip and these 
symptoms extended well past 20 Aug 08 but they did not create a 
medical necessity for assistance with dressing and bathing for 
even 30 days, let alone the 120 days which the applicant claims.

When the applicant’s Doctor signed the claim form, he indicated he 
did not observe the applicant’s loss. 

The burden of proof is on the applicant to demonstrate that he 
suffered a scheduled loss as a result of his traumatic event.  
After reviewing the original claim and appeal, DPFC’s position 
remains that he did not meet the TSGLI criteria for ADL loss for 
any payable threshold.  It is reasonable to believe that having an 
arm in a sling may make bathing and dressing more difficult; 
however, it is also reasonable to believe that he would be able to 
use the uninjured arm to perform the basic functions albeit at a 
slower pace.

Based on 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 claim does not meet the TSGLI eligibility criteria for 
payment of ADL loss for 120 consecutive days or a lessor payment 
threshold.   

A complete copy of the DPFC evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A sworn affidavit from the applicant’s wife/caretaker is provided.  
She provided direct physical and stand-by assistance to the 
applicant following his injuries and was with him on a daily 
basis.  She verifies the facts outlined by the applicant’s medical 
provider in certifying the applicant’s 120 days of loss in ADL and 
that the applicant still requires some assistance with the ADL due 
to the ongoing nature of his injuries.

The preponderance of the evidence supports the applicant’s claim 
for the inability to bathe and dress independently for at least 
120 days.  Accordingly, the Board should find in his favor for 
TSGLI benefits in the amount of $100,000.  Should the Board desire 
to take testimony in this matter, they would be willing to 
accommodate that upon request.  

The applicant’s complete submission, with attachment, is at 
Exhibit E.


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’s spouse provides a 
sworn affidavit stating the applicant loss 120 days of ADL and 
still requires assistance due to the ongoing 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 Office of Primary Responsibility (OPR).  
Therefore, we agree with the opinion and recommendation of the Air 
Force OPR 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.

4.  The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel will 
materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably considered.


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-2014-01167 in Executive Session on 26 Feb 15 under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 18 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFC, dated 15 May 14.
        Exhibit D.  Letter, SAF/MRBR, dated 5 Jun 14.
        Exhibit E.  Letter, Counsel, dated 18 Jun 14, w/atch.  
        Exhibit F.  Letter, Counsel, dated 5 Aug 14.