RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-02007

						COUNSEL:  YES

						HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

His Servicemembers’ Group Life Insurance Traumatic Injury 
Protection (TSGLI) claim be approved 


APPLICANT CONTENDS THAT:

His inability to perform at least two of six Activities of Daily 
Living (ADL) for 90 consecutive days make him eligible for TSGLI 
payment.  The initial decision to deny his TSGLI claim should be 
reversed.

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


STATEMENT OF FACTS:

The applicant initially entered the Air Force Reserve on 1 Feb 
05.

On 13 May 09, the applicant was injured in a duty related all 
terrain vehicle (ATV) accident at Dobbins ARB, GA.  He ran over 
his own right leg while operating an ATV.  He sustained a closed 
fracture of his distal tibia and fibula of the right leg.

On 14 Nov 12, the applicant submitted a TSGLI application 
claiming the inability to perform the ADLs of bathing and 
dressing (due to other traumatic injury (OTI) for the period 
13 May 09 to 12 Aug 09.  His claim was denied on 8 Feb 13.  The 
reason given was “your claim for the inability to perform 
activities of daily living due to other traumatic injuries was 
not approved because your loss did not meet the standards for 
TSGLI.”

On 11 Jul 13, the applicant appealed the decision; however, 
reconsideration was denied on 10 Oct 13.  The reason given was 
the medical documentation did not support that he was unable to 
perform at least two of the six activities of daily living (ADL) 
for at least 30 consecutive days.

On 12 Nov 13, the applicant went through the Informal Physical 
Evaluation Board (IPEB) and was found unfit and recommended 
discharge with severance pay with a disability rating of ten 
percent.  

On 20 Nov 13, The Secretary of the Air Force Personnel Council 
(SAFPC) directed the applicant be separated from active service 
for physical disability under the provisions of 10 USC 1203, 
with severance pay.

On 25 Feb 14, the applicant was discharged honorably, and was 
credited with 9 years and 24 days of active service.  

The remaining relevant facts pertaining to this application are 
contained in the memorandum prepared by the Air Force office of 
primary responsibility (OPR), which is attached at Exhibit C.    


AIR FORCE EVALUATION:

AFPC/DPFC recommends denial indicating there is no evidence of 
an error or an injustice.  Based on the eligibility criteria 
outlined in CFR 38 9.20 and Emergency Supplemental Appropriation 
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 or 90 
consecutive days or lessor payment threshold.  The burden of 
proof is on the applicant to demonstrate he suffered a scheduled 
loss (in this case, inability to perform two of six ADLs for at 
least 30 consecutive days).  Neither the original claim nor the 
appeal was arbitrarily denied.  Two experienced physicians 
reviewed the claim and medical records and determined the 
applicant did not meet the criteria for ADL loss.  The applicant 
submitted a TSGLI application claiming the inability to perform 
the ADLs of bathing and dressing (due to other traumatic injury 
(OTI)) for the period of 13 May 09 to 12 Aug 09.  The physician 
utilized by the applicant to certifying the ADL loss was 
provided by the Law firm representing the applicant.  The 
physician indicated on the claim form he had not observed the 
patient’s loss, but had reviewed the patient’s medical records 
to determine the loss claimed. 

The qualifications for TSGLI include the following:  there must 
be a traumatic event, as defined by TSGLI law, which causes 
physical damage to the body resulting in a scheduled loss.  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.  If the patient is able to perform 
the activity by using accommodating equipment (such as a cane, 
walker, commode, etc.) or adaptive behavior, the patient is 
considered able to independently perform that activity.  

REQUIRES assistance is defined as:  

Physical assistance – when a patient requires hands-on 
assistance from another person

Stand-by assistance – when a patient requires someone to be 
within arm’s reach because the patient’s ability fluctuates and 
physical or verbal assistance may be needed

Verbal assistance – when a patient requires verbal instruction 
in order to complete the ADL due to cognitive impairment. 
Without these verbal reminders, the patient would not remember 
to perform the ADL.

Without the physical, stand-by, or verbal assistance, the 
patient would be incapable of performing the task.  

When a member is unable to perform two of the six activities of 
ADL due to a traumatic injury other than Traumatic Brain Injury 
(TBI), the TSGLI benefit will be paid based on the number of 
consecutive days the member is unable to perform ADL.  The 
duration of loss of ADL includes the date the member began to be 
unable to perform ADL and the date the member was again able to 
perform ADL.  

On 5 May 06, Public Law 109-13 was signed by President Bush 
establishing a traumatic injury program designed to provide 
financial assistance to servicemembers during recovery from a 
serious traumatic injury (not necessarily the result of combat).  
The insurance (TSGLI) is a rider to the member’s Servicemembers’ 
Group Life insurance (SGLI) policy.  TSGLI pays a monetary 
benefit from $25k to $100k for covered losses that are incurred 
by the member as a result of a traumatic injury.

The physician from USAFSAM/OET, that initially reviewed the 
applicant’s TSGLI claim, supported his claim for loss of ADLs 
(dress) due to OTI from 13 May 09 to 23 Jun 09.  The applicant 
was released following surgery with crutches and touchdown 
weight bearing.  With those accommodations, he should reasonably 
be able to independently bathe.  The certifying official denied 
the claim based on the doctor’s review.  

The physician from AFPC/DPFDI, reviewed the appeal package and 
original claim documents and said the following:  “I have 
reviewed the case of the applicant who is appealing the denial 
of his TSGLI claim.”  The applicant was injured May 2009 when he 
ran over his own right leg while operating an ATV.  The 
applicant suffered a closed fracture of the distal tibia and 
fibula of the right leg.  In the applicant’s appeal he claims he 
was essentially bed-ridden and helpless for the first month 
after surgery.  Medical record entries are contrary to that 
claim.   On the date of discharge it is noted that the patient 
was instructed to perform touchdown weight bearing with the use 
of crutches.  It was noted that the applicant had to climb a 
flight of stairs to get to his apartment and he was quoted as 
saying he had accomplished stair climbing in physical therapy 
that day.  Initial medical review of the claim the physician 
indicated that he would allow for the applicant requiring 
assistance for dressing but not bathing.  It is the opinion of 
this office that that neither was required.  Within thirty days, 
the applicant should have mastered dressing and bathing himself.  
The claim by the applicant and his mother that he was dependent 
on his family for essentially all ADLs for many weeks after the 
surgery is contradicted by the fact that clinic notes from 27 
May 09 indicated that the applicant’s orthopedic surgeon 
instructed him to continue touchdown weight-bearing and to begin 
quadriceps strengthening exercise and more aggressive 
stretching.  This indicates the applicant was at a much higher 
functional level than portrayed in the letters submitted as part 
of the appeal.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel refutes virtually every point made by the 
OPR and argues the applicant did meet the requirements for 
payment for at least 90 days of ADL loss as a result of a 
traumatic injury.  Counsel disputes the language used by the 
physician “assistance was not medically required,” as it does 
not say in the TSGLI Procedure Guide that such services are 
medically required.  The applicant needed assistance and not 
everyone requires the same assistance under the same or similar 
circumstances. Each case should be measured on its own 
individual merits as they are all unique.  The applicant met the 
requirement of requiring stand-by assistance (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 an error or injustice.  We took 
notice of the applicant’s complete submission, to include his 
rebuttal response, in judging the merits of the case; however, 
we agree with the opinion and recommendation of the Air Force 
office of primary responsibility (OPR) and adopt its rationale 
as the basis for our conclusion the applicant has not been the 
victim of an error of injustice.  Therefore, in the absence of 
evidence to the contrary, we find no basis to recommend granting 
the requested relief.


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-2014-02007 in Executive Session on 16 Apr 15, under 
the provisions of AFI 36-2603:

	
The following documentary evidence pertaining AFBCMR Docket 
Number BC-2014-02007 was considered:

	Exhibit A.  DD Form 149, dated 13 Dec 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFC, dated 10 Jun 14.
	Exhibit D.  Letter, SAF/MRBR, dated 4 Aug 14.
      Exhibit E.  Counsel Rebuttal, dated 20 Aug 14.