RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070008833 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise Prendergast

Member

Mr. James R. Hastie

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Traumatic Servicemembers' Group Life Insurance (TSGLI) claim be reconsidered. 

2.  The applicant states, in effect, that the decision on his TSGLI was not correct and he is requesting payment for the ADLs (Activities of Daily Living) that he could perform.  He believes the record to be unjust because between March and May 2006, he could not perform some of the ADLs listed, dressing, bathing, toileting, transferring and continence due to back spasms.   

3.  The applicant provides copies of several documents from his OMPF (Official Military Personnel File) and several documents relating to his TSGLI application in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the United States Army Reserve (USAR), in the rank of sergeant (SGT/E-5).  He was ordered to active duty on 15 June 2004 in support of Operation Iraqi Freedom.

2.  On 25 December 2004, the applicant injured his neck and left elbow while riding in a convoy.  The vehicle he was riding in hit an IED (Improvised Explosive Device) hole.  His seat belt broke and he was thrown into the ceiling.  He was taken to a medical facility for treatment.  He was given medication, quarters, and monitored by personnel.  

3.  On 10 June 2005, he was attached to the Medical Processing Unit, at Fort Drum, New York.  On that same day, a post deployment health assessment was completed and his injuries were noted.  To questions about his general health, he responded he was in "good" health.  When asked if he was on profile or light duty, he responded, "no."

4.  The applicant provided a copy of ADL Assessment Guidelines, which are undated.  It lists the ADLs that he was unable to perform such as dressing, bathing, transferring, toileting, and continence.

5.  The applicant did state he had developed problems [neck, low back, and right knee injuries] during this deployment. 



6.  On 15 June 2005, the applicant was assigned to the Medical Retention Center, Fort Drum, New York, to voluntarily participate in the completion of his medical care and treatment.

7.  On 5 January 2006, the applicant submitted a TSGLI claim for loss of ADLs 
for dressing, bathing, toileting, and transferring for 120 days due to his neck and left elbow injury.  On the form he indicated the date of onset of the condition to be 26 December 2004.

8.  Part B (To be Completed by Attending Physician) of the applicant’s Certification of Traumatic Injury Protection [TSGLI] Form, dated 6 January 2006, shows that his attending physician essentially stated that he could not perform dressing, bathing, and transferring independently for over 120 days.  He also stated, in effect, that he had a hard time sitting, standing, and bending and with all ADLs.

9.  On 1 March 2006, the Office of SGLI (OSGLI) informed the applicant that his TSGLI claim was disapproved based on the evidence available.  The OSGLI stated that to be eligible he must have incurred a covered loss and that loss must have been a direct result of a traumatic event.  He did not incur a covered loss.  Therefore, his claim could not be approved.  

10.  On 21 June 2006, the Army Human Resources Command (AHRC) notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

11.  The applicant provided several copies of Part B, Certification of Traumatic Injury Protection [TSGLI] Form, dated 2 February 2006 [1 copy] and 19 July 2006 [6 copies].  The forms indicate that he was unable to perform the ADLs of dressing, bathing, toileting, eating, and transferring independently for 120 days.  The physician, in effect, elaborated and commented on each form regarding the applicant's medical status and his limitations.

12.  The OSGLI received the applicant's appeal request on an unknown date.  His appeal package is unavailable for review.  

13.  On 5 October 2006, the applicant was notified his appeal had been reviewed by TSGLI Branch, Army Human Resources Command (AHRC).  AHRC was unable to find any documentary evidence to reverse the decision made on his claim.  The decision remained unchanged.  The supporting medical 


documents did not support the physician’s certification.  There was insufficient medical documentation to support that he was unable to perform ADLs independently.  He was advised of his rights to appeal their decision to this Board.

14.  On 16 October 2006, the applicant was issued a permanent profile of 313211 for bilateral knee pain, hearing loss, LBP (low back pain), and sleep apnea.  His profile assignment limitations were unlimited walking, biking, swimming, upper body and lower weight training, and no APFT (Army Physical Fitness Test).  He was precluded from risk-taking behavior, no ATV (all terrain vehicle) or motorcycle riding and no operation of motorized vehicles while on narcotics.

15.  On 15 December 2006, the OSGLI reviewed his appeal and informed the applicant that his documents should be submitted to this Board for further evaluation of his claim.

16.  On 17 December 2006, a report of medical assessment was prepared for the purpose of an MEB (medical evaluation board).   

17.  On 24 May 2007, the Medical Record Report, MEB Narrative Summary, diagnosed the applicant as having:  (1) Contusion and strain of neck and lower back s/p (status post), LBP, Degenerative Disc Disease (DDD) Lumbar Spine;  (2) Obstructive Sleep Apnea with CPAP (Continuous Positive Airway Pressure); (3) Contusion and strain bilateral knees s/p, right Knee posterior cruciate ligament (PCL) surgical repair; (4) PTSD (Post Traumatic Stress Disorder);       (5) Depression; (6) Panic Attacks; (7) Hearing loss, Tinnitus; (8) Contusion and strain of bilateral wrists and elbows s/p; and (9) Alopecia Areata, Prurigo Nodularis, Acanthotic Mucosa, Tinea Pedis.

18.   The applicant is currently on medical hold awaiting an appearance before an MEB/PEB (Physical Evaluation Board). 

19.  Public Law 109-13 (The, Emergency Supplement Appropriations Act, for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on May 11, 2005, established the TSGLI program.  U.S. Army Combat-Related Special Compensation (CRSC) has been designated as the lead agent for implementing the Army 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 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.  As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage.  Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1 taken out each month to cover the cost of the TSGLI policy.  Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package.  In addition, there is a retroactive program, in which Soldiers who incurred a qualifying traumatic injury from 7 October 2001 through 30 November 2005, while supporting OIF and OEF or under orders in a Combat Zone Tax Exclusion (CZTE) area are covered regardless of whether they elected SGLI coverage or not.  Soldiers who elect SGLI coverage and incur a qualifying traumatic injury after 1 December 2005 (with the exception of some specific circumstances under which a traumatic injury will not be covered), regardless of their component (Active, Reserve, or National Guard) or the location in which they incurred the injury will be covered by TSGLI. 

20.  There are some specific circumstances under which a traumatic injury will not be covered by TSGLI.  A qualifying traumatic injury is an injury or loss caused by application of external force or violence (a traumatic event) or a condition whose cause can be directly linked to a traumatic event.  Traumatic injuries covered may include, but are not limited to the following types of losses:

	a.  total and permanent loss of sight in one or both eyes;

	b.  loss of hand or foot by severance at or above the wrist or ankle; 

	c.  total and permanent loss of hearing in one or both ears;

	d.  loss of speech;

	e.  loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints;

	f.  quadriplegia, paraplegia or hemiplegia;

	g.  3rd degree or worse burns covering 30 percent of body or 30 percent of the face;

	h.  coma or traumatic brain injury; or

	i.  other traumatic injuries resulting in the inability to carry out two of the six ADLs, which are dressing, bathing, toileting, eating, continence, and transferring. 
TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform 2 of the 6 ADLs for 30 days or more 
(15 days or more in the case of traumatic brain injuries).  ADL loss must be certified by a healthcare provider in Part B of the claim form, and 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 won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence provided by the applicant was carefully considered.  The applicant’s disagreement with responses to his TSGLI claims is noted; however, evidence of record clearly shows that although he suffered an injury to his neck and left elbow, during Operation Iraqi Freedom, he was not unable to perform some of the ADLs due to his injury.  The evidence failed to show that he incurred a covered loss and that the loss was the direct result of a traumatic event.

2.  The statement by the applicant’s attending physician in Part B of his TSGLI claim form, dated 19 July 2006, indicated that he was unable to perform the ADLs of dressing, bathing, toileting, eating, and transferring independently for over 120 days is not corroborated.  It is noted that the applicant did require extensive medical care and support following his injury; however, it did not approach the level of required documentation to support or justify a TSGLI payment for loss of ADLs.

3.  The applicant is currently assigned to the medical holding company and pending a MEB/PEB for further examination of his injuries.

4.  The applicant has not provided sufficient documentation to support his contention that his TSGLI claims were improperly disallowed.  Neither the available records nor the medical documentation the applicant provided establish a basis to support his request. 

5.  In view of the circumstances in this case, the applicant is not entitled to reconsideration of his TSGLI claim.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LDS___  __EP____  ___JH___  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 for correction of the records of the individual concerned.




____Linda D. Simmons__________
          CHAIRPERSON




INDEX

CASE ID
AR20070008833
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071204
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR active duty Reservist/Med Hold. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
128
2.

3.

4.

5.

6.