IN THE CASE OF:	  

		BOARD DATE:	        16 APRIL 2009

		DOCKET NUMBER:  AR20080010819 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim to the U.S. Army Physical Disability Agency be reconsidered.

2.  The applicant states that the Army separated him because of the direct results of the events he sustained in Iraq.  He goes on to state that he has lost a $70,000 a year job due to his current health status that resulted from his deployment in support of Operation Iraqi Freedom (OIF) in which he was involved in eight separate improvised explosive device attacks directed at his vehicle.  He continues by stating that the Department of Veterans Affairs has tested him for traumatic brain injury and the results are devastating.  He further requests that the Board review the Top Secret reports that they filled out after every mission and contends that the Board will find that his daily life has permanently changed due to the events OIF.

3.  The applicant provides letters from a physician, a physician's assistant, and a rehabilitation counselor.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as an indirect fire infantryman in the Montana Army National Guard in the pay grade of E-7 when he was ordered to active duty in support of OIF on 28 June 2004.  He deployed to Iraq on 28 November 2004 and was promoted to the pay grade of E-8 on 24 January 2005.
2.  He departed Iraq on 23 December 2005 and was transferred to Fort Carson, Colorado, where he was retained on active duty (medical hold) at the convenience of the government.  The applicant had surgery performed on his right big toe to repair tendon damage on 11 May 2006.

3.  On 10 November 2006, he filed a claim for TSGLI for cubital tunnel syndrome, carpal tunnel syndrome, and post-traumatic stress disorder (PTSD).  There were no activities of daily living (ADL) certified on his claim and his physician did not indicate the loss of any ADLs, which is required to qualify for the symptoms claimed.  His claim was denied on 22 November 2006.

4.  On 1 February 2007, the applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year letter).

5.  On 8 February 2007, he filed a request for reconsideration of his TSGLI claim again claiming he had cubital tunnel syndrome, carpal tunnel syndrome, and PTSD, and again did not certify any loss of ADLs or have the ADLs certified by a physician.  The analyst reviewed the medical documents submitted by the applicant and was unable to find any evidence of loss of ADLs.  His request was again disapproved and a denial letter was dispatched on 14 March 2007.

6.  On 23 July 2007, he again appealed his TSGLI claim and indicated that he had cubital tunnel syndrome, carpal tunnel syndrome, PTSD, tinnitus and hearing loss.  The physician did not certify any loss of ADL nor did he certify the ADLs.  The analyst reviewed the medical documents submitted and was unable to find any evidence of loss of ADLs and the hearing loss did not meet hearing loss guidelines.  His third request was disapproved and a letter to that effect was dispatched on 14 September 2007.

7.  Meanwhile, on 10 September 2007, a physical evaluation board (PEB) was convened at Fort Lewis, Washington, which found that the applicant suffered from PTSD (30-percent disabling) and hallux regidus due to surgical arthrodesis of first metatarsophalangeal joint (big toe) performed on 11 May 2006 to mitigate pain of osteochandral fracture of the metarsal head.  His condition was improved by surgery but pain on use precluded his duty as an infantry senior sergeant 
(10-percent disabling).  The PEB recommended that he be placed on the temporary disability retired list (TDRL) with a reexamination in March 2009.

8.  Accordingly, he was honorably released from active duty on 3 January 2008 and was placed on the TDRL effective 4 January 2008 due to temporary disability.

9.  Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on 11 May 2005, established the TSGLI program.  U.S. Army Combat-Related Special Compensation 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.  The 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 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.

10.  There are 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 two of the six 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is qualified for TSGLI benefits was carefully considered and unfortunately determined to be without merit.

2.  Records clearly show that he sustained a foot injury while serving in support of OIF and that he was also diagnosed with PTSD.  He also claims that he has cubital tunnel syndrome, carpal tunnel syndrome, tinnitus, and hearing loss.  However, these conditions are not medically qualifying for TSGLI benefits without a loss of ADLs.

3.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that he was unable to perform two of the activities of daily living for the required period.

4.  Absent evidence to show that the applicant's disabilities met the criteria for award of TSGLI benefits, there is no basis to grant the relief requested.

5.  It is unfortunate that the applicant's request could not be granted in this case; however, this by no means diminishes the applicant's dedicated service to and sacrifices for a grateful nation.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  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.



      _________XXX________________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080010819





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ABCMR Record of Proceedings (cont)                                         AR20080010819



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