IN THE CASE OF:	  

		BOARD DATE:	        24 February 2009

		DOCKET NUMBER:  AR20080016438 


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 for being completely dependent on another person for completion of activities of daily living (ADL) be reconsidered.

2.  The applicant states that he was injured by a car bomb in Iraq and that his injuries and subsequent surgeries left him unable to perform a number of ADLs for an extended period of time.  He adds that he qualified and applied for TSGLI benefits, but was unjustly denied.

3.  The applicant provides additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be paid TSGLI benefits.

2.  Counsel states that the applicant sustained arm injuries as a result of a car bomb explosion in Iraq on “27 October 2008.”  His subsequent surgery caused his arms to be in splints for a total of 14-18 weeks.  He was treated by Dr. Cxxxxxy and Nurse Rxxn who have submitted letters indicating that the applicant was unable to perform at least two ADLs.  But, despite statements by the two professionals that the applicant was unable to perform at least two ADLs for a 30-day period, the applicant was denied TSGLI because his medical records were insufficient.  Counsel adds that it is not the applicant’s responsibility to make sure that the attending doctor or nurse creates sufficient medical records.
3.  Counsel provided the following additional documentary evidence in support of the applicant’s request: 

	a.  Letter, dated 19 March 2007, from the U.S. Army Physical Disability Agency, Alexandria, VA, denying his TSGLI appeal;

	b.  Letter, dated 5 June 2008, from the applicant’s counsel to the Office of Servicemembers' Group Life Insurance, Roseland, NJ, requesting TSGLI benefits;

	c.  Letter, dated 16 July 2008, from the Office of Servicemembers' Group Life Insurance, Roseland, denying his TSGLI claim;

	d.  Letter, dated 21 July 2008, from the U.S. Army Human Resources Command (HRC), Alexandria, denying his TSGLI appeal;

	e.  Department of Veterans Affairs (DVA) orthopedic evaluation, dated 6 October 2006;
	
	f.  Pages 4-7 of the 9-page SGLV Form 8600 (Application for TSGLI Benefits), dated 2 May 2006; and

	g.  Letter, dated 20 may 2008, from Dr. Cxxxxxy.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army on 23 January 1995.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  He was honorably released from active duty (REFRAD) in the rank of specialist and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 29 May 1998.

2.  The applicant’s records also show he enlisted in the Wisconsin Army National Guard (WIARNG) on 29 May 1998.  He was awarded MOS 95B (Military Police) and was assigned to the 32nd Military Police Company, Milwaukee, Wisconsin.  He was promoted to sergeant on 10 March 2003.

3.  On 15 March 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 9 May 2003 to 25 May 2004.  He was honorably released from active duty to the control of his ARNG unit on 18 May 2005.  

4.  On 13 October 2003, while serving in Baghdad, the applicant was thrown to the ground when a car bomb exploded near him.  Subsequent to this blast, he had discomfort in his elbow, bilateral knee pain, and experienced some episodic testicular pain.  He was able to function; however, in April 2004, his duties became more physical and he began to experience more pain.  His injuries were determined to be in Line of Duty.

5.  On 29 July 2005, by memorandum, HRC-Alexandria notified the Joint Forces Headquarters, WIARNG, that the applicant declined to remain on active duty to complete his medical care under the MRP and had been REFRAD to the control of the WIARNG.

6.  On 3 October 2005, HRC-Alexandria, published Orders A-10-520496 ordering the applicant's retention on active duty, effective 19 August 2005, to participate in the Reserve Components Medical Holdover Medical Retention Processing (MRP) Program for completion of medical care and treatment.  He was ordered to report to Walter Reed Army Medical Center (WRAMC), Washington, DC.  Accordingly, the applicant entered active duty on 19 August 2005.

7.  On 17 May 2006, the applicant completed and submitted his application for TSGLI benefits.  He claimed OTI (Other Traumatic Injury) ADL loss (dressing, eating, and bathing) for 30 days due to right sub-muscular ulnar nerve transposition, right arm cellulitis, and bilateral testicular torsion. 

8.  On 28 June 2006, by letter, the applicant was notified that there was no evidence of ADL loss in the medical documentation he submitted.  Accordingly, his claim was denied.

9.  On 10 November 2006, the applicant requested reconsideration of his claim.  He again claimed OTI ADL loss (dressing, eating, and bathing) for 30 days due to right sub-muscular nerve transposition, right arm cellulitis, and bilateral testicular torsions. 

10.  On 30 November 2006, by letter, the applicant was notified that there was no evidence of ADL loss in the medical documentation he submitted and accordingly, his claim was denied.  Furthermore, the documentation shows that he was not medically evacuated subsequent to his injury until April 2004, some 6 months after the injury and that his cubital tunnel syndrome surgeries were performed in September 2004 and April 2005.

11.  On 19 March 2007, by letter, the U.S. Army Physical Disability Agency notified the applicant that based on the documentation he provided in support of his claim, the agency was unable to provide a favorable decision because the submitted medical documentation did not substantiate the duration and each ADL impacted.  He was also advised that documents that were helpful in supporting his case involving ADLs include, but were not limited to, nurse's notes, OT reports, and hospital discharge summary reports.

12.  On 5 June 2008, the applicant’s counsel submitted an appeal to the TSGLI representative at HRC-Alexandria, requesting the applicant be paid TSGLI benefits. 

13.  On 16 July 2008, the Office of Servicemembers' Group Life Insurance, Roseland, notified the applicant that an evaluation of his claim for TSGLI was completed; however, the medical documentation did not support his inability to carry out activities of daily living and his claim was accordingly denied.  He was also advised that documents that were helpful in supporting his case involving ADLs include, but were not limited to nurse's notes, OT reports, and hospital discharge summary reports.

14.  On 21 July 2008, by letter, HRC-Alexandria, notified the applicant that the medical documentation submitted with his claim did not substantiate that he was unable to independently perform two or more ADLs for more than 30 days.  Accordingly, his appeal was denied.  

15.  The applicant’s counsel submitted two statements in support of the applicant’s request as follows:

	a.  In a statement, dated 6 October 2006, DVA Nurse Rxxn stated that the applicant had been a patient at the orthopedic clinic from May 2004 through September 2005.  He was diagnosed with cubital tunnel syndrome of both the right and left ulnar nerves and was subsequently scheduled for surgery for each. He had a right ulnar nerve transposition on 27 September 2004 and subsequently had a left ulnar nerve transposition on 20 April 2005.  After the first surgery, his right arm was in splints for 6-8 weeks post-operation after which he was allowed to start progressive physical therapy that continued until 27 January 2005.  Nurse Rxxn adds that the applicant developed an ulnar nerve palsy and followed the same course of post operation treatment as with the right with plan for progressive therapy after the left arm had been in various splints for 4-6 weeks but was unable to progress well in therapy d/t [abbreviation unknown] the palsy with limited motor and sensory function to his hand distally.  On 22 August 2005, the applicant underwent an exploration and release of the ulnar nerve left arm to see if any damage had occurred or if the nerve had become entrapped.  His post-operation course of action was the same with recommendation for splints and no use of the left arm for 4 weeks to be followed by several weeks of progressive range of motion (ROM) and then strengthening of his left arm.  
	b.  In a statement, dated 20 May 2008, Dr. Cxxxxxy stated that he completed three certifications of Traumatic Injury Protection for the applicant on
27 December 2005 and that the applicant was unable to perform certain ADLs following three surgeries, each of which was performed due to injuries sustained while in Iraq.  Specifically, the applicant was unable to:

		(1)  Independently dress or bathe for 30 days following a right submuscular ulnar nerve transposition surgery performed on 27 September 2004; 

		(2)  Independently dress, bathe, or eat for 30 days following a left anterior submuscular ch ulnar nerve transfer surgery performed on 20 April 2005, complicated by right arm cellulitis; and 

		(3)  Independently dress or bathe for 30 days following a repeat left ulnar nerve transposition surgery performed on 23 August 2005.

Dr. Cxxxxxy added that Nurse Rxxn’s letter provides specific details and that he concurs with the nurse’s assessment.  

16.  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 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. 


17.  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 hemiplegic;

	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 will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

18.  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 applicant contends that his TSGLI claim should be paid.

2.  The evidence provided by the applicant was carefully considered; however, it does not show that he was unable to perform his ADLs for 30 or more days.  By law, 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.  The applicant in this case did not provide substantiating evidence to support a contention that he depended on someone else to assist him for 30 days or more in the performance of his ADLs.

3.  The applicant has not provided sufficient documentation to support his implied 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.  The individual is considered to need assistance only if he or she requires physical (hands-on), stand-by (within arm’s reach), or verbal (must be instructed because of cognitive impairment) assistance, without which they would be incapable of performing the activity.

4.  For ADL loss from OTI to be covered, the loss must be must be for at least 30 days, the member must require assistance to perform two of six ADLs, the ADL loss must be certified by a healthcare provider and must be substantiated by appropriate documentation such as Occupational Therapy (OT)/Physical Therapy (PT) reports, discharge summaries and other medical documentation.  In the applicant's case, the submitted documentation indicated that records of his ulnar and reparative surgeries did not sufficiently justify a claim of loss of ADLs.

5.  TSGLI analysts strive to apply a "reasonable person" standard to each claim with a bias in favor of the claimant while still maintaining a high degree of internal consistency among similar claims.  The applicant's injury pattern, an isolated, uncomplicated single limb injury in an otherwise uninjured Soldier, is generally insufficient justification for payment of TSGLI benefits.  It is a reasonable expectation that a Soldier is capable of adopting within 30 days of injury, adaptive behaviors to accomplish all ADLs in coping with a single limb injury. 

6.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.



BOARD VOTE:

________  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the majority of the Board determined during their review that relief was previously denied because of a lack of evidence to support the applicant’s claim.  The applicant now presents such evidence from the doctor treating him at the time in question and from the attending nurse which indicates the applicant was unable to personally perform ADLs for 30 days.  Since TSGLI claims may be filed if a claimant is unable to perform 2 of 6 ADLs for 30 days or more, the records support granting the relief requested.

2.  Advisory opinions from physicians who were not “there” or in attendance on the applicant at the time are judged as having little basis upon which to deny relief given the attending physician’s and nurse’s statements conclusively show otherwise.

3.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the individual’s TSGLI claim was approved on 19 March 2007 and that he be paid all monies due as a result of this correction. 



															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)                                         AR20080016438



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ABCMR Record of Proceedings (cont)                                         AR20080016438



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