IN THE CASE OF:	 

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080019767 


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 payment of a Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim for loss of activities of daily living (ADL) which occurred subsequent to his knee surgery, beginning on 14 February 2008 and ending on 28 April 2008.

2.  The applicant states that he sustained an injury to his right knee while on annual training in June 2006.  He again reinjured his knee during physical training (PT) while attending the Warrior Leadership Course (WLC).  On 17 January 2007, he twisted and fell in the barracks resulting in a lower back injury, a cervical injury, and a re-injury to his right knee.  He was initially diagnosed with a lumbar strain and a right knee strain.  However, upon seeking care from a civilian provider, it was discovered that he sustained a spine fracture and ultimately had multi-level spinal fusion on 6 August 2007.  He applied for and received the maximum TSGLI benefits for his spine injury.  However, he was denied TSGLI benefits for the knee injury which existed well prior to and separate from the 17 January 2007 injury.  The injuries he suffered led to his inability to function independently of help from his spouse and children for a period of at least 6 weeks from the date his surgery occurred.  The TSGLI claim was denied based on an error and improper application of procedure.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  Statement, dated 10 December 2008, from the applicant’s wife.

	b.  Letters, dated 21 July and 23 September 2008, from the TSGLI Office of the U.S. Army Human Resources Command (HRC), Alexandria, VA.

	c.  Letters, dated 16 September 2008 and 2 November 2007, from the TSGLI Office, Roseland, NJ.

	d.  Letter, dated 29 September 2008, from the applicant’s former counsel.

	e.  Various emails from several individuals regarding the applicant’s TSGLI with miscellaneous dates.

	f.  Letter, dated 24 July 2008, written by the applicant to the TSGLI Office, HRC-Alexandria, VA.

	g.  Applicant’s radiological examination reports, dated 5 July 2007, and 30 January 2007.

	h.  Applicant’s chronological record of medical care, dated 16 January 2007.

	i.  Applicant’s consultation sheet, dated 16 January 2006.

	j.  Letter, dated 24 June 2008, from the applicant’s orthopedic surgeon to the Office of TSGLI, HRC-Alexandria, VA.

	k.  Letter, dated 4 December 2008, from the Social Security and Veteran’s Disability Law Center to the Office of TSGLI, HRC-Alexandria, VA.

	l.  Internet printout, dated 10 December 2008, summary of the TSGLI Protection Program.

	m.  A portion of his SGLV Form 8600 (Application for TSGLI Benefits), dated 12 November 2007.

	n.  A portion of his SGLV Form 8600, dated 9 April 2008.

	o.  U.S. Navy policy guidance for implementing traumatic injury protection under TSGLI.

	p.  A HRC-Alexandria, VA, news release, dated 1 December 2008.

4.  On 5 February 2009, the applicant submitted the following additional documentary evidence in support of his request:
	a.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 January 2007. 

	b.  Three DA Forms 2823 (Sworn Statements), dated 17 January 2007.

	c.  Miscellaneous medical documents (treatment and/or visit records, reports, examinations, etc.) from military and civilian providers with miscellaneous dates in 2007.

	d.  SGLV Form 8600, dated 16 June 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army for a period of 3 years on 18 December 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  He was released from active duty for entry level status performance and conduct on 31 December 1985.  

2.  After a break in service, the applicant enlisted in the Minnesota Army National Guard (MNARNG) for a period of 6 years on 19 February 1992.  He was subsequently assigned to the 1st Battalion, 194th Cavalry, Little Falls, MN.  He was discharged from the MNARNG as an unsatisfactory participant and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 29 March 1993.

3.  After a second break in service and with an approved enlistment waiver, the applicant enlisted again in the MNARNG for a period of 3 years on 28 February 1998.  However, he was discharged on 27 February 2001.

4.  The applicant’s records also show he enlisted in the MNARNG for a period of 3 years on 27 February 2002.  He was subsequently assigned to the 2nd Battalion, 135th Infantry, West St. Paul, MN.  However, he was again discharged from the MNARNG for non-retention and transferred to the USAR Control Group (Reinforcement) on 31 August 2002.  He was subsequently discharged from the USAR on 7 April 2004.

5.  On 10 January 2006, the applicant was again granted a separation disqualification enlistment waiver to enter the MNARNG.

6.  On 15 January 2006, the applicant completed a DD Form 2807-1 (Report of Medical History) at the Minneapolis Military Entrance Processing Station (MEPS) for the purpose of enlistment in the MNARNG and indicated that he had a debridement to his left knee on 22 December 2005 and left elbow on 9 January 2006.  He subsequently underwent a physical examination at the MEPS.  The MEPS chief medical officer (CMO) noted that the applicant had “surgery scar to his left knee” and “stapled wounds to his left elbow.”  He also noted that the applicant suffered from orthopedic problems with his left knee and left elbow.

7.  On 18 January 2006, an orthopedic surgeon, TRIA Orthopedic Center, Bloomington, MN, certified that he treated the applicant’s left elbow when he (the applicant) underwent surgery on 9 January 2006 and that “after 20 January 2006, the applicant would have no restrictions relating to his military service where his elbow is concerned.” 

8.  On 23 January 2006, the applicant executed a 1-year enlistment in the MNARNG.  He was subsequently assigned to the 147th Personnel Service Battalion, Roseville, MN, and was awarded an interim promotion to sergeant (SGT) in MOS 92Y (Supply Specialist) on 8 January 2007.

9.  On 19 October 2006, the applicant was ordered to active duty as a member of his Reserve unit for a period of 602 days in support of Operation Enduring Freedom, effective 2 November 2006.  He was ordered to report to his home station on 30 October 2006 and the mobilization station at Camp Atterbury, Indiana, on 2 November 2006.  He entered active duty on an unknown date. 

10.  On 4 December 2006, while enrolled in the Warrior Leadership Course (WLC), the applicant injured his right knee during PT and was initially diagnosed with a knee sprain with possible internal derangement and was prescribed medications. 

11.  On 17 January 2007, the applicant knee gave out while walking in the barracks.  He slipped and fell to the ground while clutching his knee.  In a preliminary diagnosis, the mobilization site medical director indicated that the applicant had previously injured his right knee in December 2006 and he also reinjured his knee the week before.  He also added that the magnetic resonance imaging (MRI) revealed no ligamentous tear, but osteochondral defect and degenerative changes.

12.  The applicant was also treated at Johnson Memorial Hospital, Franklin, IN, where the attending physician diagnosed him with lumbar strain and right knee pain.   He was prescribed pain medications and ordered to use crutches pending the result of another MRI.


13.  On 19 January 2007, the applicant complained of persistent pain in his right knee.  He underwent a standard MRI of his right knee at Camp Atterbury Clinic, Indiana.  The attending physician indicated that there was a 1 centimeter osteochondral defect in the weight-bearing portion of medial femoral condoyle, but no visualized medial meniscus injury.  Additionally, there was a cartilage irregularity in the anterior portion of the lateral femoral condoyle and within the trochlea.  The physician also indicated that all these findings were consistent with degenerative disease of the knee.  

14.  On 9 March 2007, the HRC-Alexandria, VA, published Orders A-03-705496 retaining the applicant on active duty for a period of 5 months and 26 days for voluntary participation in the Reserve Component Medical Holdover Medical Retention Processing (MRP) program for completion of medical care and treatment.  He was assigned to the Medical Retention Unit at Fort Knox, Kentucky, effective 9 March 2007.  

15.  On 9 July 2007, HRC-Alexandria, VA published Orders A-03-705496R rescinding the unexecuted portion of the applicant’s active duty orders effective 21 July 2007 and published Orders A-0715405 ordering the applicant retained on active duty for a period of 1 month and 13 days to voluntarily participate in the Reserve Component Medical Holdover MRP program for completion of medical care and treatment.  He was assigned to the Medical Retention Unit at Fort Knox, Kentucky, with duty in Minneapolis, MN, effective 22 July 2007, under the Community Based Health Care Organization (CBHCO) program.

16.  The CBHCO was created to assist National Guard and Reserve service members injured in the line of duty to return to their homes where they will continue to receive care locally while they are evaluated for return to duty, medical release or medical board.

17.  While in the CBHCO program in Minneapolis, the applicant sought care from a civilian spine surgeon and was diagnosed as having a spine fracture along with multiple herniated discs.  He subsequently had multi-level spinal fusion on 6 August 2007.

18.  On 25 July 2007, the applicant’s 1 month and 13 days period of active duty was amended to show 7 months and 8 days of active duty, terminating on 29 February 2008, and on 2 July 2008, his orders were amended again to show 581 days of active duty, terminating on 21 February 2009.  




19.  On 9 October 2007, the applicant completed and submitted his application for TSGLI benefits.  He claimed OTI (Other Traumatic Injury) ADL loss (toilet and transfer) due to back surgery that resulted from slipping and falling in the barracks.  

20.  On 2 November 2007, by letter, the Office of TSGLI, Roseland, NJ, denied the applicant’s claim for TSGLI for his back injury because the medical documentation did not support that he incurred a covered loss. 

21.  On 19 November 2007, the applicant submitted a request for reconsideration of his TSGLI back/spine claim with a letter from his surgeon and a statement from his CBHCO case manager.  His claim was subsequently approved for 90 days and on 4 December 2007, he was paid the amount of $75,000.00 for three months of ADL loss.

22.  On 18 December 2007, the applicant filed a second claim for OTI ADL loss (bathing, dressing, toileting, and transferring) for a period of 120 day due to back surgery that resulted from slipping and falling.  His claim for additional benefit was subsequently approved for 120 days and he was accordingly paid an additional $25,000.00 on 10 January 2008.

23.  On 13 May 2008, the applicant submitted a new TSGLI claim for OTI ADLs (bathing, transferring, and dressing) for 74 days (14 February 2008 through 28 April 2008) and for toileting for 44 days, due to his knee injury that occurred during PT.  

24.  On or around 18 June 2008, by letter, the applicant was notified that his claim was denied.

25.  On 27 June 2008, the applicant submitted a request for reconsideration of his claim for TSGLI for OTI ADLs (bathing, transferring, and dressing) for 74 days and toileting for 44 days. 

26.  On 21 July 2008, by letter, HRC-Alexandria notified the applicant that his request for TSGLI benefits was denied because the medical documentation he submitted in support of his claim did not support that he suffered a qualifying traumatic event and that, per the Department of Veterans Administration (DVA) program guidance, a qualifying traumatic event is defined as being caused by external force or violence and that getting injured during PT does not qualify as a traumatic event.

27.  On 25 July 2008, the applicant appealed the decision regarding TSGLI benefits for his knee injury.  He again claimed loss of OTI ADLs for 74 days (bathing, transferring, and dressing) and 44 days for toileting.

28.  On 16 September 2008, by letter, the Office of TSGLI, Roseland, NJ, notified the applicant that his claim was denied because his condition was not a direct result of a traumatic event.  This was followed by another letter, dated 23 September 2008, from HRC-Alexandria, notifying him that his appeal was denied because the medical documents submitted did not support that he suffered a qualifying traumatic event and that per DVA program guidance, a qualifying traumatic event is defined as caused by an external force or violence and that running does not qualify.

29.  In her statement, dated 10 December 2008, the applicant’s spouse restates a chronology of the applicant’s injuries and the difficulties he encountered in applying for and receiving TSGLI benefits.  Specifically, she raises the following points:

	a.  The standard for review of her husband’s claim should be straightforward. If the member suffered an injury, and if that injury is and of itself a qualifying loss, and if there was a qualifying loss as a result of that injury then the member clearly suffered a loss of ADL.  Nevertheless, these basic standards seem to be open to all sort of individual interpretations:  

	b.  It appears that officials within the Army are not reviewing the claims thoroughly and assume because the applicant had already been paid a claim for his spine injury, he should not be entitled to another claim.  There appears to be an inconsistency among the Services in processing times, interpretation of laws, and adjudication of TSGLI claims.

30.  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. 

31.  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.

	i.  or 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.  

32.  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 he should be paid for a TSGLI claim for loss of ADLs after his knee injury.

2.  TSGLI is an insurance program that is bundled with the SGLI.  An additional $1 has been added to the Soldier's SGLI premium to cover TSGLI.  TSGLI helps traumatically injured Soldiers and their families get through times of need with a one-time payment.  TSGLI provides valuable financial support to qualifying members and their families, helping them get through the tough financial times after suffering a severe injury.  Qualifying members receive a tax-free payment between $25,000 and $100,000 per traumatic event [emphasis added] based on the injury.

3.  The evidence of record shows that the applicant enlisted in the MNARNG on 23 January 2006.  He suffered an injury to his knee during PT on 4 December 2006.  On 17 January 2007, he then suffered a second injury when he slipped and fell in his barracks, this time to his back and again to his knee.  He subsequently underwent back/spine surgery as a result of his second injury and received the maximum TSGLI benefit as a result of ADL loss after his back surgery.  

4.  A qualifying traumatic injury is defined as a physical injury or a loss caused by the application of external force or violence or a condition whose cause can be directly linked to a traumatic event.  TSGLI is not meant to serve as an ongoing income replacement—it’s there to help Soldiers and their families through the tough times that occur as the result of a traumatic injury.  The following basic definitions provide greater clarification and help determine when an event is a covered under the TSGLI (found within the TSGLI Procedures Guide (Dec. 2008 version): 


	a.  Traumatic Event:  A traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body;

	b.  External Force:  External force means a force acting between the body and the environment, including a contact force, gravitational force, or environmental force, or one produced through accidental or violent means; 

	c.  Direct Result:  Direct result means there must be a clear connection between traumatic event and resulting loss; and 

	d.  Traumatic Injury:  A traumatic injury is the physical damage to your body that results from a traumatic event.

5.  In the applicant's case, his 4 December 2006 injury during PT is not in question; however, twisting a knee while running is not determined to fit the definition for a traumatic injury impacted by an external force as defined above.  Therefore, the PT incident is not considered as a traumatic event caused by an external force with the direct results being a qualifying loss.  The barracks fall on 17 January 2007 was not a new injury, but merely an aggravation of a previous non-qualifying injury.  However, in any event, the applicant was already compensated the maximum rate of $100,000.00 for the event (for his back).  He is not entitled to additional compensation under any circumstance.

6.  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.  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 this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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.




      _______ _   X_______   ___
               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)                                         AR20080019767



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ABCMR Record of Proceedings (cont)                                         AR20080019767



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