IN THE CASE OF:	  

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090005408 


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, an appeal review of the denial of his Traumatic Servicemembers' Group Life Insurance (TSGLI) claim.

2.  The applicant states, in effect, the qualified scheduled loss in question is a carotid artery dissection, not a stroke, and was the result of a traumatic event and was not due to an illness, disease, or medical or surgical treatment of an illness or disease.

3.  The applicant's supporting documentation is identified in a cover letter provided by his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel, the applicant’s wife, requests a thorough review of the applicant's appeal letters and supporting documentation and if a satisfactory decision in his favor is not reached, the applicant is requesting a formal hearing before the Army Board for Correction of Military Records (ABCMR).

2.  Counsel states, in effect, the applicant is appealing the finding that he did not incur a qualifying scheduled loss as a result of a stroke.

3.  Counsel states that at this time it is apparent after continuing requests for a thorough review of the supporting medical documentation, the applicant's claim is just being given a cursory glance for any medical terminology that can be used to disqualify the claim.  She states this is the fifth request for reconsideration and review of his claim.  Counsel continues that all they have been receiving are blanket statements that her husband's loss was not a result of a qualifying traumatic event and now the misdiagnosis of her husband's qualifying event as a stroke.  She states that as has been pointed out in every appeal letter, the qualified scheduled loss in question is not a "stroke," it is rather a "carotid artery dissection" and was not the result of an illness or disease or from medical or surgical treatment of an illness or disease.

4.  Counsel provides a statement and the 17 enclosures identified in her cover letter, dated 23 March 2009, in support of the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of sergeant major.

2.  On 14 February 2008, the applicant lifted weights.  Later that day he developed a carotid artery dissection and was subsequently diagnosed with hemiplegia/stroke.

3.  On 13 March 2008, the applicant submitted a TSGLI claim for loss of activities of daily living (ADL) for dressing, toileting, transferring, and bathing for 30 days.

4.  On 24 March 2008, the Office of Servicemembers' Group Life Insurance informed the applicant that his TSGLI claim could not be approved as his condition was not a direct result of a traumatic event that involved external force or violence.

5.  On 18 April 2008, the applicant submitted a request for reconsideration of his TSGLI claim for loss of ADL for 30 days for dressing, toileting, transferring, and bathing.

6.  On 29 April 2008, the U.S. Army Physical Disability Agency disallowed his claim because the documentation provided as part of the TSGLI claim did not specifically address the definition of a traumatic event.

7.  On 20 May 2008, the applicant filed an appeal of his TSGLI claim of ADL for 30 days for dressing, toileting, transferring and bathing.

8.  On 13 June 2008, the U.S. Army Human Resources Command (HRC) TSGLI Division disallowed his appeal because the documentation provided as part of the TSGLI claim did not specifically address the definition of a traumatic event.

9.  On 22 July 2008, the HRC TSGLI Division again informed the applicant his appeal for TSGLI benefits could not be approved because TSGLI did not provide payment for a covered loss if the loss was due to an illness or disease, other than pyogenic infection (usually due to an infected wound), or an illness or disease caused by biological, chemical, or radiological weapons or accidental ingestion of a contaminated substance.

10.  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.  TSGLI provides between $25,000.00 and $100,000.00 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.

11.  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 $1.00 deducted 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 between 7 October 2001 and 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.

12.  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.  third degree or worse burns covering 30 percent of the 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 ADL, which are dressing, bathing, toileting, eating, continence, and transferring.  TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform two of the six ADL 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.

13.  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.

14.  Section IV of Army Regulation 15-185 provides guidance on hearings and disposition of applications and states, in pertinent part, that applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for consideration of his TSGLI appeals and all the supporting documentation submitted was carefully considered.  The applicant's claim was found to be without merit.

2.  The applicant suffered a devastating stroke secondary to dissection of the carotid artery.  It is not unreasonable to assume that forces generated by weightlifting contributed to the carotid injury.  However, there is no evidence the applicant sustained an injury from an external force.  The force, if any, on the carotid artery experienced during weightlifting was an internal force.  Because the injury was not caused by external force, it is not covered by TSGLI.

3.  The supporting documents provided by the applicant do not show he sustained a qualifying traumatic event.  One might theorize that the “grunt” (valsalva or increased intra-abdominal/thoracic pressure) of weightlifting could generate forces similar to severe vomiting or Heimlich maneuver (examples of events known to have caused carotid artery dissection).  However, such forces are internal.  Short of dropping the weights onto the neck, weightlifting would not qualify as an external force on the carotid artery.

4.  Therefore, purely as a matter of definition under TSGLI, he did not suffer a qualifying traumatic injury.  Unfortunately, there is no basis for this Board to substitute its judgment for that of the HRC TSGLI Division which determined the mechanism of the injury does not meet the TSGLI guidelines of a traumatic event and, as a result, the applicant did not incur a qualifying scheduled loss.

5.  Counsel also requests a formal hearing be held if relief is not recommended by the Board.  However, a personal appearance by the applicant would not change the circumstances surrounding the unfortunate events which led to his injury.  Therefore, it is concluded a formal hearing is not required to serve the interest of justice 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)                                         AR20090005408



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ABCMR Record of Proceedings (cont)                                         AR20090005408



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