IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090012783 


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 the balance of his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim in the sum of $100,000.

2.  The applicant states he met all requirements to receive $100,000 in TSGLI benefits.

3.  The applicant provides additional documentary evidence through counsel

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests payment to the applicant of the balance of his TSGLI proceeds in the sum of $100,000.

2.  Counsel states that the applicant, now discharged, met the standards of inability to perform at least 2 of the Activities of Daily Living (ADLs) for over 120 days.  His injury was a covered traumatic event.  The Procedural Guide was changed after his claim was initiated.  In the latest version, when a member is unable to perform 2 out of 6 ADLs due to traumatic injury other than traumatic brain injury, TSGLI will be paid based on the number of consecutive days that the member is unable to perform ADLs.  The applicant was unable to perform 3 ADLs for a total of 163 consecutive days.  Furthermore, according to the 2008 one-year review of this program, the TSGLI Claims Office should depend heavily on the certification and should limit additional medical documentation.  As per the certification by Dr. B***, though not attached to this brief, treatment records ranging from the time of the accident until the applicant was discharged and the medical review board summary, additional evidence was not necessary.  Additionally, TSGLI is an insurance program with premiums deducted monthly.  As such, any ambiguity should be ruled in favor of the policyholder. 

3.  Counsel provides a copy of the applicant's Medical Evaluation Board (MEBD) Narrative Summary (NARSUM), dated 24 May 2006; a copy of his Medical Board Consultation, dated 26 January 2006; a copy of his MEBD Consultation, dated 26 April 2006; a copy of his separation orders, dated 12 July 2006; a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 16 June 2006; a copy of his operative report, dated 9 June 2005; a copy of his TSGLI Claim, dated 23 April 2008; a copy of a printout  from the U.S. Army Human Resources Command (USAHRC) website regarding TSGLI Reconsideration and Appeals Process; a copy of counsel's letter, dated 15 January 2009, to the U.S. Army Physical Disability Agency (USAPDA); a copy a news article, dated 19 December 2008, regarding updated TSGLI information; a copy of an undated counsel's letter to the Claims Manager, TSGLI Office, Alexandria, VA; a copy of page 20 of the TSGLI Procedure Guide; and a copy of pages 37 and 38 of TSGLI Protection Year-One Review, in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army for a period of 3 years on 22 October 2003 and held military occupational specialty 63B (Wheeled Vehicle Mechanic).  He also executed a 5-year reenlistment on 22 September 2005 and attained the rank/grade of specialist (SPC)/E-4. 

2.  His records also show he served in Kuwait from 5 March 2005 to 28 March 2005.  He was assigned to the 3rd Armored Cavalry Regiment.

3.  On 19 March 2005, he was involved in a motor vehicle accident when the vehicle he was riding in was hit by a dump truck.  He injured his right foot, back, and right ear.  He was initially treated in Kuwait and was later medically evacuated to Germany where he remained for 5 days.  He was diagnosed with a fracture of the second and third metatarsals of the right foot.  His foot was casted and he was returned to Fort Carson, CO, for further evaluation and treatment.

4.  He was seen at a podiatry clinic where a scan of the lower extremity indicated multiple tarsal fractures but no disruption or fractures of the ankles.  He then had a splint applied and he was sent home on 30 days of convalescent leave.  He remained home and indicated he had no specific problems other than his right foot pain.  Repeat x-rays showed healing of the second metatarsal fracture.  

5.  On 9 June 2005, he underwent surgery for arthrodesis of first, second, and third metatarsal joints.  The diagnosis was a dislocation of fracture, medial aspect of his right foot joint.  Following surgery, he was casted for one month and then wore a walking boot for 3 more months after that.  He was again put on convalescent leave and his boots were removed in September 2005.  He noticed improvement but his overall strength did not improve, and he was then treated with medications. 

6.  On 26 January 2006, he complained of pain and stiffness across the top of his right foot.  He subsequently underwent a physical examination on 30 January 2006 and he was diagnosed with chronic right foot pain/traumatic arthritis (status post mid foot fractures and surgery/open reduction internal fixation) and he failed to meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  He was recommended for entry into the Army's Physical Disability Evaluation System).  

7.  On 26 April 2006, an MEBD psychiatric consultation indicated that he was competent to manage his own affairs and finances but did not meet physical standards for retention.  

8.  On 16 June 2006, an informal PEB convened at Fort Lewis, WA, and found his condition prevented him from performing his duties and determined that he was physically unfit due to chronic right foot pain and stiffness.  The PEB also considered his other conditions but found them to be not unfitting and therefore not ratable.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and was granted a 20 percent disability rating for code 5284.  The PEB recommended he be separated with severance pay, if otherwise qualified.  He concurred and waived his right to a formal hearing of his case.

9.  He was honorably discharged on 17 July 2006 in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 years, 8 months, and 26 days of creditable active service.

10.  His applications for TSGLI benefits and the specific ADLs he claimed are not available for review with this case; however, electronic data maintained at the TSGLI Office, USAHRC-Alexandria indicates the following:

	a.  He submitted a claim on 5 May 2006 wherein he claimed OTI (Other Traumatic Injury) ADL loss (dressing, bathing, and transferring) for 120 consecutive days due to multiple fractures of his foot.  The medical documentation did not support the physician's certification and the claim was denied.  A letter, dated 13 June 2006, was mailed to him informing him of the denial.

	b.  He submitted a request for reconsideration on 5 July 2006 again claiming OTI ADL loss (dressing, bathing, and transferring) for 120 consecutive days due to multiple fractures of his foot.  This claim was denied due to insufficient medical documentation to support loss of ADLs.  Available medical documentation at the time showed that he was informed not to put weight on his foot.  A letter, dated 5 August 2006, was mailed to him informing him of the denial.

	c.  He filed an appeal of his TSGLI claim on 25 September 2006 and claimed OTI ADL loss (dressing, bathing, and transferring) for 60 consecutive days due to fractures and dislocation of the right foot.  Available medical documentation did not support physician certification.  The medical documentation with his previous application indicated that he was treated at the podiatry clinic as an outpatient on 31 March 2005, and he was released without limitations.  A letter, dated 12 May 2008, was mailed to him informing him of the denial.

	d.  He filed a second appeal of his TSGLI claim on 10 November 2006, this one through counsel.   He claimed OTI ADL loss due to multiple fractures of his foot.  His claim was re-reviewed and it was determined that his injury was a single limb injury and the medical documentation did not support loss of ADLs.  A letter, also dated 12 May 2008, was mailed to him informing him of the denial.

11.  He and his counsel submitted the following documents:

	a.  A TSGLI claim, dated 23 April 2008, claiming OTI ADL loss (bathing, dressing, and transferring) from 22 March 2005 to 15 August 2006 due to his foot injury and dislocation.  The medical professional commented that the applicant was diagnosed with traumatic injury to the right foot with comminuted fracture and his joint dislocation.  A decision was made to keep him non-weight bearing with posterior splint and cast until bone consolidation and then stabilize metatarsal joint.  Surgery was performed on 9 June 2005 and he continued non-weight bearing for 60 days after surgery.  During the post injury rehabilitation and post-operation recovery, he was dependent on his spouse for several elements of ADL including dressing, bathing, and transferring. 

	b.  A copy of a letter from USAHRC-Alexandria informing him that there had been 4 previously submitted and adjudicated claims and that the fifth review was a relook which was also denied based on the new guidelines. 

	c.  A copy of an internet printout, dated 14 July 2009, describing the reconsideration and appeals process.  

	d.  A copy of a letter, dated 15 January 2009, from counsel to the USAPDA inquiring about his submission of a request for reconsideration on behalf of the applicant.

	e.  A copy of an internet printout, dated 19 December 2009, regarding updated TSGLI information.

12.  Public Law 109-13, signed by the President on May 11, 2005, established the 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 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 or the location in which they incurred the injury will be covered by TSGLI. 

13.  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 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:

* Total and permanent loss of sight in one or both eyes.
* Loss of hand or foot by severance at or above the wrist or ankle.
* Total and permanent loss of hearing in one or both ears.
* Loss of speech.
* Loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints.
* Quadriplegia, paraplegia or hemiplegic.
* Third (3rd) degree or worse burns covering 30 percent of body or 30 percent of the face.
* Coma or traumatic brain injury.
* 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.  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.  

14.  As the original program was being implemented, the Department of Veterans Affairs (DVA) announced it would initiate a Year One Review of TSGLI.  This review would be undertaken to assure that the TSGLI program was meeting its intended purpose, that all appropriate conditions were being covered, and that the program was operating efficiently and effectively.  The DVA wanted to ensure that the TSGLI program was fulfilling its mission to provide short-term financial assistance to severely-injured service members and their families and to improve the administration of the program.  The DVA, in cooperation with the Department of Defense (DOD) undertook a complete evaluation of the losses covered by the TSGLI program as well as the definitions of eligibility.  They met with and requested information from a variety of medical experts, performed independent research, made site visits to medical treatment facilities, had discussions with advocacy groups and case managers, received input from the claims processors in the branches of service, and conducted a comprehensive analysis of over 200 completed cases.  Since TSGLI was broadly modeled after Accidental Death and Dismemberment (AD&D) benefits in the commercial insurance industry, DVA also examined industry trends relating to AD&D benefits over the last two years.

	a.  The TSGLI legislation mandated coverage of certain specific losses: the total and permanent loss of sight, speech or hearing, amputation of hand or foot, loss of thumb and index finger, quadriplegia, paraplegia, or hemiplegia, burns, coma, or the inability to carry out the activities of daily living resulting from traumatic injury to the brain.  The legislation also authorized the Secretary of Veterans Affairs, in collaboration with the Secretary of Defense, to prescribe additional losses.  Selected program design changes were made part of the TSGLI regulation changes, which became effective on November 26, 2008.

	b.  the DVA published regulations implementing the program changes effective 26 November 2008.  All new and revised losses are retroactive to the earliest eligibility date of the TSGLI program, 7 October 2001.  If the service member or veteran previously filed a claim, their branch of service TSGLI office will determine their eligibility for any new TSGLI benefits based on the program changes.  Based on guidance provided by DVA, the branch of service TSGLI offices will automatically reconsider all previously-denied claims and all claims in which less than $100,000 has been paid to determine if new benefits under the revised program provisions are payable.  If service members or veterans are determined eligible for a benefit, they will be contacted to confirm their current address and banking information without any action on their part.

15.  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 foot injury.

2.  TSGLI is an insurance program that is bundled with the SGLI.  TSGLI helps traumatically injured Soldiers and their families get through times of need with a one-time payment.  It provides 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 based on the injury.

3.  The evidence of record shows he was involved in a vehicle accident in Kuwait and suffered a foot injury in March 2005 and subsequently underwent treatment and/or surgery to repair his injured foot.  He applied for TSGLI benefits but he was denied due to insufficient medical evidence that showed he was completely dependent on another person for completion of ADLs.  His application was adjudicated on four separate occasions and it was denied.

4.  By law, TSGLI claims may be filed for loss of ADLs if the member is completely dependent on someone else to perform 2 of the 6 ADLs for 30 days or more.  The applicant in this case had a single limb, non-complicated injury that did not stop him from performing the ADLs he claimed he could not do.  He 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.

5.  Neither the available records nor the medical documentation he 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.

6.  TSGLI analysts strive to apply a "reasonable person" standard to each claim with a bias in favor of the Soldier 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. 

7.  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.  He and his counsel did not submit evidence that would satisfy that requirement.  In view of the foregoing, there is no basis for granting him relief 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)                                         AR20090012783



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ABCMR Record of Proceedings (cont)                                         AR20090012783



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