IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100009605 


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 her Traumatic Servicemember’s Group Life Insurance (TSGLI) coverage in the amount of $75,000.00.

2.  The applicant states that she met the requirements to receive the remaining $75,000.00 of her TSGLI insurance coverage and her request was unjustly denied.

3.  The applicant provides a brief and supporting documents from her counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board direct payment of the balance of the applicant’s TSGLI claim in the amount of $75,000.00.

2.  Counsel states, in effect, that the applicant was unjustly denied payment of the remainder of her TSGLI entitlement in the amount of $75,000.00 despite the fact that she met the requirements for such payment and provided sufficient medical documentation to show that she suffered a loss of Activities of Daily Living (ADL) beyond the required number of days.

3.  Counsel provides a brief of the applicant’s case along with 17 exhibits that are referenced in the brief.


CONSIDERATION OF EVIDENCE:

1.  On 27 June 2007, while serving in the rank/grade of sergeant (SGT)/E-5 as a mobilized North Carolina Army National Guard (NCARNG) Soldier at Camp Atterbury, IN, the applicant was the driver of a military vehicle that was hit by a car that ran a red light.  She was taken by ambulance to a local emergency department where she was evaluated and discharged the same day.  Over the course of several months she had several troop medical clinic (TMC) visits for neck, lumbar, right hip, and right knee pain.  She began to have headaches in March 2007 and in June 2007 she was placed on medical hold at Fort Knox, KY.

2.  On 10 August 2007, she underwent surgery (right open Mumford) to her right shoulder.  She was transferred to the control of the Community Based Health Care Organization (CBHCO) Program at Virginia Beach, VA on 25 September 2007.  On 5 March 2008, she again underwent surgery to her right shoulder and shortly thereafter began a physical therapy regimen.  On 26 March 2008, her physician indicated that her return to work status was “No use of right shoulder for 3 months and can go back anytime in sling of upper right extremity.”

3.  On 14 April 2008, the applicant filed her first claim for TSGLI benefits claiming the loss of ADLs due to her shoulder injury for 30 days.  Her claim was approved and she was paid $25,000.00 for 30 days of ADL loss.

4.  On 13 May 2008, the applicant filed a subsequent claim for ADL loss due to her shoulder injury and her claim was denied on 14 May 2008 because her documentation did not support ADL impairment for 60 days or more.

5.  The applicant submitted a request for reconsideration of her claim on 15 July 2008 and her request was again denied on 8 August 2008 for the same reasons as her May 2008 claim.

6.  On 31 March 2009 a Physical Evaluation Board (PEB) was convened in Washington, D.C. which determined that the applicant was physically unfit due to chronic Post Traumatic Stress Disorder (PTSD) (non-deployment related) and mood disorder (30%), Fibromyalgia (20%), chronic neck pain (20%), chronic lower back pain (20%), chronic right shoulder pain (10%), and greater trochanteric bursitis, right hip (10%).  The PEB recommended her placement on the Temporary Disability Retired List (TDRL) with a combined 70 percent (%) disability rating percentage.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of her case.  Accordingly, she was placed on the TDRL on 27 May 2009 with a 70% disability rating percentage.

7.  On 29 September 2009, her counsel filed an additional appeal in her behalf claiming loss of ADL due to her shoulder injury and submitted an SGLV 8600 (Application for TSGLI Benefits), dated 24 September 2009, which contained a certification from her orthopedic physician indicating that she was unable to dress independently, unable to toilet independently, and unable to transfer independently.  All of the applicant’s previous files were reviewed along with her current appeal by the in-house physician and his recommendation was there was no support for any additional compensation for claimed loss in the Soldier’s medical records.  Her injury pattern and treatment were not consistent with any additional claimed ADL loss.

8.  A review of the physical therapy notes provided by the applicant with her application shows that:

* On 8 May 2008, she reported that she experienced an acute increase of symptoms when turning her steering wheel with her surgical shoulder.
* On 12 May 2008 she reported that she returned to work that day without exacerbation of symptoms
* On 16 May 2008 she reported that she was doing well but her shoulder was sore after workouts
* On 23 May 2008 she reported that she was doing well and her pain levels have decreased slightly
* On 29 May 2008 she reported that she was doing good and she felt that she was gaining range of motion (ROM) and strength
* On 30 May 2008 she reported that she was doing well but her shoulder was still weak

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 $25,000.00 and $100,000.00 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 $1.00 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 Operation Iraqi Freedom (OIF) and Operation Enduring 


Freedom (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 she is entitled to the remainder of her TSGLI entitlement of $75,000.00 because she suffered a loss of ADLs for 60 days or more has been noted and appears to lack merit.

2.  Although the applicant’s physician completed an SGLV 8600, dated
24 September 2009, 16 months after her surgery, indicating she was unable to dress independently, unable to toilet independently, and unable to transfer independently, that certification contradicts the available evidence of record which indicates otherwise.

3.  Not only did the applicant’s physician indicate in March 2008 she could return to work anytime as long as she did not use her shoulder for 3 months and had it in a sling, her physical therapy progress notes indicate she was doing well in May 2008 and she was driving and had returned to work without exacerbation of symptoms.

4.  While it is not unreasonable that she would have experienced a loss of ADLs for a 30-day period following surgery, it is unreasonable that she would be experiencing a loss of ADLs much longer unless she experienced a set back or developed complications.  The applicant has provided no evidence to show such was the case and she has not provided sufficient evidence to support her contention that she suffered a loss of ADLs for 60 days or more.

5.  Accordingly, it appears that the applicant’s claim for additional TSGLI benefits was properly denied in accordance with the applicable guidelines and intent of the TSGLI Program and the applicant has failed to show through sufficient evidence a basis to reverse the decision of the officials who reviewed her case.

6.  Based on the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of her service in arms.



      __________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)                                         AR20100009605



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ABCMR Record of Proceedings (cont)                                         AR20100009605



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