IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100014472 


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 suffered a closed spiral fracture of the tibia and fibula of his right leg after he jumped from a transport truck in full rucksack kit while in Iraq.  He was hospitalized as an inpatient for 14 days and received open reduction internal fixation (ORIF) surgery.  After he was discharged from the hospital, he was instructed not to bear any weight on his leg and had to keep it elevated, dry, and clean to protect the wound from infection or tearing.  He required assistance from his girlfriend for bathing and dressing for 30 days.  His TSGLI claim was denied due to lack of medical documentation despite submitting his inpatient, outpatient, physical therapy, and occupational therapy medical records as well as two supporting letters, one of which was from his orthopedic surgeon who performed the surgery and the other from his girlfriend who provided the assistance.  

3.  The applicant provides the following additional documentary evidence:

* A copy of his TSGLI application and the denial letter from the U.S. Army Human Resources Command, Alexandria, VA (HRC-ALX)
* Two letters from a Wounded Warrior Advocate
* Letters from his surgeon, his girlfriend, and his case manager
* Various chronological records of medical care between 23 May and 5 August 2009
CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army on 27 June 1994 and held military occupational specialty (MOS) 93C (Air Traffic Control Operator).  He served through multiple extensions or reenlistments, was trained in and held MOS 18E (Special Forces Communications Sergeant).  He attained the rank/grade of sergeant first class (SFC)/E-7.  

2.  His records also show he served in Kuwait/Iraq from 21 November 2003 to 1 April 2004, 15 May to 1 December 2004, 15 June 2005 to 30 January 2006,
23 October 2007 to 1 May 2008, and 5 January to 27 May 2009.

3.  On 23 May 2009, he suffered a closed spiral fracture of the tibia and fibula of the right leg after jumping from a transport truck.  He was sedated for closed reduction procedure and cast splinting in Tikrit, Iraq.  He remained in an inpatient status and was transported to Balad, Iraq and from there he was evacuated to Landstuhl Army Medical Center (LAMC), Germany, on 28 May 2009.  Ultimately he was transported to Blanchfield Army Community Hospital (BACH), Fort Campbell, KY, on 30 May 2009.

4.  The chronological records of medical care he submitted show the following entries between 23 May and 5 August 2009:

* On 23 May 2009, Iraq, he arrived at the 47th Combat Support Hospital with closed fracture of tibia with fibula; he was sedated and underwent reduction and splinting
* On 24 May 2009, Iraq, he was placed in an intensive care unit in preparation for evacuation to LAMC, Germany
* On 28 May 2009, at LAMC, Germany, he underwent a concussion screen
* On 31 May 2009, at BACH, Fort Campbell, he was admitted in an inpatient status.  He underwent an orthopedic examination and was recommended for surgery
* On 1 June 2009, he indicated his pain was controlled by the use of medications.  He reported he had a girlfriend at home who would help him with ADLs
* On 2 June 2009, he underwent ORIF surgery
* On 3 and 4 June 2009, doctors discussed crutches, medications, side effects, and overall progress
* On 5 June 2009, he was educated on using crutches specifically for stairs; he was discharged from inpatient status and assigned to the Warrior Transition Unit on 12 June 2009, follow-up in an outpatient status
* On 15 June 2009, follow-up and released with work/duty limitations
* On 18 June 2009, he reported overall improvement in pain control and decreased narcotics requirement.  His surgical incision was well-healed and his range of motion had improved
* On 29 June 2009, the Physical Therapy Clinic, BAMC, indicates he had severely limited function secondary to toe touch weight bearing status for 8 to 12 weeks
* On 6 July 2009, progressing well, compensating well with ADLs, frustrated with inability to weight-bear
* On 27 and 28 July 2009, follow-up and examination of surgery incision
* On 29 July, he started light non-weight bearing exercises at physical therapy
* On 3, 4, and 5 August 2009, follow-up and examination

5.  On 6 August 2009, the applicant completed and submitted his application for TSGLI benefits.  He claimed Other Traumatic Injury (OTI) ADL loss for 30 days due to his spiral fracture of the tibia and fibula of his lower right leg.  The attending physician indicated amputation of the leg was not a consideration; however, the applicant's case represented a significant injury which could result in a life-long morbidity.  The physician thus indicated the applicant suffered a limb salvage (a series of operations designed to save an arm or a leg rather than amputation).  The applicant claimed ADL loss due to his inability to:

* Bathe independently (needed physical and standby assistance)
* Dress independently (needed physical assistance - help put on pants, socks, and shoes)
* Eat independently (needed physical and standby assistance - prepared meals, obtain beverages, and feed self)
* Toilet independently (needed physical and standby assistance - urinal and bed-pan, and later transfer to and from bathroom)
* Transfer independently (needed physical and standby assistance - getting in and out of bed, chair, and positioning of leg)

6.  On 24 September 2009, subsequent to a review by a TSGLI physician, by letter the applicant was notified that there was no evidence of ADL loss in the medical documentation he submitted.  The physician stated there was a reasonable expectation that a Soldier is capable of adopting, within 30 days of injury, adaptive behavior to accomplish his ADLs.  He also indicated there was no evidence the applicant's limb was ever in jeopardy or that amputation was offered to him in lieu of other treatment.  The medical documentation he submitted did not support ADL loss for 30 days or limb salvage.  Accordingly, his claim was denied.

7.  On 11 November 2009, the applicant requested reconsideration of his claim.  He again claimed OTI ADL loss (bathing, dressing, eating, toileting, and transferring) for 30 days due to limb salvage.  He submitted letters from the Wounded Warrior Advocate and a physician but no new medical documentation. 

8.  On 24 November 2009, by letter, the applicant was notified medical documentation did not support ADL loss for 30 days or limb salvage and accordingly, his claim was denied.  

9.  On 28 January 2010, he submitted a second appeal, again claiming ADL loss and limb salvage.  His claim was reviewed by a physician who stated the same thing as the first claim notes.  Accordingly, on 2 February 2010, by letter, the applicant was notified medical documentation did not support ADL loss for 30 days or limb salvage and his claim was denied.

10.  The applicant submitted the following documents:

	a.  Three letters, dated 2 September, 5 November, and 1 December 2009, from S---- H-----, Wounded Warrior Advocate, who in her first letter provides a timeline of events from date of the injury and in two other letters states the applicant is not asking for limb salvage to be considered but rather the loss of ADLs which started on the date of his injury on 23 May and ended on 21 June 2009 (although the surgeon indicated the ending date as 30 June 2009 which is beyond the 30 day timeframe).  She added that in addition to his 30 days of ADL loss, he had a 14-day inpatient hospitalization from 23 May to 5 June 2009, which was one day short of the automatically qualifying 15-day inpatient hospitalization.  

	b.  A letter, dated 27 October 2009, from Dr. K---, the surgeon who performed the applicant's ORIF surgery on 2 June 2009 indicates the applicant was in an inpatient status from 23 May through 5 June 2009, and that during this time he underwent ORIF surgery.  He was discharged on 5 June 2009 with a splint and he was instructed to keep his leg elevated and not bear any weight on affected extremity.  He was also instructed to keep the wound clean, dry, and intact to prevent infection.  These restrictions required him to have assistance with bathing (to keep sutures dry) and dressing (to prevent suture tear) for 30 days.  He received assistance from his girlfriend.  He had an appointment on 12 June 2009 for suture removal.  He had significant edema of foot and toes and he was placed in splint for continued edema.  He continued to need assistance for bathing and dressing.  He was unable to start physical therapy due to the need to remain non-weight bearing.  Finally, a follow-up appointment on 29 June 2009 determined he had severe functional limitations secondary to toe touch bearing status for 8 to 12 weeks.  The surgeon recommended that the applicant be approved for 30 days of ADL loss from 23 May to 21 June 2009.

	c.  A letter, dated 29 October 2009, from the applicant's girlfriend who stated she cared for the applicant in his two-level apartment and provided him assistance bathing, dressing, cooking, cleaning, taking care of laundry, and even getting him something to drink. 

11.  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. 

12.  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
13.  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 (VA) 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 VA 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 VA, in cooperation with the 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, the VA also examined industry trends relating to AD&D benefits over the last 2 years.  

15.  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 ADLs resulting from traumatic injury to the brain.  The legislation also authorized the Secretary of the VA, 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 26 November 26 2008.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his TSGLI claim should be paid.

2.  By law, for ADL loss from OTI to be covered, the loss 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/physical therapy reports, discharge summaries and other medical documentation.

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.  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. 

5.  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)                                         AR20100014472



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ABCMR Record of Proceedings (cont)                                         AR20100014472



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