IN THE CASE OF:	  

		BOARD DATE:	 10 November 2010 

		DOCKET NUMBER:  AR20100015353 


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 through his Member of Congress, 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 TSGLI authorities delayed the processing of his claim by processing it as a first event.  Once all the requested documentation was submitted, officials called him and told him time had elapsed and he no longer qualified.  

	a.  He injured his back in a truck accident in Iraq in May/June 2005.  "Since then I had been urinating myself and didn't know what was happening."  He did not want his buddies to know anything was wrong; therefore, he changed his uniform several times a week.  Upon entering the Wounded Warrior unit at Fort Bliss, TX, he was seen by an urologist.  After several procedures, he was diagnosed with a neurogenic bladder caused by trauma due to his injuries.  

	b.  He catheterizes himself daily which affects his ADL.  Initially the TSGLI office asked him for medical documents and it took time to get all of the appointments and documentation.  This has been going on since 2007.  He was recently told the deadline date for his claim has expired.  He has submitted his claim several times while at the same time he was going through the medical evaluation board process and then on to the Department of Veterans Affairs  (VA) medical process.  This took time and officials should have taken the time- consuming process into consideration when processing his claim.  
	c.  His injuries were combat related.  The daily procedures he undergoes are very painful, intrusive, and invasive.  He submitted all the documentation and only wants to be treated fairly.  The TSGLI Processing Center is at fault.  They processed his claim as a first event, not the second event.  

3.  The applicant provides the following additional documentary evidence:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A self-authored letter to his Member of Congress
* A letter from the Office of Legislative Liaison to his Member of Congress
* A denial letter from the U.S. Army Human Resources Command, Alexandria (HRC-ALX), VA
* A progress note
* Voluminous exchange of emails with officials at HRC-ALX
* A internet printout from a lawyer regarding TSGLI
* A copy of his TSGLI application
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Medical charts
* Retirement Orders
* Office of SGLI denial letter

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant’s records show he enlisted in the Arizona Army National Guard (AZARNG) on 12 December 2002 and he held military occupational specialty (MOS) 13B (Cannon Crewmember).  He was assigned to Battery B, 2nd Battalion, 180th Field Artillery.

2.  On 13 October 2004, he was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 7 January 2005 to 21 December 2005.

3.  On 19 December 2005, he was issued a temporary physical profile for low back pain, nodules in skin, and hearing loss.  

4.  He submitted a copy of a DA Form 2173, dated 12 December 2006, that shows he sustained an injury on or about 1 May 2005, while deployed in Iraq.  He was riding in the gunner's position of a tactical truck travelling at a high rate of speed when the vehicle hit a dirt mound causing him to injure his back.

5.  His records contain a DA Form 2173, dated 6 September 2007, that shows on or about 11 January 2007, during a post-deployment examination, after serving a tour in Iraq, the applicant was diagnosed with Neurogenic Bladder.  

6.  On 17 December 2007, an informal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to various conditions. 

	a.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and he was granted a 30% disability rating for code 7542 (Neurogenic Bladder); a 30% disability rating for code 9411 (Post-Traumatic Stress Disorder), and 10% disability rating for code 5237 (Chronic low back pain).  The PEB also considered his other medical conditions and found them not to be unfitting and therefore they were not ratable.  

	b.  The PEB recommended that the applicant be placed on the temporary disability retired list (TDRL) with reexamination during June 2009.  The applicant appears to have concurred with the PEB's finding and recommendation and waived his right to a formal hearing of his case.

7.  He was honorably retired on 14 March 2008 and placed on the TDRL in his retired rank of sergeant/E-5 on 15 March 2008.  The DD Form 214 he was issued shows he completed 3 years, 5 months, and 14 days of active service during this period. 

8.  On 26 February 2008, he underwent a TDRL PEB that determined his conditions had not improved sufficiently enough for a final adjudication of his case; accordingly, the PEB recommended he remain on the TDRL with reexamination during May 2010.

9.  On 13 February 2009, the applicant completed and submitted his application for TSGLI benefits.  He claimed OTI (Other Traumatic Injury) ADL loss for 
30 days due to the loss of bladder control and back injury caused by the truck accident.  The medical professional checked the "Yes" box that asks "Did the patient's injuries render the patient completely dependent upon another person to perform at least two ADLs (bathing, maintaining continence, dressing, eating, toileting, and transferring).  However, the medical professional did not enter any comments about the applicant's injuries or list his/her information, or sign or date 


the claim form.  Nevertheless, the applicant claimed ADL loss due to lack of continence and his inability to dress independently.  The following entries are further made on the claim form:

* He experienced the loss of bladder control two times per day and he was completely dependent upon another person to manage medical devices (catheter, colostomy bag) from 1 September 2005 to the present
* He had an ongoing inability to dress and he was completely dependent upon another person to pull shirt, pants, shorts, or sweat pants on or off from 1 September 2005 to the present
* He was unable to toilet in that he required the assistance of an additional person for clean intermittent catheterization for neurogenic bladder from 1 September 2005 to the present

10.  In connection with this claim, he submitted a progress note, dated 13 February 2009, wherein the medical professional noted the applicant had a neurogenic bladder.  He was able to void somewhat but unable to completely empty.  He uses clean intermittent catheterization (CIC), has occasional incontinence episodes and wore pads occasionally.  He reported CIC was painful and he needed an additional person to make sure he did not fall/pass out from the CIC.  

11.  On 3 February 2009, by letter, the Office of TSGLI, Roseland, NJ, notified him that his claim was denied.  He was advised that an inability to carry out ADLs means the inability to perform at least 2 out of 6 ADLs and that there was insufficient medical evidence to support the loss.  In order to be eligible for the TSGLI benefit, the medical provider must address the specific injuries he sustained and illustrate a timeline for treatment.  The timeline of treatment would consist of notation from licensed medical providers such as physicians, physician assistants, nurse practitioners, and registered nurses.  Supporting documentation may also be submitted by other medical providers pertinent to the sustained injuries, to include occupational therapist (OT), physical therapist (PT), or speech/language pathologist.

12.  In September 2009, he again claimed ADL loss due to the incident in Iraq.  His appeal was reviewed by a physician at the Office of TSGLI but was determined to contain insufficient evidence to support ADL loss.  Accordingly, on 




23 February 2010, by letter, an official at HRC-ALX notified the applicant that a review of his claim and the supporting evidence he submitted was insufficient in reversing the previous decision.  The official stated:

	a.  The applicant was injured in a truck accident, sustaining a back injury.  He subsequently developed a neurogenic bladder which now requires intermittent self-catheterization.  His claim was previously reviewed and denied. 

	b.  He submitted an appeal wherein his physician added the loss of toileting as a second impaired ADL without any explanation.  The claimed impairment is not consistent with the physical condition.  

	c.  He later submitted another claim with additional documentation that was dated 2008 and 2009 as the reason for the ADL loss.  Since his injury occurred in 2005, the additional documentation could not be used because it is outside the 
2 year/730 day window from date of the injury.

13.  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. 

14.  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

15.  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, VA also examined industry trends relating to AD&D benefits over the last two years.  
16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was involved in a truck accident in Iraq in 2005.  He sustained a back injury that resulted in medical intervention and subsequent need for self-catheterization.  The claimed loss cited continence and toileting as the two out of six impaired ADLs.

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 OT/PT 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.  In his original application, the applicant appears to have claimed the loss of one ADL.  He submitted an appeal wherein his physician added the loss of toileting as a second impaired ADL without any explanation.  A request for an explanation as to why he could not catheterize himself without assistance (like almost everyone else with a neurogenic bladder does) was not answered.

5.  The ADL claims for incontinence and a requirement for assistance in "self" catheterization appear to be mutually exclusive.  With a neurogenic bladder, the applicant would experience overflow incontinence if he did not empty his bladder intermittently with a catheter.  If he performs self catheterization, there would be no overflow incontinence.  

6.  The ADL claim for assistance in dressing himself is completely unsubstantiated.  It appears he could have had, at most, one ADL that required assistance during the period specified by law.  

7.  There is insufficient evidence to substantiate the applicant's need for assistance with self catheterization and, therefore, there is no basis for granting relief to the applicant.

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)                                         AR20100015353



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ABCMR Record of Proceedings (cont)                                         AR20100015353



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