IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100018874 


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 Serviceman's Group Life Insurance (TSGLI) in the sum of $25,000.

2.  The applicant states she met all of the requirements to receive TSGLI benefits in the amount of $25,000. 

3.  The applicant provides the following:

* Standard Form (SF) 600 (Chronological Record of Medical Care) for the period 3 March to 2 April 2009
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 March 2009
* DA Form 3349 (Physical Profile), dated 27 April 2009
* SGLV 8600 (Application for TSGLI Benefits), Part B, dated 18 May 2009
* Physician Statement, Walter Reed Army Medical Center (WRAMC), dated 17 August 2009
* Office of Servicemembers' Group Life Insurance (SGLI) Letter, dated 
1 September 2009
* Applicant's Appeal Letter, dated 17 October 2009
* Entry of Appearance of Legal Counsel, Notice of Disagreement, Request for Reconsideration of TSGLI Claim, and Notice of Additional Claim, dated 27 October 2009


* Deputy Chief, TSGLI, U.S. Human Resources Command (USAHRC) letter, dated 16 November 2009
* Physician Statement, WRAMC, dated 6 December 2009
* Counsel's Letter, dated 8 March 2010
* Counsel's email correspondence, dated 9 June 2009
* Two witness statements
* Appendix B (Glossary of Terms), TSGLI Procedures Guide, dated September 2008
* Part 4 - Schedule of Losses, TSGLI Procedures Guide, dated 5 October 
2009 
* Extracts from the TSGLI Procedures Guide, dated November 2008 (Pages 
16, 17, and 20)
* An Extract from the SGLI Traumatic Injury Protection Year-One Review (Pages 5, 37, and 38)
* An Article titled "The Role of Ambiguity in Insurance Policy Interpretation"

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be paid the balance of insurance proceeds in the sum of $25,000.

2.  Counsel states, in effect, the applicant's injury is a covered traumatic event and meets the standards of inability as defined in the TSGLI Procedures Guide.  Further, TSGLI premiums were deducted from the applicant's salary and any ambiguity should be resolved in favor of the policyholder as a matter of black letter law. 

3.  Counsel provides a legal brief comprised of a statement of facts, procedural history of TSGLI claims, argument, and conclusion. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a sergeant first class serving in the California Army National Guard.

2.  The applicant's complete medical records are not available for review.  The details surrounding her injury were provided either by the applicant or extracted from the TGSLI Army Review Boards Agency (ARBA) Summary.  It is also noted that many of the medical entries are illegible; however, there is sufficient legible content to render an impartial decision.


3.  The TGSLI ARBA Summary states that on 23 February 2009, the applicant was travelling as a passenger in a Mine Resistant Ambush Protected (MRAP) vehicle over rough terrain from Forward Observation Post (FOB) Speicher to FOB Sykes.  She was wearing full battle gear weighing at least 55 pounds and seated in a cramped position.  Upon arrival at FOB Sykes, she was not able to stand upright and was carried by Sergeant K---L to the Troop Medical Center (TMC).  She was placed on quarters and approximately 1 week later she was medically evacuated to Landstuhl, Germany for follow-on care and treatment.  

4.  The chronological records of medical care submitted by the applicant show the following entries between 3 March and 2 April 2009.

	a.  On 3 March 2009, she complained of severe lower back pain shooting down her buttocks for 7 days.  She reported that she experienced sudden pain when getting out of her seat in an MRAP.  She was diagnosed with a lumbar sprain/moderately severe acute back strain.  She was given heat packs and a 
3-day profile.

	b.  On 4 March 2009, the military physician concurred with the original provider's diagnoses of a moderately severe acute back strain.  The prescribed treatment was complete rest, heat, and scheduled Non-Steroidal Anti-inflammatory Drugs (NSAID) and muscle relaxant for 3 days.  Reevaluate in
3 days (or sooner if worsening).  

	c.  On 6 March 2009, during a follow-up visit the applicant reported the pain and stiffness had somewhat improved with rest and muscle relaxants.  The physicians noted the "condition does not warrant evacuation for advanced care at this time.  Plan to continue scheduled NSAID and muscle relaxant.  Consider physical therapy next week if improving.  If not, continue to follow closely until Soldier redeploys to CONUS in 2 weeks."  Her disposition was 72 hours on quarters and to follow up in 4 days or sooner if there were problems.

	d.  On 10 March 2009, the applicant reported her pain level was 7, difficulty getting dressed, no swelling, and improvement with pain since last visit 1 week ago.  

   e.  The applicant's medical record indicates she had a physical therapy consult on 12 March 2009 and she was directed to continue her medications, and advised that she would be given radiology consult when she returned to the states.  The disposition was to follow up as needed.  On the same day, she received physical therapy treatment.  She reported her pain was at level 8 prior to treatment and level 6 after treatment.
   
   f.  Between 15-18 March 2009, the applicant reported she was fine when lying in bed but when simply sitting the pain was excruciating.  The physician noted that medics from her unit agreed to check on her at least three times a day and bring her food.  She required maximum assistance to ambulate to the port-a-potty and ultimately would require an MRI and continued physical therapy.  If condition (likely lumbar disc herniation) cannot be controlled conservatively a spine surgeon would need to be consulted to consider surgical intervention.  She was evacuated to the 332nd Expeditionary Aeromedical Squadron, Contingency Aeromedical Staging Facility.
   
   g.  Between 19-20 March 2009 she reported her pain level at 2 using a wheelchair to get about, up to the restroom twice.  She was told to request assistance before taking a shower.

5.  On 2 April 2009, the applicant received an MRI at Womack Army Medical Center, Fort Bragg, NC which showed an increased lumbar lardosis, narrowing of the lumbosacral interspace, and mild osteoarthritis.  

6.  On 18 May 2009, the applicant submitted a TSGLI claim for hospitalization for less than 15 consecutive days and loss of activities of daily living (ADL) for over 30 days for bathing, dressing, toileting, and transferring.

7.  On an unknown date in August 2009, she submitted a request for reconsideration of her TSGLI claim for hospitalization and loss of ADL for 
34 days for dressing, toileting, transferring, and bathing.  The U.S. Army Physical Disability Agency disallowed her claim because the medical documentation provided as part of the TSGLI claim did not support that she suffered a traumatic event per TSGLI guidelines.

8.  On 1 September 2009, the Office of Servicemembers' Group Life Insurance informed the applicant that her TSGLI claim could not be approved as her condition was not the direct result of a traumatic event.  A traumatic event is defined as "the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being."

9.  On 17 October 2009, the applicant filed an appeal of her TSGLI claim for hospitalization and loss of ADL for over 30 days for bathing, dressing, toileting, and transferring.



10.  On 16 November 2009, the U.S. Army Human Resources Command (HRC) TSGLI Division disapproved her appeal because the medical notes were not consistent with the claimed loss and there was no evidence she was involved in a traumatic event.

11.  Counsel contends further denial of the applicant's insurance proceeds in the sum of $25,000 is inexcusable and argues:

	a.  Eyewitness statements confirm the applicant was confined in a cramped condition for 8 hours over rough terrain and that her traumatic injury was caused by external force.

	b.  The healthcare provider who treated the applicant confirms the traumatic injury was the direct result of a traumatic event.

	c.  Loss of at least two ADLs for over 30 days as defined by the TSGLI Procedures Guide and confirmed by the eyewitness accounts, medical records, and the health care provider.

	d.  Witness statements and Part B of the TSGLI application confirm the claim meets the definition of "External Force."

	e.  The One Year Review published in July 2008 states that the TSGLI Claim Office should depend heavily on the part B Certification and limit additional medical documentation. 

12.  The applicant provides the following additional documentation through her counsel:  

	a.  A DA Form 2173, dated 18 March 2009, which shows the applicant felt a sharp pain in the back while riding in the back of an MRAP.  Her injury (DISC DIS NEC/NOS-LUMBAR) was determined to be in the line of duty.  

	b.  A temporary physical profile for abdominal pain, dated 27 April 2009.

	c.  A Memorandum of Record, Subject:  TSGLI Disability claim for [applicant], dated 17 August 2009.  The applicant's Squadron Surgeon directly responsible for her care at the time of her injury states he completed her initial evaluation and subsequent care until such time as she was evacuated.  It is his medical opinion that either being forced into an unnatural position for an extended period of time or repeated contortions of her back due to riding over uneven road surfaces (or both) was the direct cause of her traumatic back injury.

	d.  A notice of legal representation and request for the applicant's TSGLI records under the Freedom of Information Act.

   e.  Memorandum of Record, Subject:  TSGLI Disability claim for [applicant], dated 6 December 2009.  The applicant's Squadron Surgeon directly responsible for her care at the time of the injury indicated his medical opinion was that the traumatic event which caused her injury was the application of external force from the weight of her gear (approximately 55 pounds) applied directly to her back while riding over rough terrain.

	f.  The medical professional's comments from her TSGLI application.  The notes state:

* No prior history of back problems, aerobics instructor in excellent health
* First hand reports suggest she was compressed in an unnatural position, for a prolonged period of time, over "very bumpy," uneven road surfaces
* The traumatic event which caused her injury was the application of external force from the weight of her gear applied directly to her back

   g.  A witness statement from the applicant's platoon sergeant wherein he contends he witnessed the applicant's inability to care for herself due to her injury.  He instructed Soldiers to bring her meals, assist her with dressing, and going to the latrine.  On one occasion he physically carried her to the vehicle and transported her to the Troop Medical Clinic where she remained until she was evacuated to Landsthul, Germany on 17 March 2009. 

   h.  A witness statement from a fellow Soldier who states the applicant suffered a back injury after an 8-hour convoy.  The nearest medical facility was 50 miles away so she was placed on quarters and relied on medication to get her through the injury.  He recalls several instances of taking her food and sitting with her to improve her morale.  In addition, on one occasion the applicant was carried out of the Dining Facility on a litter because she was in so much pain.

	i.  Counsel's response to the denial of TSGLI benefits, date 8 March 2010.

   j.  The applicant further provides email correspondence; extracts from the SGLI Procedures Guide referencing terms, schedule of losses, activities of daily living, the SGLI Traumatic Injury Protection Year-One Review; and an article discussing the role of ambiguity in insurance policy interpretation.



13.  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.

14.  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.

15.  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 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 will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

16.  Appendix B (Glossary of Terms) of the TSGLI Procedures Guide, dated September 2008, provides the following definitions:

   	a.  Traumatic Event, the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to a living body. Examples include:
* Military Motor Vehicle Accident
* Military Aircraft Accident
* Civilian Motorcycle Accident
* RPG Attack
* IED Attack
* Civilian Motor Vehicle Accident
* Civilian Aircraft Accident
* Small Arms Attack
* Training Accident

	b.  Traumatic Injury, the physical damage to a living body that results from a traumatic event.  

   c.  External Force, as a force acting between the body and the environment, including a contact force, gravitational force, or environmental force, or one produced through accidental or violent means.  

17.  A member who is hospitalized for 15 consecutive days as the result of a traumatic injury is eligible for a $25,000.00 payment under TSGLI.  The count of consecutive hospitalization days begins when the injured member is transported to the hospital, includes the day of admission, continues through subsequent transfers from one hospital to another, and includes the day of discharge.  If a member is hospitalized for 15 consecutive days, the member's hospitalization takes the place of the first ADL milestone payment only.  The 15 days of hospitalization cannot be substituted for any other ADL milestone payment.  Payment will be made for the 15-day hospitalization or the first ADL milestone, whichever occurs first.  There are two situations covered by this replacement:  the member is hospitalized due to coma/TBI or the member is hospitalized due to other traumatic injury.

18.  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 requests reconsideration of her TSGLI claim.



2.  While the fact that the applicant required medical care and support following her injury in February 2009 is not in question, the evidence in her service medical records does not approach the level of required documentation required to justify a TSGLI payment for loss of ADLs.  

3.  It is reasonable to assume that forces generated by traveling over rough terrain in a cramped position with the weight of her battle gear could have caused an injury to her back.  However, there is no evidence the injury was a direct result of a traumatic event.  

4.  A traumatic event is defined as the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to a living body.  Examples include military motor vehicle accidents, military aircraft accidents, civilian aircraft accidents, RPG attacks, small arms attacks, and training accidents.  The applicant's injury could be considered traumatic; however, it was not caused by a traumatic event. 

5.  Notwithstanding the applicant's counsel's arguments, the supporting documents provided by the applicant do not show she sustained a qualifying traumatic event.  Therefore, she does not qualify for payment of TSGLI.  

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20100018874



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ABCMR Record of Proceedings (cont)                                         AR20100018874



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