IN THE CASE OF:	  

		BOARD DATE:	17 March 2011

		DOCKET NUMBER:  AR20100021572 


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, correction of his records to show he is entitled to Traumatic Service Members’ Group Life Insurance (TSGLI), for head and facial injuries, loss of right index finger, and hearing loss, caused by combat injuries in Iraq.

2.  The applicant states, in effect, he suffered the above combat-related injuries in a riot in the town of As Samawah on 21 December 2003.  He states he believes it is a grave injustice to reject the payment of TSGLI to a wounded Soldier simply because surgery occurred more than 730 days after the original combat injury.  He further states it is not his fault that his facial injuries required such a large number of surgeries.  After his temporomandibular joint (TMJ) surgery in March 2010, the Army facial surgeon found him unfit for duty due to bilateral TMJ, as he no longer had full range of motion.  [The temporomandibular joint is the joint of the jaw and it is frequently referred to as TMJ.  There are two TMJs, one on either side, working in unison.  Pain or dysfunction of the temporomandibular joint is commonly referred to as "TMJ," when in fact, TMJ is really the name of the joint].  

3.  The applicant states he does not understand how he could be found unfit for duty, forced out, and not qualify for TSGLI. 

4.  The applicant provides:

* TSGLI Application, dated 10 May 2010 
* Denial letter from the U.S. Army Human Resources Command (HRC), dated 6 July 2010
* four DA Forms 3349 (Physical Profile), dated 22 June 2009, 11 May 2010, 3 June 2010, and 19 July 2010
* DD Form 2807-1 (Report of Medical History), dated 10 July 2009 
* Neuropsychological Evaluation from Dr. Dxxxs, dated 1 September 2009
* two letters from fellow Soldiers charged with his care, both dated 
26 October 2009
* DD Form 2216E (Hearing Conservation Data), dated 30 October 2009 
* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 27 April 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Utah Army National Guard on 1 February 1979.  He has served through multiple extensions or reenlistments in the Army National Guard, U.S. Army Reserve (USAR), Regular Army and U.S. Naval Reserve.  On or around 27 January 2003, he was first mobilized from the USAR, which was the first of multiple deployments and/or continuous periods of mobilization in support of Operations Iraqi Freedom and Enduring Freedom.  He attained the rank/grade of command sergeant major (CSM)/E-9.  He held military occupational specialty (MOS) 00Z (Command Sergeant Major) at the time of his most recent separation.
  
2.  His records also show he served in Iraq from 12 October 2003 to                  20 December 2004.

3.  On 21 December 2003, while providing personal security to a British officer, he suffered injuries caused by rioting Iraqi locals in the city of As Samawah.  The extent of his injuries was unknown at the time, and his medical records pertaining to these injuries are not available for review.  Additionally, according to the available records, he refused medical evacuation immediately following the incident.  

4.  His records show he redeployed to Fort Lewis, WA on 20 December 2004 and he continued to serve on active duty.

5.  On an unknown date in May 2006, he submitted his initial TSGLI claim.  While unavailable for review, its details were summarized by HRC in its TSGLI Army Review Boards Agency (ARBA) Summary.  He claimed the loss of Activities of Daily Living (ADL) for 120 days.  Following a physician's review, it was determined his incurred losses did not meet the TSGLI minimum standard to be compensated.  Although he suffered the amputation of a finger, he did not meet reasonable standards that would indicate the inability to complete daily activities through adaptive measures.  Additionally, both the amputation of his right index finger, as well as his claim for facial reconstruction, did not meet minimum standards for payment.  Accordingly, his claim was denied.

6.  On an unknown date in January 2009, he requested reconsideration of his claim.  While unavailable for review, its details were summarized by HRC in its TSGLI ARBA Summary.  He applied for the same losses again, as well as a newly-submitted claim for 15 days of hospitalization.  Following a physician's review, it was determined his incurred losses did not meet the TSGLI minimum standards for compensation under the TSGLI Schedule of Losses.  Accordingly, his request for reconsideration was denied.

7.  On 10 May 2010, he submitted his appeal application for TSGLI benefits, which appears to have been received by HRC in July 2010.  He cited a severe injury to his face and right hand, resulting in multiple facial reconstructive surgeries and the amputation of his right index finger and portions of his right hand, as well as loss of hearing, and traumatic brain injury (TBI).  He claimed Other Traumatic Injury (OTI) ADL loss for 122 days due to the amputation of his right index finger and portions of his right hand, and his inability to:

* bathe independently (needed physical and standby assistance).
* dress independently (needed physical assistance – get and put on clothing, socks, and shoes)
* toilet independently (needed physical assistance – getting clothing off and on)

8.  On 6 July 2010, the TSGLI program office at HRC responded to his appeal request, stating that although he was wounded in combat and incurred several losses resulting from those wounds, none of his losses met the TSGLI program requirements because his injuries and losses were more than 730 days apart.

9.  He submitted the following DA Forms 3349 dated: 

* 22 June 2009, which shows he was diagnosed with PTSD
* 11 May 2010, which shows he was diagnosed with bilateral knee arthritis and right hand pain/weakness 
* 3 June 2010, which shows he was diagnosed with sensorineural hearing loss in both ears
* 19 July 2010, which shows he was diagnosed with bilateral TMJ with loss of full range of motion


10.  Additionally, the applicant submitted:

* a DD Form 2807-1, dated 10 July 2009, which he completed, but it is absent the examiner's comments and signature 
* two letters from fellow Soldiers both dated 26 October 2009, attesting to the care they provided for him during the period immediately following the amputation of his right index finger and partial hand
* the SF 600, dated 27 April 2010, details his current medical issues and the medications he was prescribed.

11.  Public Law 109-13, signed by the President on 11 May 2005, established the TSGLI program.  The TSGLI program was established by Congress to provide financial relief to Soldiers and their families after suffering a traumatic injury.  TSGLI payments are designed to help traumatically injured Servicemembers and their families with financial burdens associated with recovering from a severe 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.  To be eligible for payment of TSGLI, servicemembers must meet all of the following requirements: 

* must be insured by SGLI when you experience a traumatic event
* must incur a scheduled loss and that loss must be a direct result of a traumatic injury 
* must have suffered the traumatic injury prior to midnight of the day that you separate from the uniformed services
* must suffer a scheduled loss within 2 years (730 days) of the traumatic injury
* must survive for a period of not less than seven full days from the date of the traumatic injury 

12.  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.  The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II.  Each loss has a corresponding payment amount.

		a.  Part I loss includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, and facial reconstruction.  Injuries listed under facial reconstruction may be combined with each other, but the maximum benefit for facial reconstruction may not exceed $75,000.00.  Any injury or combination of injuries under facial reconstruction may also be combined with other injuries listed in Part I and treated as one loss, provided that all injuries are the result of a single traumatic event.  However, the total payment amount may not exceed $100,000.00.  Facial reconstruction is defined as reconstructive surgery to correct traumatic avulsions of the face or jaw that cause discontinuity defects as follows:

* jaw, surgery to correct discontinuity loss of the upper or lower jaw
* nose, surgery to correct discontinuity loss of 50 percent or more of the cartilaginous nose
* lips, surgery to correct discontinuity loss of 50 percent or more of the upper or lower lip
* eyes, surgery to correct discontinuity loss of 30 percent or more of the periorbita
* facial tissue surgery to correct discontinuity loss of the tissue in 50 percent or more of any of the following facial subunits:  forehead, temple, zygomatic, mandibular, infraorbital, or chin

	b.  Part II loss includes traumatic injuries resulting in the inability to perform at least two ADLs for 30 or more consecutive days and hospitalization due to a traumatic injury and OTI 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. 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.

13.  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 OTI.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he is entitled to TSGLI for combat injuries including head and facial injuries, loss of right index finger, and hearing loss, was carefully considered.

2.  His request for TSGLI was based on three things: OTI ADL loss from severe injuries to his face and right hand, resulting in multiple facial reconstructive surgeries and the amputation of his right index finger and portions of his right hand; TBI; and hearing loss.  Unfortunately, all available diagnoses and subsequent treatments occurred after the TSGLI's 2-year filing threshold from injury to loss.  Additionally, the actual extent of his hearing loss has been determined to be inconclusive at this time, but may still be appealed to the TSGLI program office, as it is considered to be a new claim.
   
3.  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.  Medical documentation from the time of his injury until his first claim submission in 2006 is not available for review in this case; therefore, the available evidence is not sufficient to substantiate his claims of ADL loss, nor attribute his losses to the injuries he sustained.

4.  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.  

5.  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, single limb injury, 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 injuries such as those he sustained. 

6.  In view of the foregoing, there is insufficient basis for granting 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)                                         AR20100014472



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ABCMR Record of Proceedings (cont)                                         AR20100021572



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