BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100021926 


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, approval of his Traumatic Servicemember’s Group Life Insurance (TSGLI) claim for $75,000.00.

2.  The applicant states:

* he was erroneously denied TSGLI payment for his traumatic injury
* he is entitled to payment of the balance of his TSGLI insurance coverage in the sum of $75,000.00
* he met all requirements to receive $75,000.00 in TSGLI benefits 

3.  The applicant provides an undated brief from his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states:

	a.  the applicant injured his right knee while on duty in Kuwait.  On 27 January 2007, while moving sandbags, he twisted his knee creating a torn meniscus in his right knee.  He was seen at the Troop Medical Clinic and he was unable to return to work.  He was placed in an immobilizer and given crutches.  On
7 February 2007, his right knee was x-rayed and a traumatic change in his right knee was noted.  On 14 February 2007, he was treated for his knee pain and it was determined he needed physical therapy.  On 11 March 2007, he was transported from Kuwait to Ramstein Air Base, Germany, and then to Walter Reed Medical Center, Washington, DC.  He began physical therapy on 14 March 2007 and was placed on a physical profile.

	b.  on 27 April 2007, he had an MRI [magnetic resonance imaging] which shows he had a meniscal tear.  Also accompanying this report is a note from a physician that states his injury was a result of his military service.  He continued his physical therapy until 3 January 2008.  He had arthroscopic surgery of his right knee on 4 January 2008.  He resumed his physical therapy and on 
25 February 2008 his physician stated he would be permanently unable to climb stairs with a heavy pack or stoop or bend.  The physician further noted a medical discharge was appropriate.  On 27 February 2008, he was placed on a permanent profile.  The applicant was declared physically unfit by a Medical Evaluation Board (MEB) on 20 March 2008 and he continued physical therapy until 25 March 2008.  He continued his treatment with his physician until 
17 December 2008.

	c.  in December 2008, he was given a Compensation and Pension Exam at the Murfreesboro Veterans Affairs (VA) Hospital.  During this examination it is noted he had continued severe loss of ADLs [activities of daily living].  On 
31 July 2009, he had an MRI done on his right knee that demonstrated mild osteoarthritic changes with mild articular cartilage thinning.  He continued to seek treatment.

	d.  attached to this brief is a "new" Part B (Medical Professional's Statement) completed by the applicant's primary care provider, which states he was unable to bathe independently, dress independently, and toilet independently from 
27 January 2007 to 2 May 2007.  He further states the applicant could not independently transfer from 27 January 2007 to 28 March 2007.  All of the above listed ADL losses required physical assistance and standby assistance as required by the TSGLI procedures guide.  He was granted a 30 percent (%) disability rating percentage by the VA for his right knee.

	e.  he received a denial letter, dated 18 June 2007, which states his injury "was not the direct result of a traumatic event."  This statement is obviously in error.  His knee injury would fall under the provisions of the TSGLI procedures guide's definition of a traumatic event.  It states on page 66 of the TSGLI procedures guide that 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 damages to a living body."  He was moving sandbags at the time of injury.  Gravity is the external force in this type of injury.  This type of injury would not be induced by normal work activities.
	f.  he also points out attached to the denial letter is the Title 38, Code of Federal Regulations (CFR), Part 9, which states exactly what TSGLI is not meant to pay -- medical procedurals.  This is the intent of Congress, and had they not intended that this type of injury be approved, they would have specifically listed it in the ruling, as they did with medical procedurals.  Furthermore, there has not been any kind of "look-back" as described by a captain, former officer in charge of the Army Branch of TSGLI, in an interview on 19 December 2008 until counsel asked for review.  In this interview, the captain states TSGLI would be reviewing the denied claims because of a loosening of the regulation regarding ADL losses.  In addition, the "Year One Review" further describes the changes in procedure and retroactivity.

	g.  the applicant testifies in an affidavit to the loss of ADLs and the type of help he was dependent upon to complete his ADLs.  He testifies he had to depend on his fellow Soldiers and friends to physically lift him from bed and help him dress.  Someone had to constantly stand beside him while he was walking on crutches.  He further testifies he needed both physical and stand-by assistance to transfer from his crutches to and from a shower chair or into a bathtub.  He had to have the assistance of another person to lay back into bed, holding his knee straight as he lay back down.  He could not bend his knee.  He testifies he required physical assistance to put his pants, socks, and shoes due to the immobility of his right knee.  He also describes the physical assistance needed to toilet.  This occurred from the date of injury (27 January 2007) to
2 May 2007.  This is as required by page 20 of the TSGLI procedures guide.

	h.   on 17 June 2010, counsel asked for reconsideration of the applicant's claim for TSGLI with submission of all the evidence attached to this brief.  On
12 July 2010, the applicant received a letter stating that his claim could not be approved because there was not a traumatic event and that he could reasonably adapt to fulfill his ADLs within 30 days.  Neither the procedures guide nor in the "One Year Review" does it allow TSGLI to go against the opinion of the treating physician.  As a matter of fact, it states in the "One Year Review" that the Part B portion of the application should be allowed the most weight.  The applicant's insurance proceeds in the sum of $75,000.00 should be ordered paid to him.

2.  Counsel provides:

* a DA Form 285-AB-R (U.S. Army Abbreviated Ground Accident Report)
* a DVA documentation
* pages 16, 17, 20, and 66 of the TSGLI Procedures Guide
* an extract of Title 38, CFR, Part 9
* his sworn statement, dated 4 June 2010


* counsel's request for reconsideration, dated 17 June 2010
* pages 7-12 of Part B (Medical Professional's Statement), dated 22 June 2010
* numerous medical records 

CONSIDERATION OF EVIDENCE:

1.  Having prior inactive service in the Army National Guard and active service in the Regular Army, he enlisted in the Kentucky Army National Guard (KYARNG) on 31 May 2006.  He was ordered to active duty on 11 July 2006 in support of Operation Iraqi Freedom (OIF).

2.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 10 March 2007, shows he injured his right knee on 27 January 2007 in Kuwait.  Item 15 (Details of Accident or History of Disease) of this form states while at a refueling site he put his foot in between a barrier and a sandbag which didn't allow his foot to pivot thus twisting and injuring his right knee.

3.  On 18 June 2007, his claim for TSGLI benefits was disapproved because his condition was not a direct result of a traumatic event.

4.  On 20 March 2008, a Physical Evaluation Board (PEB) found the applicant physically unfit due to right knee periarticular pathology following right knee arthroscopy, medial femoral, and patellar chondroplasty.  The PEB recommended a combined rating of 10% and separation with severance pay.

5.  On 11 July 2008, he was honorably discharged under the provisions of Army Regulation 635-40, by reason of disability, severance pay, combat-related.  

6.  He was further honorably discharged from the KYARNG due to being medically unfit for retention.

7.  Counsel provided pages 7-12 of a "new" Part B of the applicant’s Certification of Traumatic Injury Protection form, dated 27 July 2009, wherein his attending physician stated he could not perform dressing, bathing, or toileting independently during the period 27 January 2007 to 2 May 2007.  He also could 
not perform transferring independently during the period 27 January 2007 to
28 May 2007.

8.  On 17 June 2010, counsel submitted a request for reconsideration for TSGLI benefits.  On 12 July 2010, the TSGLI office denied his request.  The letter states the applicant sustained a twisting knee injury.  By TSGLI definition this is not considered a traumatic event.  Medical documentation states he had a history of chronic right knee problems.  He was diagnosed with a meniscal tear and underwent arthroscopic repair.  It is 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.

9.  The TSGLI Office provided a chronological summary of the applicant’s appeals.  The TSGLI summary chronological listing shows that:

	a.  In June 2007, he filed his first TSGLI claim for loss of ADLs ongoing since the time of his injury.  Following the first review, it was determined that the loss incurred did not meet the TSGLI minimum standard to be classified as a traumatic event.  Additionally, should his injury been classified as a traumatic event, he was utilizing adaptive measures (crutches) within the first month of his injury to ambulate;

	b.  He submitted a reconsideration claim in February 2009.  He applied for the same losses.  Again, it was determined after physician review that he was capable of adopting within 30 days through adaptive measures.  The physician also determined that this was not a qualifying event.  It could not be determined what would equate to external force.  The medical documentation submitted did not support that he suffered a traumatic event per TSGLI guidelines;

	c.  He filed his appeal claim in July 2010.  The claim was again reviewed by the TSGLI physician as part of the appeal process.  Their medical professional reviewed all previously submitted claims and determined that the medical notes provided were not consistent with the claimed loss; and

   d.  The TSGLI Office determined the applicant suffered a knee injury that could not be considered a traumatic injury per TSGLI guidelines.  If it could have been considered a traumatic event, he was adapting within 30 days with equipment. 

10.  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 May 11, 2005, established the TSGLI program.  U.S. Army 
Combat-Related Special Compensation (CRSC) 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 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 $1.00 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 OIF and Operation Enduring Freedom or under orders in a Combat Zone Tax Exclusion (CZTE) 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.

11.  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 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% of body or 30% of the face;

	h.  coma or traumatic brain injury; or

	i.  other traumatic injuries resulting in the inability to carry out 2 of the 6 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 
(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.  

12.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS:

1.  The evidence provided by counsel was carefully considered.  The applicant's contentions were also noted.

2.  Counsel contends the applicant was moving sandbags at the time of injury and that gravity is the external force in this type of injury.  However, the DA Form 2173 shows the applicant injured his right knee when he put his foot in between a barrier and a sandbag which didn't allow his foot to pivot, thus twisting and injuring his right knee.  His TSGLI claims were disapproved because it was determined his knee injury could not be considered a traumatic injury per TSGLI guidelines.  

3.  The DA Form 2173 indicates that it was not an external force that caused the applicant's injury.

4.  The applicant has not provided sufficient documentation to show his TSGLI claims were improperly disallowed.

5.  Regrettably, based on the foregoing there is insufficient evidence on which to grant the requested relief.   

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)                                         AR20100021926



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ABCMR Record of Proceedings (cont)                                         AR20100021926



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