IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100022113 


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 that he be paid $100,000.00 under the provisions of the Traumatic Service Members' Group Life Insurance (TSGLI) program.

2.  The applicant states, in effect, he was erroneously denied benefits under TSGLI due to exposure to radiological, biological, and chemical materials.  He defers further comment to his counsel.

3.  The applicant also defers to counsel to provide supporting evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be granted the maximum benefits under the TSGLI program.

2.  Counsel states, in effect, the applicant:

	a.  suffered a TSGLI covered loss while serving in Iraq from October 2006 through December 2007 as a result of exposure to radiological, biological, and chemical materials;

	b.  served in Iraq from October 2006 to December 2007 and he was stationed between 1 and 5 miles from Al Tuwaitha, Iraq, a nuclear development facility.  


	c.  Al Tuwaitha has been bombed on a number of occasions since 1981 and the locals have a practice of looting the site for storage containers which contained radiological material "yellowcake."  Yellowcake is a uranium concentrate powder obtained from leach solutions, in an intermediate step in the processing of uranium ores and the seed material for higher-grade nuclear enrichment.  It is not weapons grade nuclear material.  The yellowcake from the barrels was just dumped haphazardly out in the open; 

	d.  the applicant spent several days operating out of the Al Tuwaitha nuclear facility and, as well as being the machine gunner for a Humvee, he was breathing a lot of the potentially-contaminated dust kicked up by convoys;

	e.  after Al Tuwaitha, he was quartered in a refurbished bomb shelter that had to have four feet of long-standing water pumped out of it before it could be used. This housing may have been an additional contributory factor to his problems;

	f.  his first elevated liver counts were found in February 2009 and he has had 16 blood transfusions and 16 additional infusions of platelets between 26 March and 4 October 2009; 

	g.  the applicant had over 30 days of continuous hospitalization and at least 120 days of inability to perform the Activities of Daily Living (ADL's) of self-transfer and bathing;

	h.  his primary physician is 80 percent certain that the applicant's conditions are the result of exposure to radiological, biological, chemical, or contaminated substances while serving in Iraq;

	i.  the applicant is now considered terminally ill with a life expediency of 4 to 
5 years; and

	j.  the TSGLI denial letter, dated 8 October 2009, did not correctly and completely quote the regulation and did not address the applicant's medical conditions as being from pyogenic infection (an infection characterized by severe local inflammation with pus formation), biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance.

3.  Counsel provides a large number of medical records from the University of Colorado Hospital (269 pages) and the Mayo Clinic (30 pages).  He also provides statements from the applicant, his wife, and a fellow Soldier.

CONSIDERATION OF EVIDENCE:

1.  The applicant's service medical records are not available nor does his iPERMS record contain information on his assignment and locations during his deployment to Iraq.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) on 12 February 1997 and subsequently enlisted in the Regular Army on 9 September 2005.

3.  A post-deployment health assessment indicates the applicant arrived in Iraq on 12 October 2006 and departed on 24 December 2007.  The only medical symptoms noted during his deployment was a runny nose.  He reported exposure to vehicle or truck exhaust, load noises, sand, and dust.  He marked the "no" block for exposure to depleted uranium and for other exposure.  He described his health as very good but noted he had spent time in the Al Tuwaitha nuclear facility.

4.  The available records also indicate that the applicant had a second tour of duty in Iraq in 2008; however, the applicant's pay records do not show receipt of hazardous duty pay post December 2007.

5.  A Sworn Statement from Staff Sergeant C____, dated 20 February 2009, indicates the applicant was his gunner and they frequently conducted missions into and staged out of the Al Tuwaitha nuclear complex.  As the gunner, the applicant was frequently exposed to dirt, smoke, and any other contaminants kicked up when they were in a convoy.

6.  The medical records from the University of Colorado Hospital cover several periods of hospitalization and treatment from 27 February through 2 September 2009.  His treatment was for hepatitis and aplastic anemia.  He was also treated for additional conditions resulting from or related to these conditions including acute early liver failure, acute renal insufficiency, meningitis, colitis, erythrocytosis (an excess of red blood cells), neutropenia (abnormally low number of white blood cells), steroid induced hyperglycemia, gastroesophageal reflux disease, headaches, back pain, hyperglycemia, gastroparesis, and pulmonary embolus.  No etiology for the applicant's hepatitis or aplastic anemia was ever found. 

7.  MedlinePlus (a service of the U.S. National Library of Medicine, National Institutes of Health) defines hepatitis as a medical condition defined by the inflammation of the liver and characterized by the presence of inflammatory cells in the tissue of the organ.  The condition can be self-limiting (healing on its own) 
or can progress to fibrosis (scarring) and cirrhosis.  Hepatitis may occur with limited or no symptoms, but often leads to jaundice, anorexia (poor appetite) and malaise.  A group of viruses (including the human parvovirus) cause most cases of hepatitis worldwide.  Hepatitis can also be due to toxins including certain medications, some industrial organic solvents, and some plants, other infections and autoimmune diseases.  Hepatitis is acute when it lasts less than 6 months and chronic when it persists longer.  

8.  The medical records from the Mayo Clinic covered the period 19 - 25 July 2009 and show the applicant was diagnosed as suffering from aplastic anemia, presumed secondary to parvovirus; renal impairment; nausea and vomiting, secondary to medication; pulmonary embolus, etiology undetermined; episode of hepatics resolved; mild hypocalcaemia; electrolyte abnormalities, back pain, etiology undetermined, steroid-induced diabetes, and a history of meningitis.  

9.  On 14 September 2009, the applicant's physician completed Part B of the TSGLI application.  The only portion of the form the doctor completed involved the inability to independently perform ADL's.  He stated the applicant required both physical and stand-by assistance to bathe or shower; to get in and out of a shower, tub, bed, chair, or car; he could not prepare his own meals; and needed assistance dressing.  He was determined to have required assistance from 
27 February 2009 to an undetermined future date.  The physician opined that his liver condition "is almost certainly due to a viral or chemical exposure.  His hepatitis was complicated by the development of aplastic anemia, a known complication of hepatitis." 

10.  On 8 October 2009, the applicant's TSGLI claim was denied by the Office of Servicemembers' Group Life Insurance because the loss was the result of a physical or mental illness and such losses are not covered under TSGLI.

11.  On 8 January 2010, Dr. J. F___ K_____, MD, Director of University of Colorado's Clinical Cancer Center provided a statement for the applicant which indicates the applicant's liver problem occurred while he was on active duty and it is almost certain that it was due to a viral or chemical exposure.  The applicant's development of aplastic anemia is a known complication of hepatitis.  The applicant's treatment was complicated by the development of fungal meningitis.  He was evaluated at the Mayo Clinic and they concurred with the probable cause once they ruled out parvovirus as the cause.  None of his siblings were a close match for a bone marrow transplant and without a transplant the median survival for aplastic anemia is 48 months.


12.  On 12 January 2010, the Army placed the applicant on a profile that precluded participation in both Army Physical Fitness Training (APFT) and alternate APFT.  He was precluded from carrying more than 10 pounds and was considered nondeployable.

13.  A statement from Dr. K____, dated 22 February 2010, indicates in his opinion that since no virus could be found to account for the applicant's hepatitis, the cause of injury to his liver and bone marrow was exposure to radiation or other toxins during his service in the Middle East.  The doctor cited statistics (showing extremely high odds of 1 in 30,000 people) for developing hepatitis and aplastic anemia due to exposure to certain chemicals and radiation.  Dr. K____ states he is convinced with an 80 percent certainty that the applicant was "exposed to radiation or other toxic chemical that caused both his liver and bone marrow conditions while in the Middle East."  The applicant's development of fungal meningitis was most likely caused by the immunosuppressive properties of the medication he was proscribed for treatment.

14.  The applicant's wife's statement, dated 4 March 2010, addresses the period from 10 March to 11 April 2009.  She states the applicant was so weak that he could not shower, bathe, or wash himself completely without her assistance.  Due to his weakness and dizziness he could not transfer without assistance from 10 March 2009 through 28 July 2009.  

15.  The available evidence shows in March 2010 the applicant submitted a reconsideration request for TSGLI.  The TSGLI staff physician reviewed claims the applicant submitted from outside physicians stating he may have been exposed to radiation and toxic chemicals while deployed to Iraq.  It was also noted he redeployed to Iraq in 2008.  The TSGLI staff concluded that there was no etiology for the applicant's condition.  In July 2010, he filed an appeal through his attorney.  The claim was reviewed by a TSGLI physician and it was again denied.  

16.  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.  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.  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.


17.  The Department of Veterans Affairs (VA) is the agency tasked with the final administration of TSGLI.  The VA TSGLI website provides the following information, in accordance with Title 38 Code of Federal Regulation (CFR) § 9.20 and Public Law 109-13:

	a.  the TSGLI rider provides for payment to Servicemembers who are severely injured and incurred a loss as a result of a traumatic event;

	b.  for the purposes of TSGLI, 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.  The term “traumatic injury” does not include damage to a living body caused by a mental disorder; or a mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance;

	c.  to be eligible for payment of TSGLI a service member must meet all of the following requirements: 

       (1)  have been insured by SGLI at the time of the traumatic event; 

       (2)  have incurred a scheduled loss and that loss must be a direct result of a traumatic injury;

       (3)  have suffered the traumatic injury prior to midnight of the day of separation from the uniformed services;

       (4)  have suffered a scheduled loss within 2 years (730 days) of the traumatic injury; and 

       (5)  have survived for a period of not less than 7 full days from the date of the traumatic injury (in a death related case).

	d.  The TSGLI Schedule of Losses includes two parts.  Part I lists specific losses that include items like loss of an extremity, an inability to speak or see, and similar items.  Part II deals with the inability to carry out ADL's due to a loss directly resulting from a traumatic injury other than a brain injury.  A copy of the Schedule of Losses is attached.



	e.  TSGLI claims may be filed for loss of ADL's if the claimant is completely dependent on someone else to perform 2 of the 6 ADL's 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 medical documents demonstrating the injury type and duration of ADL loss.  In addition to a certification from a healthcare provider, applicants must provide additional documentation to substantiate the certification;  

	f.  The duration of the inability to carry out ADL's includes the day of onset of the inability to carry out ADL's and the day when the member can once again carry out ADL's.  The rates of payment are as follows:

       (1)  at the 30th consecutive day of the inability to carry out ADL's, $25,000;

       (2)  at the 60th consecutive day of the inability to carry out ADL's, an additional $25,000;

       (3)  at the 90th consecutive day of the inability to carry out ADL's, an additional $25,000; and 

       (4)  at the 120th consecutive day of the inability to carry out ADL's, an additional $25,000 [a maximum of $100,000.00]; and 

	g.  Each uniformed service will certify the eligibility of its own members for traumatic injury protection benefits based upon section 1032 of Public Law 
109-13 and 38 CFR § 9.20.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was erroneously denied TSGLI benefits for medical conditions due to exposure to radiological or biological contamination.

2.  The cause of the applicant's illness has not been established.  His physician postulates several theories that are unfounded and contradictory.  In September 2009 he stated the applicant's liver problem "is almost certainly due to a viral or chemical exposure.  His hepatitis was complicated by the development of aplastic anemia, a known complication of hepatitis."  In February 2010 the same doctor opined that both the hepatitis and the aplastic anemia were because "he was exposed to radiation or other toxins during his service in the Middle East."


3.  It is not clear why the cause of his problems were considered due to a viral or chemical exposure, in September 2009, and due to radiation or other toxins in February 2010, especially in light of the fact that the applicant had been responding to autoimmune treatment.

4.  The applicant's physician could find no "normal" cause for his hepatitis or aplastic anemia.  Based on the absence of an identifiable reason for his medical conditions, his physicians believe he may have come in contact with some type of toxic contaminant possibly viral, radiological, or chemical in nature and it is probable that this exposure occurred as a result of his service in Iraq between 2006 and 2007.  This opinion is not supported by any other medical evidence or opinions and the fact that the conditions did not manifest for over a year after his departure from the Middle East does not support a toxic exposure diagnosis.

5.  The applicant's illness does not qualify as trauma.  Although the applicant met the criteria for loss of ADL's, his illness is just that, an illness.  In order to be considered eligible for TSGLI benefits under Part II of the Schedule of Losses the applicant must show that the medical condition/illness that caused him to need assistance is related to either a traumatic event enumerated in Part I, exposure to a radiological, chemical, or biological agent, or accidental ingestion of a contaminated substance. 

6.  Both his primary physician and the Mayo Clinic physician stated they do not know the causative agent for his hepatitis, other than it is not one of the usual causes.  While it is possible - even probable - that he was exposed to some contaminant by virtue of where he was assigned, there is no way to confirm his exposure.  

7.  The applicant has not provided any verifiable evidence that he was exposed to a biological, chemical, or radiological contaminant or weapons materials, a bacterial infection, or accidental ingestion of a contaminated substance.

8.  Without the ability to verify that the applicant was exposed to or ingested some type of contaminant, and that such exposure occurred within the scope of the provisions of TSGLI parameters, there is insufficient evidence on which to base a favorable decision. 


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 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)                                         AR20100022113



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022113



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1