IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20100025238 


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 reconsideration of her Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim of being completely dependent on another person for completion of three activities of daily living (ADL) (dressing, eating, and bathing) for 30 days.  

2.  She states, in effect, that she is submitting additional documentation to support her request.  She states that she was denied TSGLI benefits because she was placed on a temporary profile that permitted walking, biking, and swimming at her own pace, during the period of her ADL for 30 days.  She states that the temporary profile was a reference point to indicate temporary profile limitations.  She was placed on permanent profile once her Medical Evaluation Board (MEB) completed its medical evaluation.  She states that she was under a medical review during the periods June 2006, October 2006, and October 2007, which was the normal military medical protocol, pending Physical Evaluation Board (PEB) findings.  

3.  She provides:

* a DD Form 3349 (Physical Profile), dated 11 December 2007
* a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
17 August 2010




* U.S. Army Physical Disability Agency (USAPDA) Orders D229-21, dated 17 August 2010
* 26 pages of Department of Veterans Affairs (DVA) medical documents (progress notes and follow-up visits)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100001037, on 10 August 2010.

2.  The applicant submitted a DD Form 199, USAPDA Orders D229-21, and 
26 pages of DVA medical documents, which were not previously considered by the Board; therefore, this new evidence warrants reconsideration by the Board.

3.  She enlisted in the U.S. Army Reserve (USAR) on 18 July 1975.  She was ordered to active duty in support of Operation Iraqi Freedom on 19 December 2004.  She was promoted to the rank and pay grade of first sergeant (1SG)/E-8. 

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 February 2006, indicates that on 26 December 2005 she slipped and injured her lower back while serving in Afghanistan.  

5.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 
6 March 2006, shows she was seen for lower back pain.  No lower back pain radiating.  Lower back pain is worse in the morning, worsens with sitting in a car, and when lying down with leg straight.  It is better with flexed leg.  The physician released her without limitations.

6.  Her MEB proceedings are not available for the Board to review.  However, U.S. Army Human Resources Command (USAHRC) Orders, dated 13 March 2006, show she was retained on active duty and assigned to the Medical Holding Company, Fort Benning, GA for medical retention processing.
   
7.  A "Certification of Traumatic Injury Protection (TSGLI)," Part B, dated 7 May 2006, shows a military physician stated the applicant could not independently perform dressing, bathing, toileting, and transferring for 30 days.




8.  The USAPDA, TSGLI Branch provided a summary of her TSGLI ADL claims that show:

	a.  Her first TSGLI claim for ADL losses for 30 days due to a fall and lower back pain was not supported by the evidence and her claim was denied and a disapproval letter was sent to her on 13 June 2006.

	b.  Her TSGLI claim was reconsidered on 25 September 2006 and the medical documents she provided did not support ADL loss for 30 days.  Her claim was denied and a disapproval letter was sent to her on 5 October 2006.

9.  A memorandum, dated 5 June 2007, shows she was treated for migraine headaches.  The physician gave her a physical profile restricting her from running, lifting over 10 pounds, doing sit-ups, and jumping.  She was also limited to walking, biking or swimming at her own pace.

10.  The USAPDA, TSGLI Branch indicated she submitted an appeal to her TSGLI claim on 16 October 2007, in which she again claimed ADL losses for 
30 days.  “Her appeal was reviewed by our in house physician who stated that her claim should be denied because the Soldier was on a 90 day profile that permitted walking, biking and swimming at her own pace.”  Her claim was denied and a disapproval letter was sent to her on 10 December 2007.

11.  She provided a DD Form 3349, dated 11 December 2007, which shows she was issued a permanent physical profile for “Low back, bilateral knee and foot pain.  Headache, Traumatic Brain Injury, Posttraumatic Stress Disorder and Asthma.  Refractive error.”
   
12.  Her initial informal PEB proceedings are not available for the Board to review.  

13.  On 28 April 2008, she was retired from active duty by reason of temporary physical disability.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably retired on 28 April 2008 in accordance with paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary physical disability. She was placed on the temporary disability retired list (TDRL) on 29 April 2008.

14.  The USAPDA, TSGLI Branch accepted a fourth ADL claim from her on 
27 March 2009; however, under TSGLI guidance her fourth claim should have been forwarded to the ABCMR because she already had three disapprovals.  The claim was also for 30 days of ADL loss for her fall and back pain.  Medical documents did not support 30 days of ADL loss.  Her claim was denied and a disapproval letter was sent to her on 18 May 2009.

15.  She provided 26 pages of DVA medical progress notes and follow-up visits that show she received neuropsychology treatment from November 2007 through May 2010.  The medical documents show that she was given a complete neuropsychology assessment.

16.  She provided a DA Form 199 that shows her initial informal PEB was reconsidered on 26 July 2010.  The reconsideration was based on an MEB addendum to the original MEB Psychiatrist's Evaluation.  An MEB addendum from the DVA references mental health clinic notes with dates from April 2009 through March 2010 and a neuropsychology assessment on 27 April 2010.  The informal reconsideration PEB determined the applicant was unfit for service and granted her a combined disability rating of 90 percent for anxiety disorder, not otherwise specified (NOS), with comorbid major depressive disorder; residuals of traumatic brain injury; and lumbar degenerative disc disease. 

17.  She provided USAPDA Orders D229-21, dated 17 August 2010, that show she was removed from the TDRL and permanently retired.

18.  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 taken out each month to cover the cost of the TSGLI policy.  Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package.  

19.  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 Operation Iraqi Freedom 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. 

20.  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 percent of body or 30 percent of the face;

	h.  coma or traumatic brain injury; or

	i.  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 
(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 won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  

21.  Army Regulation 15-185 (ABCMR) 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 evidence provided by the applicant was carefully considered.  She contends that her TSGLI was denied because she was placed on temporary profile during the period she claims ADL loss for 30 days.  Even if so, the documents she provided do not support that she was completely dependent on another person to help in performing dressing, bathing, toileting, and transferring for 30 days.  

2.  Public Law 109-13 specifically states “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.”  She has failed to provide such evidence that would support the period of her claim of ADL loss except for the SF 600, which shows she was treated from low back pain and released without limitations prior to her MEB and PEB.  Neither the available records nor the medical documentation she provided establishes a basis to support her request. 

3.  The fact that the applicant required medical care and support immediately following her back and head injury on 26 December 2005, and extensive follow-up care for months afterwards is not disputed.  However, the documentation required to justify a TSGLI payment for loss of ADLs has not been submitted.

4.  In view of the foregoing, there is no basis for granting relief to the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR20100001037, dated 10 August 2010.




      _______ _   _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)                                         AR20100025238



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ABCMR Record of Proceedings (cont)                                         AR20100025238



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