IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110003444 


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 his Traumatic Service Members’ Group Life Insurance (TSGLI) claim.

2.  The applicant makes no statement, deferring to counsel.

3.  The applicant provides no additional documentation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's military records to show entitlement to an award of at least $100,000 under the provisions of Title 38 U.S. Code, section 1980A and Title 38 Code of Federal Regulations for the loss of two or more activities of daily living due to traumatic brain injury (TBI) and other related injuries for a period of at least 120 days.

2.  Counsel states in pages 2, 3, and 4 of a 19-page brief, essentially the history of the applicant's service and timeliness of his claim submissions:

	a.  The applicant served on active duty as a member of the Army National 
Guard from September 2006 to May 2007.  During this time, he was deployed to Iraq as an infantry Soldier.

	b.  The brief will present facts supporting the applicant's claim for TSGLI benefits and demonstrate that continued denial of such benefits is improper in light of statutory and regulatory authority.
	c.  The applicant's appeal is timely.  He filed in August 2007 and he was denied in October 2007; he filed in February 2008 and was again denied in April 2008; he filed an appeal in April 2010 and was denied in May 2010 because the claim was not supported by the medical evidence.

3.  Counsel states in pages 4 through 10 of his brief the facts of the applicant's case:

	a.  the applicant was injured by an improvised explosive device (IED) while engaged in combat in Iraq on 25 April 2007.  He was medically evacuated from Iraq due to whiplash injuries to his neck, shoulder, and back, and a TBI.

	b.  The applicant's medical records clearly show he was dazed and suffered memory loss after the incident; however, the records are conflicting as to whether he lost consciousness after the blast.

	c.  Following the incident, the applicant was administered the Military Acute Concussion Evaluation and scored a 20.  The next morning his score improved to 28.  During the next 4 weeks the applicant's score steadily dropped to a low of 18 on 28 May 2007.  He was subsequently evacuated to Landstuhl Regional Medical Center in the Federal Republic of Germany and then to Womack Army Medical Center at Fort Bragg, North Carolina.

	d.  In June 2007, the applicant was diagnosed with post-concussion syndrome with an apparent mild complicated TBI.  By December 2007, he was experiencing "give-way weakness all over" with pain in his joints and limited gait due to pain and neck tenderness.  He was referred for further evaluation.

	e.  In February 2008, the examining physician found the applicant's TBI in conjunction with the resulting balance issues, head, neck (particularly the injury to the C6-7 disk) resulted in an inability to perform ADL's.  

	f.  The applicant's spouse submitted a lay statement in February 2008 describing the numerous and continuing difficulties the applicant's injuries caused including his limited motion of the head, neck, and arm, as well as the cognitive difficulties resulting from his TBI.

	g.  The applicant's conditions worsened in April and May 2008 resulting in the recommendation that he begin using a wheelchair.  He had pain in all movement of the neck and right shoulder, with give-way weakness in the right shoulder girdle.  The applicant was ambulating with a cane but required standby guarding.

	h.  On 30 May 2008, a physician opined that the applicant's worsening headache, pain, and cognitive problems left him almost completely incapacitated in ADL's and cognitive function due to pain attributable to his post-concussion/TBI syndrome.

	i.  The Medical Evaluation Board (MEB) found that the applicant did not meet retention standards and referred him to a Physical Evaluation Board (PEB).  He underwent neuropsychological testing which showed 7/10 pain in his head, back, neck, and right shoulder per his wife, and flare-ups to 10/10 when he was under stress, out of his normal routine, or following physical exertion.  He was essentially mute with stuttering upon speaking.  He was able to follow multistep commands; but he was abnormally slow.  He could ambulate a few feet with a single-point cane and standby guarding.  He could transfer from wheelchair to toilet with assistance.

	j.  On 30 June 2008, the applicant was noted as needing assistance with ADLs.  This finding was reiterated in the medical records on 14 and 17 July 2008.  On 26-27 July 2008, he was still practicing his transfer between a wheelchair and the bed.  He was experiencing weakness in his bilateral upper and lower extremities.  He was found to be unresponsive verbally and needed assistance with hygiene, bathroom, and eating functions.  Rolling over in bed required minimal assistance, supine to sitting required moderate assistance, sitting to standing required moderate to maximum assistance, and transferring from chair to bed required moderate assistance.  He had only minimal ability to use his lower extremities to manipulate and move his wheelchair.

	k.  As late as 29 August 2008, the applicant still was unable to perform ADLs and needed contact guard assist to transfer from a sitting to standing position.

	l.  In September 2008, the applicant was presented a Purple Heart for his IED injuries.  In December 2008, the PEB determined he was unfit for duty due to:

* Conversion disorder with motor symptom deficit
* Chronic neck pain associated with degenerative disk disease
* Chronic back pain associated with degenerative changes
* Residuals of TBI, manifested by headaches associated with disequilibrium, visual disturbances and auditory disturbances
* Chronic right shoulder pain due to partial tear of rotator cuff

	m.  In September 2009, the VA awarded the applicant service connection for TBI, cervical and lumbar spine degenerative disk disease, and right shoulder tendon tear.  The VA further noted his continued use of a wheelchair.

	n.  In April 2010, a second medical examiner, who is a certified neurosurgeon, independently concluded the applicant's injuries resulted in ADL loss for a period of time sufficient to qualify for TSGLI payments.  The applicant's combination of impairments including his TBI produced loss of balance, neck, back, and shoulder pain precluded his independent completion of bathing, dressing, and transferring.

4.  Counsel states in pages 10 through 18 of his brief the supporting arguments of the applicant's case:

	a.  Counsel cites Public Law 109-13, wherein the President created the TSGLI program to provide for traumatic injury coverage for members of the uniform services who suffered a qualifying injury and are covered under Servicemembers' Group Life Insurance (SGLI).

	b.  TSGLI coverage provides an insurance benefit for certain scheduled physical losses due to an external force or violence.  To qualify for TSGLI payments, a service member must:

* Suffer from a qualifying injury
* Be enrolled in SGLI at the time of a traumatic event, and the event must have occurred prior to separation
* Survive the traumatic event for a period of 7 days (168 hours)
* Incur the loss within 2 years of the traumatic event

	c.  Counsel argues that the applicant satisfied all four criteria.  For TSGLI purposes the six basic ADLs are eating, bathing, dressing, toileting, transferring, and continence.  To qualify for TSGLI payments the applicant must establish that he requires some form of assistance to perform at least two of the six ADL's.

	d.  Counsel argues that the applicant did all that was required under the TSGLI procedure guidelines and Federal regulations.

	e.  Traumatic injury protection is codified under Title 38 U.S. Code, section 1980A.  In December 2005, the attending physician's duty was to complete Part B [of the claim] and determine whether the injury met the scheduler requirements.  The Secretary of the VA delegated to the medical professional the responsibility to certify a qualifying loss.  In November 2008, the VA revised the TSGLI regulation to include a licensed practitioner of the healing arts acting within the scope of his or her practice.  The Secretary saw fit to broaden the definition in order to encompass a wider range of licensed medical professionals who are qualified to certify eligibility for TSGLI payment.  This rule, adopted without change in June 2009, also stressed that it was the medical professionals' responsibility to certify eligibility for an appropriately covered loss.

	f.  The TSGLI Procedures Guide instructs all veterans that in completing Part B of the application, a medical professional may simply review all available medical records and render an opinion concerning the loss of ADLs.  The medical professional need not have been the veteran's treating physician.

	g.  Regarding Part B of the application, the TSGLI Procedures Guide explicitly demands only that the medical professional determine if the patient's loss meets the definition given.  The medical professional is directed to check the appropriate boxes in Part B of the application to indicate the loss experienced by the applicant; to identify the start and end dates of the applicant's inability to perform the ADL; and, to note the type of assistance required to complete the ADL.

	h.  The applicant followed this instruction and steadfastly maintained that he is due TSGLI payments for his inability to bathe, dress, or transfer independently, which constitute three of the six ADLs.

	i.  Doctor L, who had examined the applicant in December 2007, as part of a neurology consultation, reviewed the applicant's medical file and opined that, as a result of an IED blast, he had difficulty in speech and memory and was unable to fully communicate his thoughts.  He also suffered from chronic neck, back, and right shoulder pain requiring assistance in ADLs, particularly dressing and bathing secondary to C6-7 and rotator cuff injury.  His shoulder and neck injuries required assistance with putting on shirts, pants, and fastening garments.  He also required assistance with transferring.  Due to his disequilibrium, he needed assistance in showering, and as of February 2008, the loss was ongoing.

	j.  In the applicant's April 2010 application, the certifying doctor concluded that the applicant's TBI in conjunction with his neck, back, and shoulder injuries resulting from an IED blast, required standby assistance for showering and transferring and that his continued disequilibrium made these ongoing problems.

	k.  Both medical opinions, based on a review of the applicant's medical records, resulted in similar findings that he had a loss of ADLs caused by the IED blast.  The applications were accompanied by medical records in support of these claims, although that was not a specific requirement to reach a proper resolution on a TSGLI claim.


	l.  The applicant submitted medical evidence demonstrating difficulties in ADLs as early as December 2007.  In April 2008, he reported disequilibrium, headaches, and joint pain, including his neck and back.  His condition deteriorated to the point that his wife had to communicate on his behalf.  He was confined to a wheelchair and needed assistance to transfer.  He continued to experience giveway weakness and needed standby guarding.  His doctor noted that he was almost completely incapacitated in ADLs and cognitive function due to pain.  Lay statements are consistent with these observed symptoms.

	m.  In June 2008, severe cognitive deficits were noted, along with a noticeably atrophying physique.  He continued to require assistance with ADLs, a finding repeated throughout July 2008.  His weakness in both upper and lower extremities required assistance with hygiene, bathroom, and eating.  His inability carried over into August 2008 where medical records confirm the applicant was still unable to perform ADLs and needed contact guard assist to transfer from sitting to standing position.  These conditions continue as confirmed in the VA decision dated September 2009.

	n.  Medical professionals, with years of training, reviewed this evidence and found it sufficient for them to opine that the applicant's injuries result in ADL loss.  It is unclear what could be produced beyond the lay statements, periodic ADL assessments, and two medical opinions.  Continued denial of the applicant's claim is in error.

	o.  The TSGLI denial is in error because it required a higher standard than required to prevail in a claim by demanding more than required by the TSGLI Procedures Guide and controlling regulations.  The April 2008 denial letter stated that there is insufficient medical documentation to support that the servicemember could not perform the ADLs independently.  The medical documentation that accompanies a submitted TSGLI claim form must address the specific injury/injuries sustained and document a timeline of treatment up to the first 120 days of recovery.  The specified timeline of treatment would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, and registered nurses that document capabilities (or lack thereof) to performing six ADLs.  To be eligible for TSGLI compensation, the medical providers must submit documentation that demonstrates a servicemember's inability to independently perform at least two of the six ADLs.

	p.  The May 2010 Appeals Board's denial made the same error by denying the claim because the records submitted did not indicate impairment of ADLs.


	q.  This inconsistent misstatement of the record and governing rules raises further concerns.  The applicant has provided the only documentation created.  There is no indication that he has lied about his condition.  There is no indication that the two independent medical professionals were disingenuous with their opinions.  There is no reference to withheld medical records.  Nonetheless, the TSGLI Appeals Board seeks production of documents that are not generally created in the provision of medical care.  It appears that the board denied the applicant's TSGLI claim because meticulous notes were not created on a daily basis, faulting the applicant for the medical professions' standard operating procedure.

	r.  This failing of medical professionals to keep daily notes as to ADL loss necessarily begs the question, how much evidence is sufficient to support a claim?  This is pertinent because without a set standard, the TSGLI Appeals Board is free to continue moving the threshold farther out of the reach of applicants.  As demonstrated, there is no requirement that the applicant supply documentation of ADL loss beyond confirmation by a medical professional.  Asking for more than this may not rise to the level of a constitutional violation, but failure to articulate the applicant's burden of proof raises serious concerns.

	s.  The Army's TSGLI program has not explained to the applicant the burden of proof he must surmount to prevail in a TSGLI claim.  Without such a standard, any decision is likely to be arbitrary and capricious, wholly dependent on which adjudicator reviews the file.

	t.  Although not codified, the applicant argues that the TSGLI Appeals Board should have applied a preponderance of the evidence standard to the claim.  This standard has been adopted by the Department of the Navy in SECNAV INSTRUCTION 1770.4, Secretary of the Navy TSGLI Implementation Guidance and Appeals Process.

	u.  Had the preponderance of evidence standard been applied the applicant would have prevailed in his claim.  He has:

* Complied with all articulated TSGLI standards
* Provided medical documentations of his ADL loss
* Provided two medical opinions confirming that his IED induced injuries resulted in loss of ADLs

	v.  It is clear that the applicant has supplied sufficient information to justify a grant of benefits.


5.  Counsel provides the following eleven tabbed enclosures:

* Exhibit 1:  Claim for Traumatic Injury Protection (TSGLI) Payment, pages 4 through 13, dated 31 August 2007
* Exhibit 2:  Letter from the Office of SGLI to the applicant, dated 
11 October 2007
* Exhibit 3:  A blank copy of the 13-page instruction/claim form for TSGLI payment
* Exhibit 4:  Claim for Traumatic Injury Protection (TSGLI) Payment, pages 4 through 12, dated 5 February 2008
* Exhibit 5:  Letter from the TSGLI Division, U.S. Army Physical Disability Agency, dated 29 April 2008
* Exhibit 6:  A blank copy of the 14 page Application for TSGLI Benefits
* Exhibit 7:  An Application for TSGLI Benefits with Part B completed, dated 5 April 2010
* Exhibit 8:  Letter from the Chief, TSGLI, U.S. Army Human Resources Command, dated 20 May 2010
* Exhibit 9:  Unsorted and un-annotated medical records (75 sheets) from the military service, and the Department of Veterans Affairs (VA); a DA Form 199 (PEB), dated 5 November 2008; Permanent Orders 246-10, dated 2 September 2008 awarding the applicant the Purple Heart; a TDRL Medical/Questionnaire Worksheet, dated 16 December 2009; and a VA Rating Decision, dated 8 September 2009
* Exhibit 10:  A Procedural Guide - Traumatic Injury Protection Under SGLI (71 pages), dated 5 August 2009
* Exhibit 11:  VA Fast Letter 10-49, Authorization to Disclose Personal Information to a Third Party, date 3 November 2010; and SECNAVINST 1770.4 - Procedures for Appeals of Eligibility Determinations to the TSGLI Appeals Board of the Department of the Navy Under 38 U.S.C., section 1980A and 38 C.F.R. 9.20

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the U.S. Army National Guard.  He entered active duty in September 2006 and deployed to Iraq in support of Operation Iraqi Freedom.  His military occupational specialty was 11B (Infantryman).

2.  On 25 April 2007, the applicant was wounded by an IED while riding in a vehicle.  He suffered a TBI as well as chronic neck, back and shoulder pain.

3.  On 13 August 2007, the applicant initiated Part A of the application to request  TSGLI benefits.  On 31 August 2007, a medical professional, who had not 
observed the applicant's loss but did review his medical records, completed Part B.  He opined that the applicant had suffered a loss of speech due to a TBI, effective 25 April 2007, due to an IED blast resulting in post traumatic headaches, mild cognitive impairment, partial rotator cuff tear in the right shoulder, continual pain in neck and shoulder, affecting his ability to participate in activities.  

4.  On 11 October 2007, the Office of SGLI, the administrator of the TSGLI Program, sent the applicant a letter informing him that his TSGLI case was not approved because the program guidelines do not support mental/psychological impairment resulting from TBI.  The applicant was informed of his right to appeal this decision.

5.  In February 2008, the applicant submitted his TSGLI reconsideration request. On 5 February 2008, a medical professional with the VA in Orlando, Florida, who had not observed the applicant's loss but did review his medical records, completed Part B.  He opined that, on 25 April 2007, due to an IED blast, the applicant suffered a loss of speech and spent less than 15 days in a coma due to a TBI resulting in difficulty with speech and memory.  He was not able to fully communicate his thoughts.  He also suffered neck, back, and right shoulder pain, requiring assistance with the three ADLs listed below.  The physician indicated he did not indicate a beginning or ending date for these ADLs, stating that the conditions were on-going.

* Bathing:  particularly during showering due to a loss of balance
* Dressing:  not able to raise arm above shoulder or bend neck requiring assistance with pulling on shirt/pants and fastening buttons or zippers
* Transfer:  neck and back impairs ability to get in and out of bed/chair without assistance.  He could use cane, crutches, etc.

6.  On 29 April 2008, the TSGLI Insurance Division, U.S. Army Physical Disability Agency, sent the applicant a letter informing him that his TSGLI reconsideration request was not approved because the medical documentation did not support the servicemember's claim that he could not perform ADLs independently.  He was advised of his right to submit an appeal.

7.  The applicant submitted a TSGLI appeal utilizing a newly revised application.  Part B (To be completed by a medical professional who is a licensed practitioner of the healing arts acting within the scope of his/her practice) of the applicant’s Certification of Traumatic Injury Protection [TSGLI] form, dated 5 April 2010, shows the applicant’s attending physician (neurosurgery) had examined the applicant and reviewed his pertinent medical records.  He had not observed the applicant's loss of ADLs.  The physician indicated that the applicant was unable to perform the ADLs listed below beginning on 25 April 2007 due to an IED explosion resulting in a TBI as well as chronic neck, back and shoulder pain.  No 
ending date was stated, which indicated the condition was still on-going at the time:

   a.  bathing due to a loss of balance he cannot reliably shower independently and required standby assistance;
   
   b.  dressing due to a right rotator cuff tear, he cannot pull on shirts or sweaters or make fine movements such as buttoning clothes without hands-on assistance; and 

   c.  transferring as a result of a combination of impairments from TBI as well as neck, back, and shoulder/rotator cuff limitations, he cannot transfer in and out of beds and chairs without hands-on and/or standby assistance.

8.  On 20 May 2010, the Chief, TSGLI Branch, U.S. Army Human Resources Command sent the applicant a letter informing him that his appeal was denied because the records that were submitted did not show an impairment of ADLs.  He was advised of his right to appeal to this Board.

9.  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 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.  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 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.
10.  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 medical 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence provided by the applicant was carefully considered.  The applicant's disagreement with responses to his TSGLI claims were considered; however, the evidence of record clearly shows that although he suffered traumatic injuries as a result of an IED explosion while serving in Iraq, the information provided by the applicant does not reach the level of appropriate documentation such as Occupational/Physical Therapy Reports, Patient Discharge Summaries, or other pertinent medical documents demonstrating his ADL loss.  

2.  The physician statements in Part B of his TSGLI claim form indicating that he could not perform bathing, dressing, or transferring independently is not corroborated by information in the available medical records.  While it is not disputed that the applicant required medical care and support immediately following his wounding on 25 April 2007, and extensive follow-up care for months afterwards, documentation required to justify a TSGLI payment for loss of ADLs has not been submitted.

3.  The applicant has not provided sufficient documentation to support his contention that his TSGLI claims were improperly disallowed.  Neither the available records nor the medical documentation the applicant provided establishes a basis to support his request.

4.  While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

5.  Counsel's contention that the applicant is being required to submit documentation that exceeds the requirements of law or regulation has been noted.  While law or regulation may not expressly provide for a review of medical records to further verify the physician's certification, such review is not prohibited.

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)                                         AR20110003444



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ABCMR Record of Proceedings (cont)                                         AR20110003444



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