IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110004534 


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 previous request for payment of Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits.

2.  The applicant states he received a traumatic brain injury (TBI) when he was wounded on 27 March 2007 in Iraq.  He has previously applied for TSGLI benefits and has been denied.  However, the Department of Veterans Affairs and civilian doctors have all documented that he received a TBI and did in fact suffer immediate loss of cognitive and physical abilities.  He further states he has remained unable to work, balance, and drive.  His wife still has to help him get dressed and go to the bathroom and has installed shower rails and a chair so he can shower, but he still needs assistance with most things.  He has to wear a pain patch every day just to control the pain in his head so he can remain awake and attempt to function normally.  He is providing a letter from his neurologist that states within 4 to 5 years he will be totally and completely unable to care for himself.  His wife has become so accustomed to caring for his needs and the needs of the whole family that she puts her own colds and illnesses on the back burner because she feels her needs are less important.

3.  As new evidence, the applicant provides a letter from a doctor and five pages of medical progress notes from a second doctor.

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 AR20100016824 on 6 January 2011.

2.  The applicant's records show he enlisted in the Regular Army and held military occupational specialty 11B (Infantryman).  He served in Iraq from 15 October 2003 to 20 October 2004 and was awarded the Purple Heart for a concussion he received from an improvised explosive device (IED) on 14 October 2004.

3.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 September 2005.  He again deployed to Iraq from 3 May 2006 to 14 May 2007.

4.  On 7 November 2007, a medical evaluation board (MEB) convened at Madigan Army Medical Center in Tacoma, WA, and diagnosed him with:

* post-concussive syndrome with associated headaches, cognitive disorder, and balance difficulty
* right ankle instability
* low back pain
* mild hearing loss and tinnitus, bilateral, meets retention standards

5.  The MEB recommended referral to a physical evaluation board (PEB) and the applicant indicated he did not desire to continue on active duty.

6.  On 11 December 2007, a PEB convened at Fort Lewis, WA, and confirmed his three unfitting disabilities.  The PEB recommended placement on the Temporary Disability Retired List (TDRL) with a 40-percent disability rating.

7.  On 7 March 2008, he filed a claim for TSGLI benefits claiming paraplegia.  Paraplegia is defined as the inability to move the lower body or total inability to move both legs and usually the lower part of the trunk, often as a result of disease or injury of the spine.  The applicant's documentation submitted did not support that the Soldier was unable to perform two or more ADL due to TBI or other traumatic injury at a standard that qualified for payment and his request was denied on 18 March 2008 because there was no loss identified.

8.  On 21 March 2008, he was retired and placed on the TDRL in the rank of SSG.  He completed 10 years, 9 months, and 19 days of creditable active service.

9.  He filed a request for reconsideration of TSGLI benefits on 14 April 2008 again claiming paraplegia and again his application was denied for the same reason.
10.  He again filed for reconsideration on 24 April 2008 for the same reason and his application was again denied on 22 May 2008.

11.  On 23 March 2010, he was removed from the TDRL and permanently retired by reason of physical disability with a 40-percent disability rating.  

12.  A letter from Dr. J____ B. M____, Athens Neurology, Athens, TX, undated, stated that the applicant had at least eight prior concussion injuries while in active combat and because of his medical condition he needs maximum assistance with activities of daily living (ADL).

13.  Medical progress notes recorded by Dr. B____ D. W_____, Medical Arts Clinic-Athens, Athens, TX, dated 31 January 2011, stated the applicant needs assistance with ADL.  He was motivated and able to use a powered wheelchair in the house for ADL of feeding, grooming, and toileting.  He was unable to perform bathing/dressing without assistance due to lower back pain caused by an old injury.  Documentation reviewed with this case shows he was first treated for low back pain in December 2001 when he reported he strained his back in the motor pool lifting equipment.

14.  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.  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.  The 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 with an additional $1.00 deducted 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.

15.  There are basic eligibility requirements that must be met in order to be eligible for TSGLI.  All of the following must be met:

	a.  The member must be an active duty or Reserve service member on the date a traumatic event occurs.

	b.  The member must suffer a loss that is a direct result of a traumatic event and no other cause.

	c.  The member must survive for a period of at least 7 full days from the date of the traumatic event.

	d.  The member must suffer a loss covered under the law within 2 years of the traumatic event.

16.  Traumatic injuries covered under TSGLI may include the following types of losses:

	a.  Total and permanent loss of sight in one or both eyes, loss of hand or foot by severance at or above the wrist or ankle, quadriplegia, paraplegia, or hemiplegia, coma or traumatic brain injury.

	b.  Other traumatic injuries resulting in the inability to carry out two of the six ADL which are dressing, bathing, toileting, eating, continence, and transferring.  

17.  TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform two of the six ADL for 30 days or more.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant suffers from the residuals of TBI; however, these conditions are not medically qualifying for TSGLI benefits unless the claimant's disabilities are a direct result of a traumatic event and no other cause and the loss covered under the law is within 2 years of the traumatic event.  

2.  He received a Purple Heart for a concussion due to an IED in Iraq on 14 October 2004.  He continued to serve, being promoted to E-6 in September 2005 and again deploying from May 2006 - May 2007.  In a statement provided by the applicant, Dr. J____ B. M____ stated the applicant had at least eight prior concussion injuries while in active combat.  This was based on information provided to the doctor by the applicant.  There is no evidence the applicant suffered a loss as a direct result of one specific traumatic event or that a covered loss occurred within 2 years of a traumatic event.

3.  The applicant claims loss of ADL, but provides conflicting information and no certified documentation regarding this loss.  He stated he could shower by himself, but he still needs assistance with most things.  Dr. J____ B. M____ stated the applicant needed maximum assistance with ADL including cooking, personal grooming, driving, and management of his finances.  Dr. B____ D. W_____ stated the applicant is able to use a power wheelchair in the house but is unable to bathe/dress without assistance.  The loss of ADL was reported to be due to lower back pain and not due to TBI or as a result of any traumatic event that may have occurred while the applicant was deployed.  In addition, the statements from his doctors are based only on information the applicant provided to them.

4.  There is no evidence in the available records that serve as sufficient evidence and he has not provided sufficient evidence that shows he was completely dependent on someone else to perform two of the six ADL for the required period of time as the result of a traumatic event that would meet the qualifications for TSGLI as set forth by law.

5.  In view of the foregoing, there is no basis to grant the relief requested.

6.  It is unfortunate that the applicant's request could not be granted in this case; however, this by no means diminishes the applicant's dedicated service to and sacrifices for a grateful nation.

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 AR20100016824, dated 6 January 2011.  

      
      
      ____________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)                                         AR20110004534



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ABCMR Record of Proceedings (cont)                                         AR20110004534



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