IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110012779 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reversal of the applicant's denied Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim of $100,000 for 120 days loss of ability to independently perform ADLs (Activities of Daily Living).

2.  Counsel states the applicant's traumatic injury occurred during convoy training in July 2007.  The resulting August 2008 surgery is the basis of this TSGLI claim and appeal.  Counsel gives a procedural background and standard review and a statement of fact.  He states:

	a.  During a training exercise in preparation for deployment to Iraq, the tactical vehicle the applicant was riding in hit a bump, jamming his left knee into a bolt protruding from the seat in front of him.  Later that month, in Kuwait, his knee went completely out and he was placed on crutches.  Doctors suspected osteochondritis dissecans of the medial femoral condyle and medial meniscus tear.  He was evacuated to Landstuhl Regional Medical Center (LRMC) in Germany on 12 November 2007.  He did not receive a complete diagnosis until June 2008 when he returned to Fort Bragg, NC, and he was admitted to the Warrior Transition Unit (WTU).  His condition continued to worsen.  His doctor recommended and he agreed to proceed with arthroscopy with possible 

osteochondral lesion repair.  The surgery was scheduled for 6 August 2008 and he began preparing for his incapacitation.

	b.  His medical records contain notations from licensed medical providers illustrating his inability to independently perform ADLs and a timeline for treatment including physical therapy.  His case manager indicated that a sergeant would provide him with transportation to and from surgery.  The surgery was more difficult and took longer than expected.  Doctors indicated there was some fragmentation at the osteochondritis defect.  He was subsequently approved for 30 days of convalescent leave on the day of the surgery with no weight bearing.  He was discharged from the hospital in a knee immobilizer on
6 August 2008.

	c.  After surgery, his friends and his then spouse assisted him with transportation and other needs.  At the time, he required assistance getting in and out of the bed, bathroom, commode, and vehicle.  He was told not to leave his quarters or remove the dressing or brace until his post-operative follow-up appointment.  He was confined to his quarters in the care of his spouse.  He was unable to perform even the mild duties of his job at the WTU.  He was released to his home in Alabama into the care of his spouse.  He then underwent 12 sessions of physical therapy between August and October 2009.

	d.  He was approved for a 30-day extension of his convalescent leave on 5 September 2009.  He was still unable to perform even light duties and remained confined in his home, assisted by his spouse.  He was approved yet for 30 more days of convalescent leave on 5 October 2008.  He and his spouse returned to Fort Bragg on 6 November 2008 and she continued to assist him until 14 November 2008.  Additionally, from 15 November to 17 December 2008, he continued to require assistance and received it from a sergeant major who was staying across the hall at the Landmark Hotel.

	e.  He again received treatment at Pinehurst Surgical where the doctors referenced his original surgery.  He was instructed to continue to elevate, ice, and use anti-inflammatory medication for swelling and pain and use crutches for ambulating to reduce the pain.  His knee problems remained severe even after his August 2009 surgery and additional physical therapy and corticosteroid knee injections.  He finally underwent total knee replacement surgery on 22 September 2009.  He also underwent another period of physical therapy for
2 more months. 

	f.  The Army denied his TSGLI claim on four separate occasions.  The decisions were unjust and unfair because there is sufficient evidence to support his inability to perform at least two out the seven ADLs for 120 days, a covered loss under the TSGLI program.  Specifically:

* the applicant's inability to bathe, toilet, and transfer independently for at least 120 days entitle him to $100,000 of TSGLI benefits
* his ADL loss is supported by medical documentation
* his occasional use of crutches should not be sufficient evidence to deny him the claim
* the documentation supporting the ADL loss was within 730 days of his injury

3.  Counsel provides:

* Exhibit A:  Applicant's most recent TSGLI application
* Exhibit B:  Dates of submissions and denials
* Exhibit C:  TSGLI denial letters
* Exhibit D:  Letters of support of ADL loss
* Exhibit E:  Medical summary
* Exhibit F:  Service records, work notes, miscellaneous medical records
* Exhibit G:  Pinehurst Surgical medical records
* Exhibit H:  Service chronological records of medical care

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Medical Services Corps second lieutenant in the Alabama Army National Guard and he executed an oath of office on 20 October 1994.  He served in a variety of stateside assignments.  He was promoted to major on 11 April 2007.

2.  On 30 March 2007, the U.S. Army Human Resources Command, Fort Knox, KY (HRC-KNX), published orders ordering him to active duty in support of Operation Iraqi Freedom.

3.  On 7 June 2007, he was reassigned from the 7233rd Medical Support Unit, Tuskegee, AL, to the 316th Combat Support Command, Caraopolis, PA, and attached to the 316th Sustainment Command (Expeditionary).

4.  His official record contains a DA Form 2173 (Statement of Medical History), dated 18 June 2008, that shows on an unknown date in June 2007, during mobilization for deployment in support of OIF, the applicant reported a screw/bolt 

from the seat of his tactical vehicle jamming into his left knee when the vehicle hit a bump.  He reported swelling and pain.  The form shows he was diagnosed with knee osteochondritis dissecans.  He was examined on 12 June 2008 and his injury was determined to be in the line of duty on 23 June 2008.

5.  It appears he deployed to Kuwait on an unknown date in 2007 and while in Kuwait, he experienced knee pain.  He was initially prescribed pain medication but as his pain persisted, he was evacuated to LRMC in Germany.  He was seen at LRMC where he related he had had many years of ball playing experience and he had knee injuries in the past but never requiring surgery.  He was initially diagnosed with tricompartmental arthritis of the left knee.

6.  He returned to Iraq in November 2007 but he continued to suffer from joint pain localized at the knee.  As his pain persisted, he was authorized departure from theater in or around April 2008 and he was recommended for enrollment in the WTU, Fort Knox.

7.  On 7 October 2008, HRC-KNX published orders retaining him on active duty effective 1 October 2008 with assignment to the WTU, Fort Bragg, to participate in the Reserve Component Warrior in Transition Medical Retention Processing program for completion of medical care and treatment.

8.  An initial examination at Fort Bragg, demonstrated osteochondritis dissecans involving the medial femoral condyle at the lateral side.  A subsequent magnetic resonance imaging (MRI) showed a large OCD (osteochondritis dissecans) lesion.  He was issued a physical profile that restricted the use of his lower extremities.

9.  He underwent arthroscopic surgery at Pinehurst Surgery Center on 4 August 2008 and upon discharge with a knee immobilizer and crutches, he was given
30 days of convalescent leave.  Friends assisted him with transportation.

10.  He returned to Pinehurst Surgical Center after it was determined the physician had placed a screw in the femur which split the bone and the physician was unable to remove the hardware.  The option of knee arthroplasty was discussed but the applicant preferred knee replacement.  He was authorized two extensions of his convalescent leave in increments of 30 days each.

11.  He continued to visit the Pinehurst Surgical Center for follow-up and he ultimately underwent left total knee arthroplasty in September 2009.

12.  His original TSGLI application and subsequent appeals are not available for review with this case.  However, his record contains the following documents pertaining to his TSGLI claim or denial:

	a.  A letter from the Office of Servicemember's Group Life Insurance, Livingston, NJ, dated 25 November 2009, informing him that his claim for hospitalization due to other traumatic injury (OTI) and loss of activities due to OTI could not be approved because his loss did not occur within the time period defined by law and regulation.  In order to be eligible for TSGLI, the loss must have occurred within 730 days of the traumatic event.  The evidence he submitted shows his injury occurred in June 2007 and the surgery occurred in September 2009, over 730 days after the traumatic event.

	b.  A letter from HRC, dated 22 January 2010, informing him that the Army TSGLI Program Office reconsidered the decision of his previous claim but was unable to overturn the previous adjudication.  The loss did not occur within the prescribed period.

	c.  The applicant's TSGLI application, dated 11 March 2010, wherein his claim was based on OTI.  He claimed that between 6 August 2008 and 17 December 2008, he was:

* unable to bathe independently (stand-by assistance), needed assistance to get in/out of shower and bathroom
* unable to maintain continence independently (hands-on physical assistance), needed assistance getting in/out of vehicle
* unable to toilet independently (stand-by assistance within reach), needed assistance getting on/off commode 
* unable to transfer independently (stand-by assistance within reach), needed assistance getting in/out of bed

A physician certified this form and stated the applicant was first seen on 23 July 2008 for a knee injury.  He had a knee arthroscopy on 6 August 2008.  He continued to have pain and difficulty ambulating, requiring arthroplasty on 22 September 2009.  He had extensive physical therapy in an inpatient and outpatient status.  He was out of work from 22 September to 22 November 2009. He was then given work restrictions.

	d.  A letter from HRC, dated 18 May 2010, informing him that a second reconsideration was conducted and his claim was not approved because the medical documentation did not support that he was hospitalized for 15 or more consecutive days.  Additionally, the described event and medical treatment that falls within the 730 days date of injury is not compatible with the claimed loss.  Any other claimed OTI ADLs loss falls outside the 730 day qualifying period.

	e.  A letter from HRC, dated 21 July 2010, notifying him that the TSGLI Program Office received his appeal; however, after reviewing the claim and supporting documentation, that office was unable to overturn the previous decision.  The documentation submitted to support the claimed loss of ADLs was not within 2 years/730 days of the injury.

13.  Public Law 109-13, 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.  A qualifying traumatic injury is an injury or loss caused by a traumatic event or a condition whose cause can be directly linked to a traumatic event.  The official HRC TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II.  Each loss has a corresponding payment amount.

	a.  Part I loss includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, and facial reconstruction.

	b.  Part II loss includes traumatic injuries resulting in the inability to perform at least two ADLs for 30 or more consecutive days and hospitalization due to a traumatic injury and OTI 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 two of the six ADLs 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 documents demonstrating the injury type and duration of ADL loss.

14.  A member who is hospitalized for 15 consecutive days as the result of a traumatic injury is eligible for a $25,000 payment under TSGLI.  The count of consecutive hospitalization days begins when the injured member is transported to the hospital, includes the day of admission, continues through subsequent transfers from one hospital to another, and includes the day of discharge.  If a 

member is hospitalized for 15 consecutive days, the member's hospitalization takes the place of the first ADL milestone payment only.  The 15 days of hospitalization cannot be substituted for any other ADL milestone payment.  Payment will be made for the 15-day hospitalization or the first ADL milestone, whichever occurs first.  There are two situations covered by this replacement:  the member is hospitalized due to coma/TBI or the member is hospitalized due to OTI.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was injured in June 2007.  He struck his knee on a bolt in a tactical vehicle during pre-deployment training.  He subsequently deployed but he was plagued by recurring knee pain and swelling.  He underwent conservative treatment in the form of medications and therapy, and knee arthroscopy on 6 August 2008.  He ultimately underwent arthroplasty on 22 September 2009.  He had extensive physical therapy in an inpatient and outpatient status as well as extended periods of convalescent leave.

2.  Although he had some discomfort, the applicant was able to ambulate and take care of himself during deployment.  His claim for loss of ADLs within the 730-day period allowed would have to be secondary to the arthroscopy.  He first applied for TSGLI benefits for loss of ADLs from August 2009 to November 2009. His claim was denied because the described condition and medical treatment that fell within the 2 years of injury was not compatible with the claimed loss.  The ADL loss after arthroplasty fell outside the 2-year qualifying window.

3.  He submitted another TSGLI claim in December 2009 for loss of ADLs from August 2009 to November 2009.  However, this was also denied because the described condition and medical treatment that fell within the 2 years of injury was not compatible with the claimed loss.  The ADL loss after arthroplasty fell outside the 2-year qualifying window.  He submitted a third and a fourth appeal but did not provide new data to support reversing the original decision.  He received denial letters for both appeals.  

4.  By law and regulation, in order to be eligible for TSGLI benefits for a traumatic injury, the loss must be a direct result of the traumatic event and no other cause and the member must suffer a loss covered under law within 730 days of the traumatic event.  The applicant in this case has not provided sufficient documentation to support his implied contention that his TSGLI claims were improperly disallowed.  Neither the available records nor the medical documentation the applicant provided establish a basis to support his request.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110012779



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ABCMR Record of Proceedings (cont)                                         AR20110012779



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