BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110021033 


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, in effect, approval of his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim.

2.  The applicant states he was injured, on 27 July 2007 during Operation Iraqi Freedom (OIF).  He incurred a loss on 19 July 2008 as a result of debilitating pain and he was ordered to bed rest for approximately 3 months.  During those months he was unable to bathe, clothe, toilet, or sleep without the assistance of another person.  He was under his doctor's care for medical treatment during this time and he received a permanent profile.  Due to his loss on 19 July 2008 he was unable to work and he had to pay out of pocket costs for his medical care.

3.  The applicant provides:

* Two self-authored statements
* Affidavit from spouse, dated 20 November 2011
* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 26 July 2007
* DA Forms 689 (Individual Sick Slip), dated 29 July 2007 and 19 July 2008
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 19 July 2008
* DA Forms 3349 (Physical Profile), dated 19 July 2008 and 23 October 2011
* Saint Mary's Neuroscience Program letter, dated 11 September 2008
* Back in Motion Physical Therapy letter, dated 31 October 2008
* Physical Restrictions and Limitations Form (Physical Profile Worksheet), dated 13 April 2009
* TSGLI application
* Prudential letter, dated 27 January 2011
* Saint Mary's Neuroscience Program letter, dated 17 February 2011
* 2 memoranda, dated March 2011
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 February 2011
* TSGLI frequently asked questions and information

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the Michigan Army National Guard (MIARNG) on 3 December 2005.  He currently holds the area of concentration of 31A (Military Police) and he is serving in the rank/grade of first lieutenant (1LT)/O-2.

2.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty, on 25 July 2006, he served in Iraq from 
20 October 2006 to 11 October 2007, and he was honorably released from active duty on 19 November 2007 at the completion of required active service.

3.  He provided an SF 600, dated 26 July 2007.  The form stated a mortar round exploded approximately 10 meters away from him; he was wearing earplugs.  He experienced some nausea but it passed before he was seen by medical personnel.  He was suffering from head and ear pain and a loss of balance.  He was diagnosed with a blast injury to his right ear and given Motrin and Tramadol for pain.

4.  He provided a DA Form 689, dated 29 July 2007.  The form shows he was given light duty for 72 hours and he was not permitted to conduct physical training, lift over 25 pounds, or to work in the heat during this period.

5.  He provided a DA Form 2173, dated 19 July 2008.  This form states he had a previous Line of Duty (LOD) from an injury he sustained from a blast injury in Iraq and he has suffered from lower back pain since that time.

6.  He provided a DA Form 689, dated 19 July 2008, that states "see profile," and recommended placement on quarters off base.


7.  He provided a DA Form 3349, dated 19 July 2008, that corresponds to the
DA Form 689 and shows he was given a temporary profile that expired on 
19 October 2008.  This form further shows:

* he was able to:

* carry and fire his assigned weapon
* wear his protective mask and all chemical defense equipment
* conduct upper body weight training
* run, walk, bike, and swim at own pace and distance
* lift and carry a maximum weight of 20 pounds for 100 feet
* stand for up to 10 minutes at a time 

* the medical official further recommended:

* comfortable supportive bedding
* avoidance of dangerous machinery
* avoidance of firing a weapon while taking medication

8.  He provided a letter from Saint Mary's Neuroscience Program, dated 
11 September 2008, wherein his doctor stated:

	a.  on 29 July 2007, a mortar shell landed next to the applicant while he was in Iraq causing significant jarring of his body.  The next day he woke up and he had severe low back pain radiating into his bilateral hips and right groin and into his posterior thighs down the midlevel.  He also received an injury to his right shoulder at this time;

	b.  he is currently complaining of severe back pain which limits him from running and walking, his only source of exercise is swimming and he is able to do this quite easily.  He continues to be active with swimming and stays away from any kind of impact sports, such as running; 

	c.  extension is much better than flexation.  Walking and sitting for long periods cause severe discomfort.  He also has interscapular pain and associated headaches.  He has been on home traction as prescribed by the Department of Veterans Affairs (VA) as well as medication.  He has had some physical therapy with little improvement; 

	d.  he complains that his symptoms have changed and now go into his bilateral hips.  He feels his back is getting worse and his legs remain the same.  
He rates his pain as a constant 9 out of 10 on the pain scale.  Walking, sitting, 


and lying down with a pillow between his knees make it better, while walking and sitting make the pain worse.  He has difficulty with constipation, but no bowel or bladder incontinence.

9.  He provided a letter from Back in Motion Physical Therapy, dated 
31 October 2008.  The letter stated he was under the care of Back in Motion Physical Therapy due to low back pain with sciatica.  His physical therapist recommended he abstain from prolonged sitting (greater than 15-20 minutes) where his spine is in a flexed or slouched position as prolonged posturing of his spine in that position would worsen his condition and delay progress.

10.  He provided a Physical Restrictions and Limitations Form, dated 13 April 2009.  This form shows he was diagnosed with severe lower back pain, sciatica from herniated disk, and right shoulder pain.  The form states this condition is permanent.  The form further shows:

* he was able to wear his protective mask and all chemical defense equipment and swim at own pace and distance
* he was not able to bend, stoop, crawl, jump, or run

11.  He provided a letter from Saint Mary's Neuroscience Program, dated 
17 February 2011, wherein his doctor stated:

	a.  on 27 July 2008, he had an MRI that showed injury to the L5-S1 disks, associated broad-based disk bulge eccentric to the right, causing some compression on the right S1 nerve root.  He was diagnosed with discogenic pain from the L5-S1 injury.  He was referred to physical therapy, lumbar spine cortisone injections, and eventually he underwent rhizotomes.  After physical therapy he had some improvement in the right leg pain which later reoccurred.  The back pain was never completely resolved; 

	b.  on 6 July 2009, he received another MRI that shows the injury to L5-S1 with a disk protrusion, degenerative changes have been progressive.  He was reevaluated on 14 April 2010 for continued back problems, degenerative progressive disease from his original injury in 2007 with specific changes at L4-5 and L5-S1; 

	c.  evaluation shows increasing hip problems.  He had another MRI on 
25 August 2010 that shows superior acetabular labral tear and eventually surgery was performed; and 

	d.  his doctor opined the injury he received on 29 July 2007 caused significant injury to his L5-S1 disks, that has continued to degenerate over the past years resulting in chronic low back pain and severe limitations in his activities and daily living.  The doctor further opined the applicant would never attain a normal range of motion and unrestricted activity.

12.  He provided his final LOD determination, dated 15 February 2011, that shows his 29 July 2007 injury was found to be in the LOD.

13.  He provided a DA Form 3349, dated 23 February 2011.  This permanent profile shows he does not meet medical retention standards and he needs to be evaluated by a Medical Evaluation Board (MEB).

14.  He provided his TSGLI application, wherein:

	a.  he stated he was injured in Iraq during an enemy mortar attack on 29 July 2007.  He cannot walk or hear properly out of his right ear and he now requires assistance with activities of daily living (ADL).  As a result, he was incapacitated for 3 months from 19 July 2008 to 19 October 2008.  In addition to this loss he sustained another loss from 1 December 2010 to 3 January 2011;

	b.  he stated he was unable to independently perform the following ADLs:

* unable to bathe independently and required physical and stand by assistance entering and exiting the tub, bathing, balance, and drying his body
* unable to maintain continence independently and required stand by assistance to urinate because he cannot feel the sensation
* unable to dress independently and required physical and stand by assistance putting on pants, shoes, and socks
* unable to toilet independently, required a raised toilet seat, physical and stand-by assistance going to and from the toilet, getting his clothes off and on, defacation, and cleaning himself
* unable to transfer independently and required physical assistance to move into or out of bed

	c.  his doctor, Dr. TJQ, stated the applicant was bedridden from July through October 2008 and still has problems as a result of the blast injury he incurred.  Dr. TJQ indicated that he had not observed the applicants loss, but reviewed his medical records.  Dr. TJQ further stated:

* the applicant was completely dependent on another person to get on and off the toilet, wiping himself, and performing associated personal hygiene from 19 July 2008 to 1 February 2011
* the applicant was completely dependent on another person for getting in and out of bed and chairs beginning on 19 July 2008 (no end date was listed)

	d.  his pain management doctor, Dr. TMB, mentioned his injuries and treatment but did not address any ADL issues.

15.  He provided a letter from Prudential, Office of Servicemembers' Group Life Insurance, dated 27 January 2011, wherein his claim for TSGLI was denied.  The letter stated his claim for hearing in his right ear, hospitalization due to other traumatic injuries, and the loss of ADLs due to TBI for 90 days and other traumatic injuries for 120 days could not be approved.  The letter further stated:

* his loss did not occur within the prescribed time period defined by regulation
* to be eligible for TSGLI payment, his loss must have occurred within 730 days of the traumatic event
* evidence indicated his loss occurred over 730 days beyond the traumatic event dated October 2010

16.  He provided two self-authored statements wherein he essentially argued that the loss he incurred in 2008 and was within the appropriate timeframe to claim compensation of loss; however, concedes that the loss incurred in 2010 was not within the established time limits.  He further stated the medical documentation he provided should be sufficient to grant his claim even though not all of his limitations were documented.

17.  The applicant's TSGLI claim was denied by the U.S. Army Human Resources Command (HRC) on the following dates:

	a.  27 January 2011 and 23 May 2011.  Both claims were for a period of ADL loss from July - October 2008.  The only medical documentation from the period of claimed loss is a detailed consultation from the Saint Mary's Neurosurgery Program.  The description of the applicant's activities, condition, and physical findings in this consultation are not at all consistent with impairment to the level of ADL loss.  There is no other evidence of ADL impairment within 2 years of injury, nor is the injury consistent with ADL loss;

	b.  14 July 2011.  In this appeal the claim was for ADL loss from 28 October 2010 to 5 December 2010, well beyond the 730 day limit for a qualifying loss.  No additional clinical information concerning the previously claimed loss was provided.  No qualifying scheduled loss could be found in the claim; and


	c.  18 October 2011.  In this congressional appeal, the applicant again claimed ADL loss from July-October 2008.  A statement from Saint Mary's Neurosurgery Program indicated the applicant was referred for extensive physical therapy during that period.  The records from that treatment period have been absent from the applicant's current and previous claims.  There has been no additional evidence provided to support the loss claim.

18.  He provides a sworn affidavit, dated 30 November 2011, wherein his spouse asserts she was the applicant's care from July - October 2008.  She claims she dressed, bathed, toileted, and adjusted him in bed during this period of time.

19.  Public Law 109-13, signed by the President on May 11, 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 (DOD).  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 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 OIF and Operation Enduring Freedom (OEF) 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 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 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 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, total and permanent loss of hearing in one or both ears, loss of speech, loss of thumb and index finger of the same hand by severance at or above the metacarpo-phalandeal joints, quadriplegia, paraplegia or hemiplegic, third (3rd) degree or worse burns covering 30 percent (%) of body or 30% of the face, and coma or traumatic brain injury.


21.  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.  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.  TSGLI claims won't be approved without a certification from a healthcare provider.  In addition, claim forms must be accompanied by documentation that supports the healthcare provider's evaluation of the Soldier's injuries.  The following table contains the TSGLI schedule of losses for loss of ADLs.

Loss
Payment Amount
Traumatic injury resulting in the inability to perform at least 2 of the ADLs
At 30th consecutive days of ADL loss
$25, 000.00
At 60th consecutive days of ADL loss
An additional $25,000.00
At 90th consecutive days of ADL loss
An additional $25,000.00
At 120th consecutive days of ADL loss
An additional $25,000.00
22.  As the original program was being implemented, the Department of Veterans Affairs (VA) announced it would initiate a Year One Review of TSGLI.  This review would be undertaken to assure the TSGLI program was meeting its intended purpose, all appropriate conditions were being covered, and the program was operating efficiently and effectively.  The VA wanted to ensure the TSGLI program was fulfilling its mission to provide short-term financial assistance to severely-injured service members and their families and to improve the administration of the program.  The VA, in cooperation with the DOD, undertook a complete evaluation of the losses covered by the TSGLI program as well as the definitions of eligibility.  They met with and requested information from a variety of medical experts, performed independent research, made site visits to medical treatment facilities, had discussions with advocacy groups and case managers, received input from the claims processors in the branches of service, and conducted a comprehensive analysis of over 200 completed cases.  Since TSGLI was broadly modeled after Accidental Death and Dismemberment (AD&D) benefits in the commercial insurance industry, the VA also examined industry trends relating to AD&D benefits over the last 2 years.

23.  The TSGLI legislation mandated coverage of certain specific losses:  the total and permanent loss of sight, speech or hearing, amputation of hand or foot, loss of thumb and index finger, quadriplegia, paraplegia, or hemiplegia, burns, coma, or the inability to carry out the ADLs resulting from traumatic injury to the 


brain.  The legislation also authorized the Secretary of the VA, in collaboration with the Secretary of Defense, to prescribe additional losses.  Selected program design changes were made part of the TSGLI regulation changes, which became effective on 26 November 26 2008.

24.  To be eligible for payment of TSGLI, a Soldier must meet all of the prerequisite requirements which include being insured by SGLI when they experienced the traumatic event if injured on or after 1 December 2005.  For those injured between 7 October 2001 and 30 November 2005, SGLI coverage is not required to be eligible for TSGL; however, the Soldier must have incurred a scheduled loss and that loss must be a direct result of a traumatic injury, must have suffered the traumatic injury prior to midnight of the day they separated from the uniformed services, must have suffered a scheduled loss within 2 years (730 days) of the traumatic injury, and must have survived for a period of not less than seven full days from the date of the traumatic injury.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the ADL loss, by law, for ADL loss to be covered, the loss must be for at least 30 days, the member must require assistance to perform two of six ADLs, the ADL loss must be certified by a healthcare provider and must be substantiated by appropriate documentation such as occupational therapy/
physical therapy reports, discharge summaries and other medical documentation.

	a.  The applicant 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.  The individual is considered to need assistance only if he or she requires physical (hands-on), stand-by (within arm’s reach), or verbal (must be instructed because of cognitive impairment) assistance, without which they would be incapable of performing the activity.

	b.  TSGLI analysts strive to apply a "reasonable person" standard to each claim with a bias in favor of the claimant while still maintaining a high degree of internal consistency among similar claims.  

2.  The applicant's TSGLI claim for ADL loss from 19 July 2008 to 19 October 2008 occurred 356 days from the date of his injury and; therefore, met the time limitation of 730 days.  However, the medical documentation he provided does not support ADL loss.

	a.  The 2008 letter from Saint Mary's Neuroscience Program stated the applicant was actively swimming, conducting physical therapy, and he had no bowel or bladder incontinence.  This is not consistent with the medical findings or statements on his TSGLI application.

	b.  Additionally, although the TSGLI application he submitted contained comments referencing his loss of ADLs he failed to meet the additional criteria of accompanying the claim forms with documentation that supported the healthcare provider's evaluation of his injuries to support ADL loss.

3.  The applicant's TSGLI claim for ADL loss from 28 October 2010 to 
5 December 2010 occurred 1,187 days from the date of his injury; therefore, he did not meet the time limitation of 730 days.

4.  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)                                         AR20110021033



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ABCMR Record of Proceedings (cont)                                         AR20110021033



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