IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20110021239 


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 states his claim was denied in error according to an incorrect application of the standards of a traumatic injury.  TSGLI guidelines state traumatic injuries caused by gravitational forces are clearly covered.  His injury was caused by such an impact and therefore his benefits should be paid.  The denials for loss of activities of daily living (ADL) criteria have already been resolved and this should no longer be at issue.

3.  The applicant provides:

* medical records from 9 November 2006 to 18 June 2007
* his claim for TSGLI, dated 24 July 2011
* SGLV 8600 (Application for TSGLI Benefits), Part B (Medical Professional's Statement), 27 July 2011, signed by Dr. E____
* SGLV 8600, dated 27 July 2011, signed by Dr. C____
* his request for reconsideration of the denial of his TSGLI claim, dated 
5 August 2011
* a statement, dated 8 August 2011, from T____ B____, RN
* a letter, dated 8 August 2011, from Prudential Group Life Insurance, Roseland, NJ
* SGLV 8600, dated 15 August 2011, signed by Dr. K____
* his statement, dated 17 August 2011
* a letter, dated 18 August 2011, from the TSGLI Branch, U.S. Army Human Resources Command (HRC)
* an undated letter from his spouse
* a letter, dated 2 September 2011, from Dr. K____, Orthopedic Clinic, Fort Carson, CO
* 26 September 2011 letter from the TSGLI Branch, HRC
* email, dated 9 November 2011, from the TSGLI Branch, HRC
* email, dated from 22-28 September 2011, between his spouse and TSGLI Branch, HRC

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the denial of the applicant's claim be reversed and all benefits owed to him be paid immediately.

2.  Counsel states that based on the case law and U.S. Code involved in this matter, the standard of evidence for TSGLI cases is a preponderance of evidence, and all evidence must be construed in the claimant's favor.

	a.  The applicant has more than met the standard, and has jumped through every hoop requested by the TSGLI contractors in an effort to have his claim approved.

	b.  The applicant's traumatic injury, as well as the loss of ADL, has been certified by four medical professionals.  Having a certification by four separate and independent medical professionals, including the treating physician himself, is exceptionally above and beyond the evidentiary standard required by the program and in any court of law.

	c.  The continued denial of his claim is not only unjust and not in accordance with the program, but it is in direct violation of the processing procedures put into place by the Department of Veterans Affairs (VA).  It is evident the physician reviewer of this claim is using an evidentiary standard that is above and beyond the standard put into place by the VA and in direct violation of the TSGLI procedure manual.

	d.  Using this higher standard to process and deny the claims of injured Soldiers also violates the spirit of the program as designed by Congress.  This program was enacted to provide a disability-like insurance policy for members of the armed forces.  The review process being utilized to process the claims does not fulfill this purpose.

3.  Counsel also describes the applicant and his wife's actions with TSGLI contractors.

CONSIDERATION OF EVIDENCE:

1.  He was a staff sergeant in the U.S. Army Reserve who entered active duty on 8 May 2005.

2.  On 24 October 2006, his left knee was injured by tearing his meniscus during physical training.  On 6 March 2007, he underwent his first surgery.

3.  On 6 April 2007, he underwent a second surgery for left knee meniscal arrow removal with possible medial meniscal tear.  According to the operative report, signed by Dr. K____, the applicant had an arthroscopic meniscal arrow medial meniscal repair approximately 5 weeks earlier.  He had been doing just fine, except he had not been wearing his brace and had a slight twisting injury and now had a proud medial meniscal arrow just underneath the skin surface.  He was given a temporary physical profile for left knee pain until 5 June 2007 and placed on 21 days convalescent leave.

4.  On 16 April 2007, in a follow-up exam report Dr. K____ noted the applicant was feeling fine with no symptoms.  His pain was rated as mild.

5.  The medical records he provided do not address his ability to perform any of the ADL being claimed.

6.  Physical Therapy Reports from 7 March to 2 April 2007 he provided do not mention his inability to perform any of the ADL being claimed.

7.  On 24 July 2011, he filed a claim for TSGLI for his left knee injury.

	a.  On 24 October 2006, his left knee was injured by tearing his meniscus during physical training.

	b.  While playing volleyball, he jumped up to hit the ball and when he landed on his left leg, he felt something give way and he collapsed on the ground in excruciating pain.

	c.  He claimed ADL days for bathing, dressing, toilet, and transferring from 6 March to 8 May 2007.  He was unable to perform these activities by himself.  His wife had to help him do everything and he was unable to walk up the stairs at all to his bedroom and bathroom.

	d.  After the 16 April 2007 surgery he began to heal and by 10 May 2007 he was able to walk with a cane.  He was claiming 64 ADL days.

8.  SGLV 8600, dated 27 July 2011, signed by Dr. C____ indicates four ADL the applicant was unable to perform from 6 March to 8 May 2007.

	a.  He was unable to bathe independently.  Physical assistance (hands on) was required to negotiate getting in and out of the bathtub/shower or to bend to wash lower body.

	b.  He was unable to dress independently.  Physical assistance was required to put on or remove clothing from lower portion of body.

	c.  He was unable to toilet independently.  Stand-by assistance (within arm's reach) and support was required to urinate, stand getting off toilet, and to remove clothing and put back on.

	d.  He was unable to transfer independently.  Physical assistance was required.  He was unable to put any weight on his leg, unable to stand, unable to negotiate stairs.  He remained couch bound.

	e.  The doctor indicated he had not observed the applicant's loss, but he had reviewed his medical records.

9.  SGLV 8600, Part B, dated 27 July 2011, signed by Dr. E____, indicates three ADL the applicant was unable to perform from 6 March to 8 May 2007.

	a.  He was unable to bathe independently.  Physical assistance (hands on) was required to bathe and dress due to restriction to his lower body.

	b.  He was unable to dress independently.  Physical assistance was required to remove or put on clothing from lower body.

	c.  He was unable to toilet independently.  Stand-by assistance (within arm's reach) and support was required to urinate as well as remove and replace clothing.

	d.  The doctor indicated he had not observed the applicant's loss, but he had reviewed his medical records.

10.  On 5 August 2011, he requested a review of the decision to deny his TSGLI application.

11.  A statement, dated 8 August 2011, from T____ B____, RN, includes a summary of the applicant's medical records.

12.  The letter, dated 8 August 2011, from Prudential Group Life Insurance stated his claim for the inability to perform ADL due to traumatic injury was not approved because his loss did not meet the standards for TSGLI.

13.  SGLV 8600, Part B, dated 15 August 2011, signed by Dr. K____, indicates three ADL the applicant was unable to perform from 6 March to 8 May 2007.

	a.  He was unable to bathe independently.  Physical assistance (hands on) was required to get in/out of bathtub, showering, and bathing lower extremities.

	b.  He was unable to dress independently.  Physical assistance was required with pants, socks, and shoes.

	c.  He was unable to toilet independently.  Stand-by assistance (within arm's reach) was required getting on and off toilet, urinating (posture), and removing attire.

	d.  He was unable to transfer independently.  Physical assistance was required for transfer due to his non-bearing issue.

	e.  The doctor indicated he had observed the applicant's loss.

14.  His statement, dated 17 August 2011, requests a formal appeal and external review of his claim for TSGLI benefits as claimed on his original claim.

15.  In the letter, dated 18 August 2011, from the TSGLI Branch, HRC stated the decision of his previous claim was reconsidered.  HRC was unable to overturn the previous adjudication because the documentation provided did not indicate that he had met the TSGLI standards for loss of ADL.  If the Soldier is able to perform the activity by the use of adaptive measures or equipment, including crutches, then the Soldier is considered able to independently perform the activity.

16.  He provided an undated letter from his spouse.

	a.  She stated his injury was a complex tear of the meniscus with subsequent implant failure.

	b.  Her husband's pain was persistent from the date of his injury, 24 October 2006.
	c.  Her husband's course of treatment was not normal or standard.  His situation included multiple complications that severely impacted his course of treatment and ability to heal.

	d.  Given the complications to his initial surgery, he was completely unable to assume adaptive behaviors or to utilize devices until after his final surgery on 16 April 2007.

	e.  Her husband had been in a full straight leg brace until 8 May 2007 in order to immobilize his leg.  Clearly, in a full straight leg brace he was unable to bend his leg or bear weight on it.  This would inhibit his ability to perform activities such as dressing, toileting, bathing, and transferring.

17.  Dr. K____'s letter, dated 2 September 2011, stated the applicant was in an immobilizing full straight leg brace post surgical meniscus repair from 6 March to 8 May 2007, thus impacting his ability to perform ADL.  The specific ADL were not indicated in the letter.

18.  A letter, dated 26 September 2011, from the TSGLI Branch, HRC, stated that after reviewing his claim and supporting documentation, they were unable to overturn the previous adjudication.

	a.  HRC received a request from his spouse on 23 September 2011 for a review of his claim for TSGLI compensation.

	b.  After a thorough review of his file and the medical documentation submitted and the physician's conclusion, they were not able to approve his request.

	c.  While his injury was very unfortunate and a result of an exercise event, it did not meet the eligibility guidelines for TSGLI.

19.  In a letter, dated 3 October 2011, the TSGLI Branch, HRC, stated they received his appeal request.

	a.  HRC was unable to find any documentary evidence to reverse his claim; therefore, the decision on his case remains unchanged.

	b.  If he disagreed with the decision he had the right to appeal to the ABCMR.

20.  He submitted a letter, dated 17 October 2011, from Dr. K____, Orthopedic and Podiatry Services, his treating physician.

	a.  The applicant sustained a left knee injury while training with his military unit during a physical training exercise that occurred while playing volleyball.  He described how he jumped up to hit the ball and landed with all of his weight on his left leg.

	b.  Meniscal cartilage acts as a shock absorber which is very prone to this type of traumatic injury.  When the gravitational force of body weight causes pressure on the knee joint it can result in abnormal twisting or stress on the bones.  This force can jam the meniscal cartilage between the bones in the joint causing it to tear.

	c.  He performed surgery on 6 March 2007.  The patellofemoral joint had some grade-2 chondromalacia with some fissuring and a chondroplasty was performed.  Two 13mm arrows were used to reduce the meniscal tear.

	d.  After surgery the applicant attended physical therapy from 8 March through June 2007.  After complaints of severe left knee pain and swelling he was examined and it was evident the meniscus arrow had come loose.  He underwent two procedures to remove the meniscus arrows on 6 and 16 April 2007.

	e.  As a result of the implant failure, the applicant experienced neurological pain and swelling of the left knee which prolonged the healing process.  He exhibited loss of ADL from 6 March through 8 May 2007.  Although he was given crutches to assist him with mobility, severe left knee pain and swelling severely limit his ADL, requiring the assistance of his wife to help him with bathing, dressing, transferring, and toileting.  This has been addressed in his medical records and certifications have already been submitted.

	f.  He requested the previous TSGLI denial for the applicant be overturned.  He had provided all the information that had been requested at every step.  "The continued denial of this Soldier's benefit is ridiculous."

21.  An email, dated 9 November 2011, from TSGLI Lead Juncture Visual Narratives-CTR, provided a TSGLI Case Summary of his claim.  He stated their physician had reviewed his claim multiple times.  His most recent write up recommends disapproval of the claim.

	a.  The injury was caused when he jumped up and landed.  He sustained a meniscus tear which was later treated surgically.  There was no external force or violence.  There was no evidence of a qualifying TSGLI traumatic event.

	b.  Even if there were an associated qualifying traumatic event, this would be an isolated, uncomplicated single limb injury that would not be recognized as associated with sustained ADL loss.

22.  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.  The Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) program is an automatic provision under Servicemember's Group Life Insurance (SGLI).  TSGLI provides for payment to service members who sustain traumatic  injury as the result of a traumatic event and suffer a loss that qualifies for payment under TSGLI.  All members covered under SGLI who experience a traumatic event that directly results in a traumatic injury causing scheduled loss defined under the program are eligible for TSGLI payment.

23.  The TSGLI Procedural Guide provides general guidelines for TSGLI.

	a.  Traumatic Event – A traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body.  The event must involve a physical impact upon an individual.

	b.  External Force – An external force is a force or power that causes an individual to meet involuntarily with an object, matter, or entity that causes the individual harm.  There is a distinct difference between internal and external forces.  "Internal forces" are forces acting between body parts, and "external forces" are forces acting between the body and the environment, including contact forces and gravitational forces as well as other environmental forces.

	c.  A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six activities of daily living.  If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.), the patient is considered able to independently perform the activity.

DISCUSSION AND CONCLUSIONS:

1.  His initial claim for TSGLI benefits is dated 24 July 2011.  On 5 August 2011, he requested a review of the decision to deny his claim.  Therefore, it is reasonable to conclude a decision to deny his claim was made by HRC prior to 5 August 2011.  A copy of this decision is not available for review.

2.  His claim has been denied multiple times.
3.  It is not the intent of TSGLI to compensate Soldiers for injuries such as the one described.  The applicant’s injury caused by his feet hitting the ground can be likened to someone turning their ankle while walking down the street.  It is not a qualifying injury and this fact has been adequately explained to the applicant.

4.  Counsel's contention that the applicant is being required to submit documentation that exceeds the requirements of law or regulation has been noted.  However, the evidence submitted does not support the conclusion that the applicant met the standard of TSGLI.

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 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)                                         AR20110021239



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ABCMR Record of Proceedings (cont)                                         AR20110021239



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