IN THE CASE OF:	  

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120005682 


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, that his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim be reconsidered.

2.  The applicant states on 25 September 2005 while performing a mission in Iraq, he was involved in an improvised explosive device (IED) attack that hurt his shoulder bilaterally, back, and legs.  On 26 January 2006, while performing physical fitness playing basketball, he ruptured his left patella.  He was treated in theater and the doctor noticed a deformity of the left leg.  He applied a brace and issued an orthopedic consult.  He was initially treated in theater at the
10th Combat Support Hospital and he was assisted from time to time in getting up and down.  He was then medically evacuated to Landstuhl Regional Medical Center, Germany.  While in Germany, he continued to need assistance going back and forth to the hospital.  Once his surgery was completed, he was assisted by hospital staff in getting up and down, and back and forth to the restroom.  He was subsequently transferred to Fort Gordon, GA, where his wife took over helping him get around, up and down, and back and forth to/from the restroom.  He adds:

* the first time he submitted his claim it was lost and he had to resubmit it after waiting 3 months
* the original claim clearly listed the Activities of Daily Living (ADLs) and the length of time
* on 25 September 2005, while performing his duties during a route clearance, they were hit with an IED; he felt a tingling sensation all over his shoulder and leg
* he was evaluated by a medical team an hour later and after X-rays were taken there was no evidence of any broken bones
* he returned to the medics three days later after he experienced back and shoulder discomfort; he was referred to physical therapy
* a month later, during physical training, his leg gave out and he could not get up; he was taken to the emergency room
* it was determined he had a ruptured patella tendon; he still has shoulder issues but his issue is with the knee
* he was medically evacuated to Germany where he continued to complain of shoulder pain and although it was noted, it was not addressed
* a magnetic resonance imaging (MRI) eventually revealed a rotator cup tear and a bicep tendon tear; they repaired his shoulder
* ironically, none of the personnel involved with the IED was checked for traumatic brain injury (TBI) or post-traumatic stress disorder (PTSD)
* the IED report simply mentioned cuts and bruises
* the VA finally addressed his TBI and PTSD issues

3.  The applicant provides a:

* self-authored letter
* statement from his spouse
* certificate and orders for award of the Purple Heart
* DA Form 2173 (Statement of Medical History and Duty Status), dated
21 March 2006 and 19 July 2007
* VA progress notes dated in August 2011
* chronological records of medical care dated in March 2010
* chronological records of medical care dated in September 2005
* Photos of his shoulder surgery
* TSGLI form dated in June 2006
* denial letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 5 December 2011
* Aeromedical Evacuation Patient Record
* Patient Movement request

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the U.S. Army Reserve and Regular Army, the applicant enlisted in the Georgia Army National Guard (GAARNG) on 3 February 1990 and he held military occupational specialties 13E (cannon field specialist) and 91W/68W (health care specialist).

2.  He served through multiple extensions or reenlistments and he attained the rank/grade of sergeant first class (SFC)/E-7.  He was assigned to the
1st Battalion, 118th Field Artillery.

3.  He was ordered to active duty on 15 February 2005 and he subsequently served in Kuwait/Iraq from 16 May 2005 to 2 February 2006.

4.  On 24 September 2005, he was injured when his unit was hit with an IED explosion.  He was treated for injuries he developed in both shoulders and the lower back.

5.  A DA Form 2173, dated 21 March 2006, shows he ruptured his patella tendon while performing physical training, playing basketball, in Iraq, on 26 January 2006.  Additional chronological records of medical care show:

	a.  On 26 January 2006, he was admitted to a combat support hospital for a ruptured left patella tendon caused by playing basketball; X-rays were negative for a fracture; his pain was controlled and he was recommended for future repair upon return from theater.

	b.  On 1 February 2006, he complained of shoulder pain for the past
3 months.

	c.  On 24 August 2006, he was seen for shoulder pain; on examination, there was no sign of tenderness or palpation in the joint; recommended for physical therapy.

6.  He submitted a TSGLI claim on 5 June 2006.  He claimed he could not perform the "dressing," "bathing," and "transferring" ADLs for 30 days.  An orthopedic medical professional signed his form and indicated "impaired dressing, bathing, and transferring for 30 days after …(illegible entry)."  However, his claim was denied because his claim of injury while playing basketball did not meet TSGLI standards.

7.  He was honorably released from active duty on 20 September 2006 and he was transferred to the control of his State ARNG.

8.  On 3 January 2007, he again entered active duty in support of Operation Enduring Freedom.

9.  A DA Form 2173, dated 19 July 2007 confirmed the IED injury.  He was also awarded the Purple Heart for this injury.  His chronological records of medical care show:
	a.  On 24 September 2005, he was involved in an IED explosion that destroyed the military truck he was riding in; he was a back seat passenger, driver side; he had no injuries but complained of pain in the thoracic spine area; X-rays revealed no evidence of fracture or dislocation.

	b.  On a 25 September 2005 follow-up, he felt tingling and pain in fingers but it had subsided; some pain in his shoulder; he was returned to duty.

	c.  On 28 September 2005, he complained of pain in his thighs; he was instructed on thigh/hip stretches and advised to bike and continue weight training.

	d.  On 28 November 2005, he complained of lower leg pain and he was restricted from any running for 2 weeks; he was returned to duty.

10.  On 2 January 2008, he was honorably released from active duty at the completion of required active service and he was transferred to the GAARNG.

11.  On 6 January 2008, he submitted a request for reconsideration, but his request was again denied as it did not meet TSGLI standards.

12.  He submitted an appeal on 13 May 2008.  His doctor stated the applicant underwent patellar tendon repair in Germany after an IED blast in Iraq.  He had pain and swelling in his knee and shoulder pain as a result of the IED blast in September 2005.  He had persistent pain in the shoulder.  His appeal was denied as it did not meet TSGLI standards.

13.  He was discharged from the ARNG on 22 April 2010 and he was transferred to the U.S. Army Reserve (USAR) Control group (Reinforcement) to complete his remaining service obligation.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 28 years, 10 months, and 29 days of total service for pay.

14.  On 7 October 2010, he submitted a second appeal.  By letter from HRC, dated 5 December 2011, the applicant was again advised that based on the documentation he provided to verify his claim, their office was unable to find any documentary evidence to reverse his claim; therefore, the decision on his case remained unchanged.  He was also advised that if he disagreed with their decision he had the right to appeal to this Board.

15.  He submitted a letter from his spouse who states:

* She took care of her husband after his injury in Iraq in September 2005
* She assisted him in showering, bathing, and making sure his body parts were clean
* She assisted him in getting dressed for his appointments
* She assisted him to relieve himself (toileting), as well as getting in and out of bed
* She took him to all of his appointments (physical therapy)
* She assisted him for 4 1/2 months with everyday functions

16.  He also submitted extracts of his VA medical records.  One document states he was seen on 2 August 2011 to complete the TBI initial Biopyschosocial - Emotional Assessment of Strengths and Needs.

17.  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 Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) or under orders in a Combat Zone Tax Exclusion (CZTE) 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.

18.  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 the following types of losses 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% of body or 30% of the face, and coma or TBI.

19.  Traumatic injuries resulting in the inability to carry out two of the six ADLs 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.  While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

20.  As the original program was being implemented, the 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, that all appropriate conditions were being covered, and that 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.  

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty as a member of his ARNG unit from 15 February 2005 to 20 September 2006.  He served in Kuwait/Iraq from 16 May 2005 to 2 February 2006.  He was injured while playing basketball; he sustained a ruptured patella tendon.  This injury was a non-traumatic rupture of a patella tendon.  There is no qualifying TSGLI traumatic event identified.  His injury was not caused by external force or violence as required law or regulation.
2.  By law, for an ADL loss to be covered there must be a traumatic event that leads to a loss for a duration of at least 30 days; the member must require assistance to perform two of six ADLs; and the ADL loss must be certified by a healthcare provider and substantiated by appropriate documentation, such as occupational therapy/physical therapy reports, discharge summaries, and other medical documentation.  The basketball injury was not a traumatic event.

3.  Also by law, for hospitalization loss to be covered, the member must be hospitalized as an inpatient for 15 consecutive days as a result of a traumatic injury.  Although he was evacuated from theater to Germany and then on to Fort Gordon, GA, again, the key issue here is that his tendon injury was not a traumatic event.

4.  He was never diagnosed with PTSD or TBI as a result of the basketball injury. He never claimed TSGLI as a result of PTSD or TBI.  Subsequent VA evaluation for or diagnosis of PTSD or TBI does not prove he was unable to perform ADLs because of these conditions.

5.  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.  The applicant's injury pattern, a basketball injury, is not a traumatic event.

6.  In view of the foregoing, there is no 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)                                         AR20120005682



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ABCMR Record of Proceedings (cont)                                         AR20120005682



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