IN THE CASE OF:	  

		BOARD DATE:  29 November 2012

		DOCKET NUMBER:  AR20120013376 


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 approval of his previously denied Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim.

2.  The applicant states his prior TSGLI claim was not thoroughly reviewed and possibly would have been granted if consideration was given to two major issues.
   
   a.  Although it was concluded he had no losses, he provided proof he lost time from work, paid out of pocket co-pay surgery costs, incurred pain and suffering, and his sister provided him assistance with eating, bathing, and dressing.
   
	b.  He injured his back due to heavy lifting, donning and wearing his armor for countless hours, running, jumping, bouncing in military vehicles and many other activities that occur during war to include many attacks, resulting in two bulging and one herniated disc.

	c.  It is his belief that his disc problems did not result from lifting heavy equipment alone; it was cumulative due to other constant activity and outside forces.
   
3.  The applicant provides the documents listed on his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he had previously served in the Regular Army and subsequently enlisted in the U.S. Army Reserve (USAR).  He held military occupational specialty 63Z (Mechanic Maintenance Supervisor).

2.  On 6 May 2006, he was ordered to active duty in support of Operation Iraqi Freedom (OIF) and continued to serve until he was honorably released from active duty on 21 July 2007.

3.  On 1 January 2009, the applicant was transferred to the Retired Reserve, having completed 27 years, 4 months, and 28 days of creditable military service. His Army Military Human Resource Record (AHMRR) is void of any medical health records or any other evidence showing he sustained a traumatic injury during his military service.

4.  He provides a Standard Form (SF) 519B (Radiology/Nuclear Medicine Report), dated 11 December 2008.  It shows:

   a.  He was diagnosed with worsening lower back pain.
   
   b.  A magnetic resonance imaging (MRI) scan of his lumbar spine revealed normal configuration and all the vertebral bodies had normal height and signal and were well aligned.
   
   c.  The conus (the lower end of the spinal cord) ended at L1 and the L4/5 disc showed a mild right lateral protrusion without significant narrowing of the canal and foramina.
   
   d.  The three cranial levels of the lumbar spine appeared normal.

5.  The applicant provides a North American Spine Operative Report, dated
23 July 2010, which shows the applicant underwent a disectomy and neural decompression of the L4-5 to S1-2 (left) without any complications.  The findings show "excellent decompression of the involved nerve roots."

6.  Part A (Member's Claim Information and Authorization) of SGLV Form 8600 (Application for TSGLI Benefits), dated 30 April 2012, shows:

   a.  In March 2007, while serving in Iraq, after many long days of work lifting heavy equipment, carrying his armor and personal equipment, and sometimes lifting wounded Soldiers, he began experiencing back pain.  One month later it became hard for him to sleep.
   b.  In 2008, upon his return, he was able to get an MRI which revealed a bulging and herniated disc in his lumbar region (lower back).  At that time he began physical therapy but refused steroid shots.
   
   c.  In 2010, after the pain had extended to his left leg and foot, he underwent back surgery.

7.  Part B (Medical Professional's Statement) of the SGLV Form 8600 shows the applicant’s attending physician confirmed the applicant's statements that he needed assistance dressing, eating, and using the toilet.  The physician also indicated the applicant had decreased range of motion, previous lumbar surgery, painful mobility, and scoliosis.

8.  The complete application, rationale, and appeal of the applicant's submission to the TSGLI office are unavailable and the applicant does not provide copies.  However, on 11 June 2012, the TSGLI office responded to the applicant's request indicating:

* after reviewing his claim and supporting documentation, this office was not able to overturn its previous adjudication
* documentation did not indicate he suffered a loss resulting from a qualifying event
* documentation indicates his back pain developed while deployed to Iraq during 2007 resulting from lifting heavy equipment
* TSGLI procedures defines a traumatic event as "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"
* TSGLI guidance provides that "it would not include an injury that is induced by the stress or strain of the normal work effort that is employed by an individual"

9.  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 May 11, 2005, established the TSGLI program.  U.S. Army Combat-Related Special Compensation (CRSC) 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.  TSGLI provides between $25,000 and $100,000 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 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 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.

10.  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 application of external force or violence (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:

	a.  total and permanent loss of sight in one or both eyes;

	b.  loss of hand or foot by severance at or above the wrist or ankle; 

	c.  total and permanent loss of hearing in one or both ears;

	d.  loss of speech;

	e.  loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints;

	f.  quadriplegia, paraplegia or hemiplegia;

	g.  3rd degree or worse burns covering 30 percent of body or 30 percent of the face;

	h.  coma or traumatic brain injury; or

	i.  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 
(15 days or more in the case of traumatic brain injuries).  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 medical 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.  The Soldier must suffer a scheduled loss within 2 years of the traumatic injury.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence provided by the applicant was carefully considered.  The applicant’s disagreement with responses to his TSGLI claim(s) was noted; however, the available evidence failed to show he suffered any traumatic event or met any of the necessary criteria that would qualify him for TSGLI benefits.  He admitted that he began to have back pain in March 2007 due to lifting heavy equipment and wounded Soldiers and carrying his armor and personal equipment, which progressively worsened and after 3 years required surgery for a protruded and herniated disc.  The TSGLI criteria require that a Soldier must have suffered a scheduled loss within 2 years of the traumatic injury.

2.  The TSGLI guidance also states a qualifying traumatic injury is an injury or loss caused by application of external force or violence (a traumatic event) or a condition whose cause can be directly linked to a traumatic event.  It further provides that it would not include an injury that is induced by the stress or strain of normal effort that is employed by an individual.  Further, the Soldier must suffer a scheduled loss within 2 years of the traumatic injury.  As a result, the applicant’s lower back pain cannot be linked to any traumatic event, but most likely is the cause of a normal work effort.  .

3.  The applicant has not provided sufficient documentation to support his 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.





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)                                         AR20120013376



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ABCMR Record of Proceedings (cont)                                         AR20120013376



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