IN THE CASE OF:	   

		BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120014407 


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 the applicant be awarded Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits.

2.  Counsel states:

	a.  the applicant's traumatic injury occurred on 26 April 2005.

	b.  his claims and subsequent appeals were denied.  

   c.  his original claim was filed in May 2011, denied on 17 June 2011, and was erroneously treated by the TSGLI office as a reconsideration of a previously paid and unrelated claim.  The May 2011 claim should have been treated as a separate traumatic event and injury.  Counsel resent the claim for "appeal" in November 2011 as directed in the denial letter (technically he should have been granted an opportunity for reconsideration at this juncture).  In March 2012, the Army TSGLI office denied the claim and cited "medical documentation does not verify that you would be incapable of performing ADLs (activities of daily living) without assistance.  No medical documentation was provided to verify hospitalization for 15 days."  The applicant was denied his right for an opportunity to file another appeal.     

	d.  the medical records address his specific injury of cervical radiculopathy and traumatic shoulder dislocation, which qualifies as a traumatic event and injury.

	e.  on or about 26 April 2005, he was operating the gun turret of a Humvee in Iraq.  When an improvised explosive device detonated near the vehicle, the driver came to a sudden stop causing the applicant's body to be thrown around in, and out of, the gun turret.  This caused severe injuries to his neck and shoulder, including cervical strain, radiculopathy, myelopathy, and a later diagnosed shoulder injury.  He was evacuated from Iraq to Kuwait on 16 May 2005 and from Kuwait to Landstuhl, Germany on 2 June 2005.  His accident qualifies as a traumatic event because it resulted from the application of the external force of the ground and parts of the Humvee to his body.  His physicians agree he was injured in Iraq on 26 April 2005 when a roadside bomb exploded and he was thrown from his Army vehicle.

	f.  the April 2005 accident and resulting injuries are the basis of this TSGLI claim and appeal.   

	g.  upon his return from Iraq on 13 June 2005, he was still having severe pain in his neck and left arm as well as numbness and weakness in his left arm and hand.  A magnetic resonance imaging (MRI) diagnosed a cervical disc herniation.  On 26 September 2005, he began to attend occupational therapy.  The pain clinic included goals to increase mobility and range of motion to improve ADLs.  He continued to do occupational therapy with little improvement until he underwent his first shoulder surgery on 9 May 2006.    

	h.  his first shoulder surgery involved examination under anesthesia, arthroscopy of the shoulder joint, and excision of portions of his clavicle.  The surgery revealed further evidence of joint instability.  He continued with physical and occupational therapy for the next 8 months.  He began to have increasing pain and difficulty with his ADLs in September 2006.  His doctors determined on 28 November 2006 that further surgery would be the best option to correct his shoulder pain and instability.

	i.  the period 31 January 2007 through 30 April 2007 is the subject of his claim for loss of ADL.  He underwent anterior and posterior capsular shift surgery on 
31 January 2007.  This major surgery involved opening up the shoulder joint and wiring it with screws, anchors, and surgical suture to improve stability in the joint.  In order for the joint to heal properly, his left arm had to be completely immobilized in a shoulder brace.  His doctor advised him to stay immobile.  He was instructed to wear the brace for 90 days after surgery and that he would require assistance to dress and bathe for 90 days as well.  The only reason the doctor did not order a home health aide for him was because his wife would be staying with him to help him dress and bathe.  

	j.  during the time period following the 31 January surgery, he was staying at home in the 24-hour care of his wife (now ex-wife).  She assisted him with dressing and bathing.  Without moving his left arm it would have been impossible for him to put on and take off his shoulder brace by himself.  The extreme pain, immobility, and side effects of the strong pain medication he was on made it impossible for him to dress and bathe himself without assistance.  If he did not have his wife at home to take care of him during this time he would have had to retain a medical attendant.  The surgery center doctor noted "I have advised (the applicant) and his wife that he will need help with dressing and bathing for a minimum of three months or ninety days… since (the applicant's) wife is able to care for him during this time, a home health aid [sic] is not needed.  I believe that (the applicant) will be able to start dressing and bathing himself in three months."

	k.  he did not have his initial physical/occupational therapy evaluation until March 2007 and he complained of severe pain "affecting independence with ADLs."  While there is a report that he was independent with self-care on this date, this was likely an error as it conflicts with his attending physician's 4 April 2007 report of the 3 April visit where the doctor released the applicant from wearing the shoulder orthrosis and explained that he could begin physical therapy.  During this visit, the doctor explained that "Although weak, (the applicant) was able to now care for his personal needs."  However, he also corroborated the evidence about ADL loss "I informed (the applicant) and his wife (on the day of surgery) that he was to remain immobilized in the Don Joy Lerman Shoulder Orthosis for no less than 90 days.  I explained to (applicant's wife) that (the applicant) would need hands on help with getting dressed and taking a bath or shower during the immobilization time period."

	l.   his shoulder and ADL problems continued intermittently through November 2008 and he continued to attend physical and occupational therapy on a regular basis.  Finally, his observing physician certified he was unable to bathe or dress independently from 31 January 2007 to 30 April 2007.

	m.  the Army TSGLI office should reconsider his claim based on medical evidence already submitted and the additional medical evidence submitted with this appeal.  The decision was incorrect for three reasons:  the office wrongly considered the claim as an appeal to a previous claim; his inability to dress and bathe himself for 90 days qualifies him for $75,000.00; and alternatively, his 
15-day stay in military hospitals qualifies him for at least $25,000.00. 

	n.  the present TSGLI claim was a new claim and should have been treated as such.  He suffered separate traumatic events occurring more than seven full days apart – his fall from the ladder, on which his first TSGLI claim was based, occurred at home and was nowhere near the time he spent deployed in Iraq.  However, the office treated the present claim as an appeal for a previous claim.  Whether he was paid for 30 days of ADL loss on his previous TSGLI claim should have no bearing whatsoever on the present claim.

	o.  he suffered at least 90 consecutive days loss of the ability to independently perform ADLs, qualifying him for $75,000.00.  His injury and ADL loss are well documented and supported by medical information.  This information addresses his specific injury of cervical disc herniation and traumatic shoulder dislocation and illustrates an extensive timeline of treatment including multiple surgeries and many months of physical therapy.  His attending physicians explicitly stated that he was to remain immobile and that he would require assistance to dress and bathe.  All of this documentation was produced by licensed medical providers, physical therapists, and other medical professionals.

	p.  this information supports his inability to bathe or dress independently for 90 days.  These two activities are qualifying ADLs and he was unable to perform them without physical assistance from 31 January 2007 to 30 April 2007, a period of 90 days.  The decision of the Army TSGLI office to deny the claim on grounds of insufficient medical information should therefore be overturned, as his inability to bathe and dress independently for at least 90 days entitles him to a $75,000.00 TSGLI benefit.

	q.  even if all the evidence is ignored, he is due at least $25,000.00 for his time spent in various field and military hospitals.  He spent 15 days as a hospital inpatient or being transferred between hospitals in Iraq, Kuwait, and Germany.  This hospitalization alone is enough to grant him an award of $25,000.00.     

3.  Counsel provides:

* a list of exhibits outlined in her brief
* letter, dated 10 January 2013 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Michigan Army National Guard (MIARNG) on 
18 September 2002.  He was ordered to active duty on 29 December 2004 in support of Operation Iraqi Freedom (OIF).  He arrived in Iraq on 3 March 2005.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 June 2005, shows the following:

* he injured his neck on 16 May 2005 in Iraq
* he was listed as an outpatient  
* the applicant stated that while on duty in Baghdad, Iraq, his driver came to a sudden stop while he was in the turret of his Humvee, causing severe whiplash  
* Item 30 (Details of Accident - Remarks) of this form reiterates the neck injury he received while on the Humvee  

4.  An Air Force (AF) 3899 (Aeromedical Evacuation Patient Record), dated 
16 May 2005, contains the following information:

* Originating facility is shown as the 86th Combat Support Hospital (CSH), Baghdad, Iraq
* His injury is listed as "non-battle" whiplash 
* Unable to wear "IBA/Kevlar" or perform duties
* His chain of command wanted an MRI and recommendations
* Destination facility is listed as Kuwait

5.  An AF Form 3899A (Aeromedical Evacuation Patient Record (Continuation Sheet)) shows patient progress notes beginning on 16 May 2005 through 
21 May 2005.  There is no other period of "inpatient" care listed in the available records.

6.  A second AF Form 3899, dated 2 June 2005, shows:

* Originating facility is listed a U.S. Military Hospital, Kuwait
* His injury is listed as "non-battle" - radicular pain/symptoms in left arm and neck region for 6 weeks following whiplash type in gun truck
* Applicant did not respond to physical therapy
* Required further/"poss" surgical evaluation for surgical disc seen on MRI
* Outpatient records and x-rays were shown to accompany applicant
* Destination facility is listed as Landstuhl Army Medical Center

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he departed Iraq on 9 June 2005.  

8.  Medical records show he underwent surgery on his left shoulder in May 2006 and January 2007.  The January 2007 surgery was without complications. 

9.  Counsel provided a medical record, dated 13 February 2007, from the applicant's doctor who states:

* "I have advised (the applicant) and his wife that he will need help dressing and bathing for a minimum of three months or ninety days"
* "Since (the applicant's) wife is able to care for him during this time, a home health aid is not needed.  I believe that (the applicant) will be able to start dressing and bathing himself in three months."

10.  Counsel provided a progress report, dated 20 March 2007, which states the applicant was independent with self-care. 

11.  Counsel provided a medical record, dated 4 April 2007, from the applicant's doctor who states:

* "I explained to Mrs. (applicant's last name) that (the applicant) would need hands on help with getting dressed and taking a bath or shower during the immobilization time period."

* "On 4/3/07 I saw (the applicant).  After exam I let (the applicant) know that he no longer needed to wear the Orthosis and that he could start therapy.  Although weak (the applicant) was able to now care for his personal needs."

12.  On 12 June 2007, he was released from active duty for completion of required active service.  

13.  On 1 January 2008, he was honorably discharged from the MIARNG for expiration term of service. 



14.  Part B (Medical Professional's Statement) of the applicant’s TSGLI application, dated 12 May 2011, shows that his attending physician essentially stated:

* he was transported to the hospital on 26 April 2005 and he was hospitalized from 16 May 2005 to 2 June 2005
* he was hospitalized for at least 15 consecutive days
* he could not perform bathing and dressing independently from 31 January 2007 to 30 April 2007

15.  On 17 May 2011, he submitted a TSGLI claim for hospitalization and loss of ADLs for other traumatic injury.  On 17 June 2011, his claim was disapproved.  The TSGLI letter states the documentation provided did not indicate he met the TSGLI standards for loss of ADL beyond his previous payment for 30 days.  It appears the TSGLI office reconsidered the decision of a previous unrelated claim wherein he was granted TSGLI benefits for a fall off a ladder after he returned from Iraq.    

16.  On 16 November 2011, counsel submitted a request for reconsideration for TSGLI benefits.  Page 4 of the SGLV Form 8600 (TSGLI) contains a typewritten entry in the Traumatic Injury Information block, which states, in part:

On April 26, 2005, servicemember was operating a Humvee's gun turret in Iraq.  In reaction to a nearby IED explosion, the driver of the Humvee came to a sudden stop and servicemember was thrown from the vehicle, sustaining neck and shoulder injuries that caused severe pain.  Due to those injuries, he was hospitalized in Iraq and Kuwait from 16 May 2005 to 2 June 2005, at which time he was evacuated to Landstuhl, Germany and then home to the United States. 

On 19 March 2012, the TSGLI office denied his request because the medical documentation did not verify that he would be incapable of performing his ADLs without assistance and no medical documentation was provided to verify hospitalization for 15 days.  

17.  Counsel provided a statement from his ex-wife who attests:

* after his last surgery he was placed in an immobilizer and he wasn't able to move his arm for 3 months
* she helped him dress and shower for 3 months


18.  There is no medical evidence of record which shows the applicant was hospitalized for 15 consecutive days or that he was "thrown from his vehicle" as a result of an IED explosion. 

19.  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 $25,000.00 and $100,000.00 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 $1.00 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 (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 (Active, Reserve, or National Guard) 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 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% of body or 30% of the face;

	h.  coma or TBI; or

	i.  other traumatic injuries resulting in the inability to carry out 2 of the 6 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 TBIs).  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.  

21.  Part 9 (SGLI and Veterans' Group Life Insurance) of Title 38 CFR, section 9.20 (Traumatic injury protection) states the eligibility requirements for payment of traumatic injury protection benefits are:

	a.  You must be a member of the uniformed services who is insured by SGLI on the date you sustained a traumatic injury, except if you are a member who experienced a traumatic injury on or after 7 October 2001, through and including 1 December 2005, and your scheduled loss was a direct result of injuries incurred in OEF or OIF in section 9.20(d)(1).

	b.  You must suffer a scheduled loss that is a direct result of traumatic injuries and no other causes in section 9.20(d)(2).

	c.  You must survive for a period not less than 7 full days from the traumatic injury in section 9.20(d)(3).

	d.  You must suffer a scheduled loss within 2 years of the traumatic injury in section 9.20(d)(4).

	e.  You must suffer a traumatic injury before midnight on the date of termination of your duty status in the uniformed services that established eligibility for SGLI in section 9.20(d)(5).

22.  The TSGLI hospitalization benefit is a $25,000.00 payment made to a servicemember or veteran who is hospitalized as an inpatient for 15 consecutive days (or more) as the result of a traumatic injury incurred while on active duty or Reserve and covered by SGLI.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the medical records address the applicant's specific injury of cervical radiculopathy and traumatic shoulder dislocation, which qualifies as a traumatic event and injury.

2.  Counsel contends the applicant's observing physician certified he was unable to bathe or dress independently from 31 January 2007 to 30 April 2007.  Part B of the applicant’s TSGLI application shows his attending physician essentially stated he could not perform bathing and dressing independently from 31 January 2007 to 30 April 2007.  However, that information is contradicted by the entries in the medical records provided by counsel that stated the applicant was independent with self-care on 30 March 2007 and that he no longer needed to wear the brace and he was able to care for his personal needs on 3 April 2007.

3.  Counsel also contends the applicant's 15-day stay in military hospitals qualifies him for at least $25,000.00.  The medical evacuation documents provided show he was evacuated from Iraq on 16 May 2005.  Patient progress notes also show "day-to-day" care for the period 16 through 21 May 2005.  An AF Form 3899, dated 2 June 2005, and the DA Form 2173 both show him in an "outpatient" status.  While the period 16 through 21 May 2005 can be presumed to be continuous hospitalization, this equates to 7 days.  Counsel has not provided sufficient evidence and his medical records are absent of conclusive evidence to verify hospitalization for 15 consecutive days in 2005. 

4.  It is acknowledged the TSGLI office considered the applicant's initial claim (May 2011) as an appeal to a previous unrelated claim.  Counsel contends the applicant was denied his right for an opportunity to file another appeal.  However, evidence shows counsel submitted an appeal in November 2011.  It appears his claim for hospitalization and loss of ADLs for other traumatic injury was properly considered by the TSGLI office in March 2012.

5.  It appears he sustained a left shoulder injury and whiplash as a result of the vehicle he was riding in coming to a sudden stop.  There is no evidence to support counsel's claim that the applicant was "thrown from the vehicle as a result of an explosion from an IED."  His surgeon noted that the arthroscopic procedure he underwent in January 2007 was without complication.  The medical documentation which was prepared at the time of his surgery does not indicate the applicant would be incapable of performing his ADLs without assistance.  This is a single limb, non-complicated recovery.  The narratives provided to verify ADL losses are simplistic and do not expand on the need for assistance due to his impairment.  Despite the presence of an immobilizer/brace, adaptation within 30 days is a reasonable expectation with this injury and surgery given no additional documentation.  

6.  Counsel has not provided sufficient documentation to support his contention that the applicant's TSGLI claim was improperly disallowed.

7.  Regrettably, there is insufficient evidence on which to grant the 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)                                         AR20120014407





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ABCMR Record of Proceedings (cont)                                         AR20120014407



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