IN THE CASE OF:	  

		BOARD DATE:	    15 August 2013

		DOCKET NUMBER:  AR20120022204 


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 has applied for and been or was wrongfully denied certain benefits pursuant to the Traumatic Injury Protection under the TSGLI.

	b.  the applicant was involved in a motor vehicle accident on 30 March 2006 while on active duty.  The accident resulted in injuries to his lumbar and cervical spine.  The injuries caused an inability to perform certain Activities of Daily Living (ADLs) for a period of 30 days.  From 30 March 2006 to 30 April 2006, he required assistance to bathe, dress, toilet, and transfer, clearly meeting the criteria for benefits under TSGLI for a traumatic injury.  Both the time frame and the inability to perform the above ADLs were certified by a medical professional, a neurological surgeon.





	c.  on 8 January 2007, he was engaged in physical training, shooting a basketball when he jumped into the air and upon landing, his knee twisted and popped.  The traumatic impact caused his left quadriceps tendon to rupture.  He underwent surgery to repair the tendon on 10 January 2007.  As a result of the surgery, he required assistance with bathing, toileting, and transferring from 
11 January 2007 to 24 February 2007.  This meets the criteria for benefits under TSGLI for the inability to perform 4 ADLs related to a traumatic injury.  This time frame and the inability to perform 4 ADLs were certified by a family practitioner at Fort Dix, NJ.

	d.  on 8 November 2007, he underwent a second surgery because the hardware placed at the first surgery malfunctioned.  As a result of the second surgery, he required assistance with bathing, dressing, toileting, and transferring from 8 November 2007 to 8 January 2012.  This meets the criteria for benefits under TSGLI for a traumatic injury.  The time frame and the inability to perform 
4 ADLs were certified by a doctor at Fort Dix, NJ.        

	e.  the 8 January 2007 incident at the gym is a traumatic event under TSGLI.  The injury was caused by an external force (gravity) which caused him to come in contact with an object (the floor) and directly resulted in the quadriceps tendon rupture.  According to the TSGLI Procedure Guide, once a member establishes that as result of a traumatic injury he suffered a scheduled loss, the member is entitled to benefits.  Thus, he is entitled to benefits as a result of the quadriceps tendon rupture.  It goes without saying the motor vehicle accident of 30 March 2006 was a traumatic event that directly caused injuries to the applicant and resulted in a scheduled loss.  As such, he is entitled to benefits.  He has had 
3 periods of 30 days or more in which he suffered a loss of the ability to perform 2 or more ADLs all certified by a medical professional.  He is clearly entitled to TSGLI benefits.

	f.  all contracts have an implied covenant of good faith and fair dealing.  This covenant applies to contracts of insurance.  The covenant of good faith and fair dealing also applies to contracts between citizens and the government.  The covenant prevents one party to the contract from interfering with the other party's right to enjoy the benefits of the contract.

	g.  while there apparently is no TSGLI policy in the traditional sense, the TSGLI Procedure Guide is for all intents and purposes the policy as it sets out the basis as to when benefits are paid and not paid.  The Guide also sets out the procedures for both claims submission and the appeals process.  He has met the requirement for benefits under the TSGLI; the failure to pay these benefits constitute a clear breach of the contract of insurance.  

3.  Counsel provides 

* TSGLI applications
* Department of Veterans Affairs (DVA) documentation
* TSGLI denial letters
* Medical Evaluation Board/Physical Evaluation Board documentation 

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) on 25 April 1978.  He was promoted to master sergeant effective 1 September 1999.  He was ordered to active duty from the USAR on 24 July 2005 in support of Operation Enduring Freedom.    

2.  Counsel provides several TSGLI applications wherein the attending physicians stated the applicant could not perform:

* dressing, bathing, toileting, or transferring independently during the period 30 March 2006 to 30 April 2006
* dressing, bathing, toileting, or transferring independently during the period 
     11 January 2007 to 24 February 2007
* dressing, bathing, toileting, or transferring independently during the period 8 November 2007 to 8 January 2008
* dressing, bathing and toileting independently during the period 
      25 November 2008 to 8 December 2008

3.  Counsel provides a narrative summary, dated 30 October 2008, which states:

* the applicant reports that prior to mobilizing to Fort Dix he did not have neck or back pain
* his pain began in March 2006 after he was involved in a car accident
* he did not go to the Emergency Care after the car accident, but was treated at the 305th Medical Group at McGuire Air Force Base
* he was diagnosed with a neck and back strain and was started on physical therapy, he also received Transcutaneous Electric Nerve Stimulator (TENS) treatment
* he reports over the next year his neck and lower back pain progressively worsened
* he injured his left knee on 8 January 2007 while playing basketball for physical training
* he was diagnosed with a ruptured quadriceps tendon
* two days later, he had surgery without any post op complications
* two months later, he started physical therapy on his left knee
* after three months of therapy an x-ray of his knee was done and showed a metal fastener had broken
* he had his second surgery on 8 November 2007
* he tolerated the surgery well and had no post op complications
* after six months of physical therapy he had significant decrease in pain and swelling, but continued to have impaired function

4.  Counsel provides a DA Form 3349 (Physical Profile), dated 19 March 2009, which shows the applicant was issued a permanent profile of 333113 for left quadriceps tear, neck pain, back pain, headache, major depressive disorder, bilateral knee pain, and carpal tunnel syndrome.   

5.  On 17 March 2011, the applicant was retired by reason of permanent disability.

6.  The TSGLI Office provided a chronological summary of the applicant’s appeals.  The TSGLI summary chronological listing shows that:

	a.  in February 2009, he submitted a TSGLI claim for loss of ADLs for bathing, dressing, toileting, and transferring in and out of the bed and vehicles for 
30 days.  His application was denied.
  
	b.  in April 2010, he submitted a request for reconsideration for TSGLI benefits.  The TSGLI office denied his request and stated the medical documentation provided did not support that he could not perform the asserted ADLs for 30 consecutive days or more. 

	c.  in June 2010, he filed an appeal of his TSGLI claim.  His appeal was denied because:

* his application listed several injury event dates
* at that time, that office was unable to identify a qualifying loss associated with his motor vehicle accident in 2006
* the TSGLI office was unable to identify a qualifying loss for his leg injury sustained in 2007
* the knee injury associated with this injury did not qualify as a result of external force or trauma
* the claimed loss associated with his carpal tunnel surgery did not meet the TSGLI minimum requirements for ADL loss (30 days or greater)
	


   d.  all disapprovals range from:

* insufficient documentation to support losses
* the doctor did not certify losses
* the inability to identify a qualifying loss for the motor vehicle accident
* unable to identify a qualifying loss for the leg injury
* the knee injury associated with this injury did not qualify as a result of external force or trauma
* the claimed loss associates with his carpal tunnel surgery did not meet the TSGLI minimum requirements for ADL loss

7.  On 10 June 2012, the DVA granted service connection for:

* Obstructive sleep apnea (50%)
* Major depressive disorder (50%)
* Lumbosacral strain (20%)
* Sciatic nerve radiculopathy, left lower extremity (20%)
* Right knee arthritis (10%)
* Right shoulder strains (10%)
* Bilateral pes planus/flatfeet with plantar fasciitis/foot strain (10%)
* Tinnitus (10%)
* Allergic rhinitis (10%)
* Gastroesophageal reflux disease (10%)
* Hallux valgus deformity, left (0%)
* Pinguecula (0%)
* Halux valgus deformity, right (0%)
* Rhinosinusitis (0%)
* Tinea pedis and generalized xerosis (0%)
* Hypertension (0%)
* Hammertoes, left (0%)
* Hammertoes, right (0%)

8.  The DVA increased his disability percent to:

* 20% for osteophytes C6, cervical spine by x-ray with cervical strain
* 10% for status post left knee arthroscopic surgery with left knee strain

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 $25,000.00 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.

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% 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.  

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant has had 3 periods of 30 days or more in which he suffered a loss of the ability to perform 2 or more ADLs all certified by a medical professional.  Counsel provided TSGLI applications in which the applicant's attending physicians stated he was unable to perform 3 or more ADLs during the periods 30 March 2006 to 30 April 2006, 11 January 2007 to 
24 February 2007, and from 8 November 2007 to 8 January 2008.  However, no substantiating documentation was attached.  

2.  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.  

3.  Counsel has not provided the required medical documentation for ADL loss, and he has not provided sufficient documentation supporting his contention that the applicant is entitled to TSGLI benefits.

4.  Regrettably, based on the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20120022204





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ABCMR Record of Proceedings (cont)                                         AR20120022204



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