IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20120022988 


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 on behalf of the applicant, in effect, that his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim be reconsidered.

2.  Counsel states in a 6-page notice of disagreement that the applicant's loss due to injury is supported by sufficient medical information to grant his claim for TSGLI benefits.

	a.  Counsel references statutes and regulations governing TSGLI, wherein the program provides a one-time payment to servicemembers who have sustained a serious injury.

	b.  Counsel states that the applicant had submitted his original claim in September 2011 which was denied because his loss did not meet the standards for TSGLI.

	c.  Counsel states that the applicant submitted his first reconsideration that was denied in February 2012 because the medical documentation he submitted did not indicate his physical injury made him incapable of performing the activities of daily living (ADL) for bathing and dressing as covered by TSGLI standards.

	d.  Counsel states that the applicant submitted a third application for appeal in June 2012, which included additional medical records and documentation.  This appeal was denied on 23 August 2012 because he had not been hospitalized for a period of 15 or more consecutive days.  Also, the medical documentation did not indicate his shoulder injury made him incapable of performing the ADLs of bathing or dressing as covered by the TSGLI standards.  The applicant was subsequently advised that further appeals must be made to this Board.

	e.  A 24 February 2006 training accident and resultant injury are the basis for the applicant's TSGLI claim.  He fell out of a moving humvee and landed on his outstretched left arm.  As a result, he was initially diagnosed with a dislocated shoulder.  He decided to take a conservative approach by keeping his arm in a sling and held off having surgery hoping that his shoulder would improve.  Because of his pain and limited range of motion, he did not attend physical therapy.  Eventually, he gave physical therapy a try, but it proved to be unsuccessful.  He continued to have severe pain and required two surgeries before the pain improved somewhat.  Because of the severity of the shoulder pain, he required assistance with overhead activities, especially bathing and dressing.

	f.  Counsel states that on 13 March 2006, the applicant's doctor noted that he was unable to lift his arm over his head to remove his shirt.  He continued to require assistance with dressing, especially with donning and doffing shirts.  He also required assistance with bathing because he could not lift his arms to wash his head, underarms, back and other parts of his body.  An observing physician supplemented the applicant's claims by testifying he was unable to bathe and dress independently for a period of 120 days.

	g.  On 18 April 2006, the applicant reported to his physician that he had constant sharp pain.  He was in too much pain to do physical therapy.  He had a limited range of motion due to pain and weakness of the upper left extremity.  He could not possibly reach overhead to dress or bathe due to limited motion and extreme pain.

	h.  As months passed, the applicant complained to his doctors about the pain and difficulties with overhead activities involving ADLs.  He received treatment and had follow-up visits about three times each month.  Because physical therapy was so painful, he made use of ice, heat, topical, and various pain medications that provided temporary relief.

	i.  On 19 June 2006, the applicant finally required surgery if he wanted any kind of relief.

	j.  Counsel contends that the applicant's shoulder injury and resultant loss of ADLs for 120 consecutive days entitles him to the $100,000.00 TSGLI benefit.  He does not make a 15-day hospitalization claim.

3.  Counsel provides copies of:

* Exhibit A: TSGLI claim procedural history (1 page)
* Exhibit B: TSGLI Application (14 pages)
* Exhibit C: TSGLI denial letters (7 pages)
* Exhibit D: Letters of support (12 pages)
* Exhibit E: Medical timeline (6 pages)
* Exhibit F: Medical Records (244 pages)

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant enlisted in the Regular Army on 4 November 2004.

2.  On 4 May 2007, the applicant was discharged due to physical disability.  He had completed 2 years, 6 months and 1 day of creditable active duty service.

3.  Records at TSGLI, HRC, provide the following:

	a.  The available record of the applicant's claims:

* Initial application received on 6 September 2011
* Initial application denied on 22 September 2011
* Application reconsidered on 17 November 2011
* Reconsideration denied on 19 January 2012
* Appeal received on 26 June 2012
* Appeal denied on 23 August 2012

	b.  Summary of case:  The applicant injured his left shoulder during basic training in January 2005.  Later, in Iraq, he reinjured this shoulder when he fell from a truck.  He suffered a grade 3 acromioclavicular joint separation.  He did not have a fracture.  He was treated with closed reduction and sling immobilization and returned to duty as an outpatient.  Eventually, he was medically evacuated from the theater; however, he was never hospitalized.  He has always remained an outpatient.  He had two outpatient shoulder arthroscopies, on 19 June and 18 September 2006.  No other significant injuries were documented or claimed.  He originally claimed 10 days hospitalization and two ADL losses due to other traumatic injury.  However, none were found.  In his reconsideration, he claimed loss of two ADLs both of which were not found.  On his appeal, he again claimed 10 days hospitalization and two ADLs due to other traumatic injury.  He submitted hundreds of pages of medical notes.

	c.  The applicant claimed TSGLI Part/Scheduled Losses as follows:

* 20 February 2006: Inability to perform two or more ADLs due to other traumatic injury for 30, 60, 90, or 120 consecutive days
* 24 February to 23 September 2006 (212 days) loss of two ADLs (dressing and bathing) due to other traumatic injury

	d.  In an undated memorandum submitted with his reconsideration, the applicant stated that he was injured in Iraq and his arm was put in a sling.  He was left with the use of only one arm.  This is an accurate representation as he suffered no other injuries.  Medical documents do not indicate that the injury rendered the applicant incapable of performing ADLs per TSGLI guidelines.  HRC recommended disapproval of the applicant's claim.

4.  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 (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.

5.  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.

6.  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 applicant's counsel contends, in effect, that his TSGLI claim should be reconsidered because the applicant's shoulder injury and resultant loss of ADLs for 120 consecutive days entitles him to the $100,000.00 TSGLI benefit.  Furthermore, the applicant does not now make a hospitalization claim.

2.  The evidence clearly shows the applicant suffered a traumatic injury by falling off a humvee in 2007.  This injury caused pain that subsequently required outpatient arthroscopic surgery.

3.  There is evidence showing that he initially applied in 2011 and his claim was reconsidered in 2011 and appealed in 2012.  His requests were denied because he failed to provide adequate medical documentation showing that his injury resulted in a qualifying loss or the inability to carry out two of the six ADLs.

4.  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)                                         AR20120022988





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022988



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1