IN THE CASE OF:	  

		BOARD DATE:  19 November 2013

		DOCKET NUMBER:  AR20130000693 


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 correction of his record to show he is eligible for compensation under the Traumatic Servicemembers’ Group Life Insurance (TSGLI) Program.

2.  The applicant states while serving in Iraq he was wounded in action by shrapnel from a vehicle-borne improvised explosive device (VBIED) on 
15 March 2005.  The shrapnel penetrated his left thigh, right hip, penis, and face. A piece of shrapnel is still lodged in his penis to this day.  The injury to his penis has rendered him with permanent loss of use of his penis.  He can only get a partial erection but it is extremely painful.  

3.  The damage to his penis shaft resulted in complete loss of the ability to perform sexual intercourse.  He states the Special Compensation Branch (SCB), U.S. Army Human Resources Command disapproved his request for compensation on several occasions.  The SCB mishandled the processing procedure for his applications.  The SCB did not properly consider his applications under the correct category of permanent loss of use of penis; instead, they reviewed his application as permanent loss of penis.

4.  On 13 November 2013, he submitted new statements for TSGLI consideration.  In pertinent part, he states "After returning home, I saw Dr. K__________ M______, MD Chief of Urology on September 13, 2007.  He noted that I could not get an erection because of the pain and offered no solution.  He stated that the nerve damage was permanent.  On July 17, 2012, I saw Dr. J___ S______ who also offered no solution after visible examination.  Finally, on September 19, 2012 Dr. K__________ M______ MD, Chief of Urology at the South East [sic] Louisiana Veterans Health Care System certified that I was suffering from permanent loss of the use of the penis after visible exam.  No solution has ever been offered by the medical professional who has visibly examined my penis.  Further, there is no indication in either my Army or VA medical record of any information to the contrary.  In fact I do not have a wife or child to this day because of my wounds."

5.  The applicant states he meets the five requirements for TSGLI eligibility and he should be paid according to the schedule of losses in the amount of $50,000.
He lists the following:

   a.  The member must suffer a scheduled loss that is a direct result of a traumatic event.  He applied under the schedule of the loss entitled permanent use of loss of penis.

   b.  The member must have suffered the traumatic event before midnight of the day that the member separates from the uniformed services.  He served on active duty in Iraq from 15 May 2004 to 20 November 2005.  His injury occurred on 15 March 2005.

   c.  The member must suffer the scheduled loss within two years of the traumatic event.  His loss was suffered immediately on 15 March 2005 and has persisted since.

   d.  The member must survive for a period of at least seven full days from the date of the traumatic event.  He is currently living.

   e.  For those injured between 17 October 2001 and 30 November 2005, SGLI coverage is not required to be eligible for TSGLI.  He was wounded within the window.

6.  The applicant provides:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 20 November 2005 and 23 February 2006
* Application for TSGLI Benefits
* Narrative to Accompany the Award of the Bronze Star Medal (for Valor)
* two memoranda from the SCB
* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 22 March 2005
* DD Form 2808 (Report of Medical Examination), dated 8 June 2007
* 2-page Department of Veterans Affairs (VA) Compensation and Pension Examination Report, dated 18 September 2007
* page 2 of a VA Form 646 (Statement of Accredited Representative in Appealed Case)
* 1-page VA Progress Notes, dated 16 December 2008
* 1-page VA Rating Decision, dated 9 September 2009
* 4-page SF 513 (Consultation Sheet), dated 17 July 2012


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Louisiana Army National Guard (LAARNG) on 
11 July 2001.  He successfully completed training and was awarded military occupational specialty 11B (Infantryman).

2.  A DD Form 214 for the period ending 20 November 2005 shows the applicant served in Iraq during the period 5 October 2004 to 17 September 2005.

3.  An SF 600, dated 22 March 2005, shows the applicant was treated for shrapnel wounds to his left thigh, right hip, penis, and face he received in action on 15 March 2005.

4.  A DD Form 2808, dated 8 June 2007, shows he was administered a physical examination.  Item 32 (External Genitalia) shows abnormalities, small shrapnel in the soft tissue at shaft of penis.

5.  A two-page VA Compensation and Pension Examination Report, dated 
18 September 2007, shows the applicant was administered a genitourinary examination.  His diagnosis indicated the injury to his penis caused painful erections.

6.  VA Progress Notes, dated 16 December 2008, show that the applicant has pain during erection.

7.  On 9 September 2009, the VA rated the applicant with service-connected disabilities as follows:

* increase from 30 percent to 50 percent - post-traumatic stress disorder
* 10 percent - shrapnel, over the penis
* 10 percent - traumatic brain injury (formerly evaluated as post-concussion syndrome)
* 10 percent - tinnitus
* 0 percent - shrapnel injury, right hip with scar
* 0 percent - shrapnel injury, left leg, left thigh with scar

8.  Page 2 of a VA Form 646 notes "shrapnel embedded in his penis and was visible without x-ray.  The veteran asserts that this shrapnel causes pain and does not allow him to have any erection.  The visible shrapnel was an important part of this issue in that it now causes a deformity to the penis.  He further asserts that he can not [sic] achieve an erection due to the pain caused by the embedded shrapnel which produces a loss of erectile power."

9.  A four-page SF Form 513, dated 18 September 2012, shows the applicant requested a urology consultation.  His complaint was chronic pain and erectile dysfunction from the shrapnel injury to his penis.  The applicant stated the 
shrapnel fragment was still embedded in his penis.  He was unable get an erection.  He had tried Viagra and Cialis, which resulted in a partial erection but was extremely painful, and he was unable to take [the medicine] or get an erection.

10.  He was examined by the Chief of Urology from the Southeast Louisiana Veterans Health Care System (SLVHCS).  The official diagnosed the applicant with erectile dysfunction/traumatic injury incurred in Iraq in 2005.  The official indicated a small foreign body that might be a metal fragment visible under surface of skin to right side of penile shaft without plaque or curvature.

11.  An Application for TSGLI Benefits, dated 19 September 2012, shows the applicant requested TSGLI payment for permanent loss of use of his penis in the amount of $50,000.  The applicant provided the above medical documents as enclosures to his application.  He stated he was wounded in action in Baghdad, Iraq while conducting combat operations when a VBIED detonated within feet of his foot patrol.  Shrapnel from the explosion caused severe injuries to his body including a piece of shrapnel embedded in his penis.  The damage to his penis shaft resulted in complete loss of the ability to perform sexual intercourse.  The shrapnel presently remains visibly embedded in his penis.

12.  In the Medical Professional's Comments section of the form, the Chief of Urology, SLVHCS, stated the applicant suffered a shrapnel injury to his penis while deployed to Iraq.  The shrapnel fragment remained in his penis and was visible on x-ray.  The applicant was unable to achieve an erection since the traumatic injury.  He tried medications with partial erection, but he was unable to continue the use of his penis due to extreme pain.  The Chief of Urology further indicated she did not observe the applicant's loss, but reviewed his medical records. 

13.  On 31 October 2012 and 10 December 2012, the SCB denied the applicant's requests for TSGLI compensation.  The official indicated the applicant's medical documents did not show he was qualified for permanent loss of his penis per the TSGLI guidelines.  The denials incorrectly show he applied for permanent loss of his penis, instead of permanent loss of use of his penis.

14.  Orders 124-091, dated 4 May 2013, issued by the LAARNG, show the applicant was honorably discharged from the Army National Guard and assigned to the U.S. Army Reserve (USAR) Control Group (IRR) effective 4 May 2013.

15.  Orders D-07-311616, dated 16 July 2013, issued by HRC, show the applicant was honorably discharged from the USAR effective 16 July 2013.

16.  A physician write-up from a TSGLI medical consultant shows the applicant's initial application was denied on 27 April 2006, his application for reconsideration was denied on 7 July 2006, and his appeal was denied on 26 September 2012.  

17.  The TSGLI medical consultant stated the medical documents provided by the applicant showed the presence of one small fragment of shrapnel in the penis.  However, no report of consultation with a urologist or potential treatment for removal of the shrapnel had been submitted.  The medical consultant stated, "This claim may have merit but an evaluation by a urologist, and a discussion of potential treatments that could be [or have been] offered/performed, is required to properly adjudicate."  The medical consultant concluded the medical documents provided did not indicate the loss met the TSGLI minimum standard.  

18.  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 11 May 2005, established the TSGLI program.  U.S. Army Combat-Related Special Compensation has been designated as the lead agent for implementing the Army's 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 VA in coordination with the Department of Defense.  As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage. 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 Enduring Freedom and Operation Iraqi Freedom or under orders in a combat zone tax exclusion area are covered regardless of whether or not they elected SGLI coverage.  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.

19.  The TSGLI Procedures Guide 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.  The guide further states the event must involve a physical 
impact upon an individual.  Some examples would include an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head.  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, such as straining one's back from lifting a ladder.

20.  When a member suffers permanent loss of use of the penis, the member is eligible for a TSGLI benefit if the member meets the following standard: 

   a.  Damage to the glans penis that results in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member. 

   b.  Damage to the shaft of the penis that results in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he is eligible for compensation under the TSGLI Program was carefully considered and was not supported by the medical documents provided.  He states based on the shrapnel imbedded in his penis, he has permanent loss of use of his penis to achieve erection or perform sexual intercourse.  There is no evidence and he has not provided evidence that show he suffered from a permanent loss of use of the penis by a certified urologist.  

2. The medical documents provided by the applicant show the presence of a small shrapnel fragment embedded in his penis.  The medical documents further show that he asserted it was extremely painful to obtain an erection and perform intercourse due to the shrapnel embedded in his penis.  However, there are no medical documents which show he sought professional advice on removing the embedded shrapnel from his penis or received medical consultation to remedy his injury. 

3.  According to the TSGLI physician write-up the medical documents provided did not meet the minimum standard for the permanent loss of use of his penis for the TSGLI.  The physician further stated "This claim may have merit but an evaluation by a urologist, and a discussion of potential treatments that could be [or have been] offered/performed, is required to properly adjudicate."

4.  To be eligible for TSGLI for permanent loss of use of the penis, damage to the shaft of the penis must result in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member.  It would be premature to grant his request in the absence of evidence showing an appropriate medical expert has determined that corrective surgery or some other means of repairing his penis is not a reasonable option and is unlikely to be an option for him in his lifetime.   If he obtains this evidence he should first reapply to the SCB.

5.  Based on the foregoing, there is no basis to grant the relief requested at this time.

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)                                         AR20130000693



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ABCMR Record of Proceedings (cont)                                         AR20130000693



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