IN THE CASE OF:	  

		BOARD DATE:  25 July 2013

		DOCKET NUMBER:  AR20130001183 


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, in effect, that her Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim be reconsidered.

2.  The applicant states:

	a.  she was denied TSGLI benefits because the medical documentation she submitted did not indicate that she was incapable of performing the dressing and bathing Activities of Daily Living (ADL) for a period of 30 days;

	b.  the doctor who performed the capsulectomy on 27 September 2010 and completed the medical professional's statement of the TSGLI application clearly listed her post-discharge limitations on the plastic surgery note, dated 10 August 2010; 

	c.  the visit notes from Horizon Home Health and Hospice documents over
30 days of physical and standby assistance for two ADLs, bathing and dressing; and

	d.  without the physical, stand-by, or verbal assistance, she would have been incapable of performing the above ADLs.





3.  The applicant provides a:

* denial letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 28 March 2012;
* Plastic surgery note, dated 10 August 2010
* Multiple visit notes, from Horizon Home Health and Hospice, dated between 28 September and 8 November 2010
* TSGLI application, dated 9 November 2010

CONSIDERATION OF EVIDENCE:

1.  On 14 August 2008, the applicant enlisted in the Idaho Army National Guard (IDARNG).

2.  Her records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 December 2008, that shows she sustained an injury while practicing combat maneuvers on this date.  It appears she was kicked in the ribs and had pain in the chest and swelling around her breast implant.  

3.  According to the narrative in her subsequent physical evaluation board (PEB) proceedings she had a line of duty injury, dated 13 December 2008, during drill weekend when she sustained an injury to her chest during combative training. 

4.  On 24 February 2009, she entered active duty for training in military occupational specialty 92A (Automated Logistical Specialist).  

5.  Her records also contain a DA Form 2173, dated 16 October 2009, which shows that on 10 March 2009 she sustained injuries while performing normal physical activities of basic combat training at Fort Jackson, SC.  She was participating in training on Victory tower and a company road march, along with other activities.  The nature of her injury was that of a left tibial plateau stress fracture and overuse syndrome of both knees. 

6.  Her narrative summary is not available for review with this case.  However, it appears medical officials determined she had certain medically unacceptable conditions diagnosed by a medical examination related to a medical evaluation board (MEB).  It also appears the MEB referred her to a PEB.  The MEB proceedings are not available for review this case. 





7.  On 3 December 2009, an informal PEB convened and found her medical conditions prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit.  She was rated under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities and granted a 30-percent combined disability rating.  The PEB rated her for the following medically unfitting conditions: 

	a.  Chronic chest pain due to costochondritis analogous to neurolgia of the long thoracic nerve.  She reported being injured during combative training when she was kicked in the ribs in December 2008, followed by continuous chest pain that worsened with deep respiration.  

	b.  Sacroilic injury listed as acute lower back pain due to sacroiliitis.  She developed back pain in August 2009 when her left knee gave way and she stumbled and twisted her back.  

	c.  Arthritis, degenerative, listed as chronic left knee and leg pain due to lateral tibial plateau stress reaction and chondromalacia patella.  

	d.  Chronic left wrist pain due to flexor tendonitis analogous to tenosynovitis.

8.  The PEB recommended permanent disability retirement.  She concurred and waived her right to a formal hearing.  Accordingly, she was retired from active duty on 17 December 2009 and placed on the Retired List in her retired rank/grade of private first class/E-3 on 18 December 2009.  She completed 9 months and 24 days of active service. 

9.  On 19 November 2010, she submitted a TSGLI application.  She stated that on 13 December 2008, during combative training in Boise, ID, her left breast implant was dislodged due to direct leg/knee impact on the left rib cage and chest area.  On 27 September 2010, she had surgery to replace the left breast implant at the Portland, OR, VA Hospital.  She claimed "Other Traumatic Injury" and indicated she could not perform "dressing" and "bathing" independently.  She stated:

	a.  She was unable to bathe independently from 27 September to 7 November 2010 and she needed stand-by assistance.

	b.  She was unable to dress independently from 27 September to 7 November 2010 and she needed stand-by assistance.



10.  A medical professional listed his name and address, and indicated he observed the patient's loss and signed this form on 9 November 2010. 

11.  On 20 December 2010, her claim for TSGLI was denied.  She was informed that according to the Schedule of Losses, a traumatic injury, other than traumatic brain injury, resulting in the inability to perform at least two ADLs was unsupported.  The medical professional's statement did not indicate her loss met the minimum TSGLI standards. 

12.  On 15 February 2011, she submitted a request for reconsideration but her request for reconsideration was also denied on 1 April 2011.  She was again advised that based on the documentation she provided to verify her claim, the TSGLI office was unable to find any documentary evidence to reverse the denial of her claim; therefore, the decision on her case remained unchanged.

13.  On 11 January 2012, she submitted another appeal but this one was also denied on 27 February 2012.  She was informed that her claim for ADL loss following an implant replacement surgery as a result of blunt force trauma to the chest was unsubstantiated.  The medical documentation she submitted did not indicate she was unable to perform the ADLs of dressing and bathing for a period greater than 30 days. 

14.  She provided multiple visit notes from Horizon Home Health and Hospice, dated between 28 September and 8 November 2010.  These notes show:

* they are generally one hour in length and twice per day
* they are signed by certified nurse assistants
* the activities noted vary from assisting with a sponge bath to brushing her hair and taking lids off, blow-drying hair, and placing lotion on her feet
* the ADL assistance is not consistent and varies daily
* several days have activities noted as "patient requests" and included housekeeping services
* the activity lists indicate the assistance was more to provide the applicant a rest while recuperating than an absolute medical need

15.  Public Law 109-13, signed by the President on May 11, 2005, established the 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 (DOD).  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 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 or the location in which they incurred the injury will be covered by TSGLI.

16.  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 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:  total and permanent loss of sight in one or both eyes, loss of hand or foot by severance at or above the wrist or ankle, total and permanent loss of hearing in one or both ears, loss of speech, loss of thumb and index finger of the same hand by severance at or above the metacarpo- phalandeal joints, quadriplegia, paraplegia or hemiplegic, third (3rd) degree or worse burns covering 30% of body or 30% of the face, and coma or TBI.

17.  Traumatic injuries resulting in the inability to carry out two of the six ADLs 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 two of the six ADLs for 30 days or more.  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.  The applicant claims she sustained an injury during combative training that dislodged her breast implant.  The left breast implant was replaced on 27 September 2010, nearly 2 years after the injury.  There are no medical documents in her record prior to the replacement surgery verifying her inability to perform ADLs.  

2.  The post-surgery Horizon Home Health and Hospice visit for assistance notes she provides are generally one hour in length and, twice per day.  These documents show the activities noted vary from assisting with a sponge bath to brushing of the hair and taking lids off.  The ADL assistance is not consistent and varied daily.  Furthermore, several days have activities noted as "patient requests."  

3.  By law, for an ADL loss to be covered there must have been a traumatic event that led to a loss for a duration of at least 30 days; the member must have required assistance to perform two of six ADLs; and the ADL loss must have been certified by a healthcare provider and substantiated by appropriate documentation, such as occupational therapy/physical therapy reports, discharge summaries, and other medical documentation.  

4.  TSGLI analysts strive to apply a "reasonable person" standard to each claim with a bias in favor of the claimant while still maintaining a high degree of internal consistency among similar claims.  There is no medical documentation indicating a physical incapacity of performing ADLs without assistance.  The activity lists indicate the assistance was more to provide the applicant a rest while recuperating more than an absolute medical need.  Additionally, the providers are certified nursing assistants, not of a professional medical level such as nurses.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130001183



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ABCMR Record of Proceedings (cont)                                         AR20130001183



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