IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130002235 


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 approval of his Traumatic Servicemembers' Group Life Insurance (TSGLI) claim.

2.  The applicant states his initial claim for TSGLI was denied because his medical records were incomplete.  Specifically, permanent hearing loss was not included when he submitted his claims in 2009 and 2010.  In September 2012, he learned that his permanent hearing loss was confirmed and he was advised to resubmit his TSGLI claim to the U.S. Army Human Resources Command (HRC), Fort Knox, KY, for review.  However, he was then informed that he should apply to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides copies his Army Hearing Test, Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) records, SGLV Form 8600 (TSGLI Claim), and HRC and Department of Veterans Affairs (VA) letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable active enlisted service in the U.S. Army from 22 October 1986 through 21 October 1988 and from 27 September 1990 through 14 July 1994.  He was awarded military occupational specialty 11B (Infantryman).

2.  He enlisted in the Regular Army on 10 March 2005.  He served in Iraq from 9 August 2006 through 29 October 2007.
3.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant was injured in Iraq, on 12 April 2007, when an improvised explosive device (IED) exploded near the right side of the up-armored HUMVEE that he was riding in.  His injuries were found to have been incurred in line of duty.

4.  A DA Form 199 (PEB Proceedings) shows, on 25 September 2009, an informal PEB found the applicant physically unfit for continuation on active duty due to:

* traumatic brain injury (TBI), manifested by cognitive disorder - 70%
* post-traumatic stress disorder (PTSD), described in the setting of depression and panic disorder - 50%
* degenerative arthritis of the spine, described by the MEB as cervical spine pain - 10%
* vertebral fracture, resulting in chronic back pain - 10%
* migraine headaches - 10%
* sensori neural hearing loss (SNHL) - 10%

   a.  The Disability Description shows, in pertinent part, "Soldier suffered ruptured eardrums in Iraq in the IED attack on 12 April 2007.  The eardrums have healed; however the Soldier has moderate SNHL requiring an H4 on the 
DA Form 3349 (Physical Profile), which requires hearing aids.  Thympanograms were normal.  Pure tone threshold average:  Right = 50, Left = 48 Maryland CNC [Consonant-Vowel Nucleus-Consonant] Word List:  Right = 70, Left = 72.  Hearing is unfitting as Soldier cannot meet minimum requirements of an 11B [Infantryman] (P111221).  Rated for mild to moderate severe SNHL, left ear; mild to severe SNHL, right ear."

   b.  The remaining conditions listed as MEB diagnoses were determined to meet retention standards and not unfitting.

   c.  The PEB recommended permanent disability retirement with a combined rating of 90%.

   d.  The applicant concurred with the PEB's findings and waived a formal hearing.

   e.  On 9 October 2009, the PEB was approved for the Secretary of the Army.

5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired from active duty on 29 November 2009 based on permanent disability.  He was placed on the retired list in the rank of staff sergeant/pay grade E-6 effective 30 November 2009.
6.  VA Regional Office, Columbia, SC, letter, dated 17 March 2010, shows the applicant's claim for service connected compensation was received on
30 October 2009 and a decision was made prior to his release from active duty. His overall or combined rating was 90% effective 30 November 2009.  It also shows, in pertinent part, that service connection was granted for:

* tinnitus with an evaluation of 10% 
* bilateral hearing loss with an evaluation of 0%

7.  On 28 April 2010, the applicant submitted his claim for Combat-Related Special Compensation (CRSC).  Enclosed was a copy of his VA Rating Decision, dated 17 March 2010, that shows service connection was granted for, in pertinent part:

   a.  tinnitus with an evaluation of 10% effective 30 November 2009.  (Service treatment records included an MEB, dated 12 May 2009, when the applicant reported tinnitus since an IED explosion on 12 April 2007.  A VA examination was conducted on 8 January 2010.  The examiner opined that the applicant's tinnitus was as likely as not a symptom associated with his hearing loss.)

   b.  bilateral hearing loss with an evaluation of 0% effective 30 November 2009.  (Service treatment records included an audiogram conducted on 25 July 2006 that showed normal hearing bilaterally.  During the VA examination conducted on 8 January 2010, the applicant reported the use of hearing aids due to hearing loss resulting from an IED blast on 12 April 2007.  Based on the results of two objective hearing tests, the examiner diagnosed the applicant's bilateral SNHL.  The evaluation for hearing loss is based on objective testing and higher evaluations are assigned for more severe hearing impairment.)

8.  HRC, CRSC Branch, Fort Knox, KY, memorandum, dated 14 June 2010, shows the applicant was granted CRSC with a total combat-related disability of 90% effective December 2009.  It also shows that documentation verifies, in pertinent part, disability as combat-related for:

* bilateral hearing loss with an evaluation of 0%
* tinnitus with an evaluation of 10% 

9.  In support of his application the applicant provides the following documents:

   a.  A DD Form 2216E (Hearing Conservation Data) that documents the results of an Audiogram on 9 September 2008 and referenced an Audiogram, dated 25 July 2006.  It shows the applicant had a significant threshold shift in his hearing and that he acknowledged the need to return for follow-up evaluation.
   b.  A DA Form 5889 (PEB Referral Transmittal Document), dated 20 August 2009; DA Form 3947 (MEB Proceedings), dated 19 August 2009; and Moncrief Army Community Hospital, Fort Jackson, SC, MEB records, dated 18 August 2009; that show the MEB narrative summary was based upon physical evaluations performed by the attending physicians on 9 December 2008, 
8 January, 12 February, and 13 July 2009.

 	 	(1)  The MEB found, in pertinent part, the applicant's SNHL, both ears, 
H4 level, was incurred while he was entitled to base pay and was medically unacceptable in accordance with Army Regulation 40-501 (Medical Fitness Standards).

    	(2)  The MEB recommended the applicant be referred to a PEB and the findings and recommendations were approved on 19 August 2009.

    	(3)  The applicant concurred with the findings and recommendations.  

   c.  An SGLV 8600, dated 2 November 2012, that shows the applicant's TSGLI claim was based on injuries he sustained in Iraq, on 12 April 2007, when an IED exploded and, in pertinent part, ruptured his eardrums.  

    	(1)  He noted that he wears hearing aids on a permanent basis and the 
VA continues to evaluate his hearing on a periodic basis.  He reported his average hearing acuity measured without amplification device is Left Ear = 
83 decibels and Right Ear = 88 decibels.

    	(2)  Item 6 (Medical Professional's Information) shows, on 31 October 2012, Ms. Tina O. K----, Audiologist, indicated that she has observed the applicant's (hearing) loss and that he is capable of handling his own affairs.

   d.  HRC, Special Compensation Branch (TSGLI), Fort Knox, KY, memorandum, dated 8 November 2012, that shows the applicant's TSGLI appeal request was received.  However, based on the documentation he provided, they were unable to find any documentary evidence to reverse his claim.

   e.  VA Medical Center, Columbia, SC, letter, dated 30 November 2012, that shows Stacy G---, Social Work Case Manager, reviewed the applicant's medical records and, based on the severity of hearing loss the applicant sustained while in combat on 12 April 2007, he appears to eligible for TSGLI.

10.  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.  HRC, Special Compensation Branch, 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.  The 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.

11.  There are 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 several types of losses including total and permanent loss of hearing in one or both ears.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is qualified for TSGLI benefits based on permanent hearing loss was carefully considered and unfortunately determined to be without merit.

2.  The evidence of record clearly shows that on 12 April 2007 he sustained ruptured eardrums and that the injury resulted in bilateral SNHL with an evaluation of 0%.  The evidence of record also shows the applicant wears hearing aids on a permanent basis and the VA continues to evaluate his hearing on a periodic basis.  On 31 October 2012, an Audiologist observed the applicant's hearing loss and indicated that he is capable of handling his own affairs.

3.  There is no evidence of record that shows the applicant has total and permanent (emphasis added) loss of hearing in one or both ears.

4.  The available medical evidence does not support the applicant's claim for TSGLI.

5.  Therefore, the evidence is insufficient to support a change to the previous decisions rendered by the appropriate TSGLI officials.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The applicant and all others should know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20130002235



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ABCMR Record of Proceedings (cont)                                         AR20130002235



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