IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130003201 


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 his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim be reconsidered.

2.  The applicant states his TSGLI claim was denied in September 2011.  He further claims that he has suffered from a traumatic brain injury that is secondary to his initial military trauma since 2003.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Medical Record Progress Notes, dated 25 July and 16 August 2006
* Medical Record - Problem List, covering events between 26 August 2005 and 3 July 2008
* A Summary of Veterans Benefits, dated April 2008 (1 page only)
* Letter written to the Department of the Army, TSGLI, dated 1 August 2008
* Medical Progress Note, dated 28 April 2009
* Letter from the Veterans Administration Medical Center, dated 5 June 2009
* Department of Veterans Affairs (VA) Rating Decision, dated 27 November 2009
* Message Confirmation Report, dated 8 April 2011
* Message Confirmation Report, dated 1 August 2011
* Letter from the U.S. Army Human Resources Command (HRC), dated
8 September 2011
* Urinary Retention information (2 pages)
* Your Urinary System and How it Works information (9 pages)

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant enlisted in the Regular Army on 30 July 2002 for a period of 4 years.  He was awarded military occupational specialty (MOS) 88H (Cargo Specialist).

2.  Records show that on 27 April 2003, the applicant fell 10 feet from a large truck and landed flat on his back.  This accident occurred while he was deployed to Iraq.  He was subsequently evacuated to the Army hospital in Landstuhl, Germany, where he was evaluated by an orthopedic surgeon.  His injury was determined to be non-operative.  He was returned to Fort Bragg, NC and sent to physical therapy.

3.  A DA Form 3349 (Physical Profile) dated 21 June 2004, awarded the applicant a permanent physical profile rating of 3 for lower extremities.  He was restricted from performing any of the normal Army physical fitness test events.  He was only permitted to walk at his own pace and distance.

4.  On 27 September 2004, a Medical Evaluation Board (MEB) convened to consider the applicant's medical condition.  The MEB found that his chronic low back pain was incurred while he was entitled to base pay and recommended that he be referred to a physical evaluation board (PEB).  The applicant indicated that he agreed with the MEB findings and did not desire to remain on active duty.

5.  On 18 October 2004, an informal PEB convened and considered the applicant's chronic lower back pain that resulted from his 10-foot fall in 2003.  The PEB rated his injury in accordance with the VA Schedule for Rating Disabilities (VASRD) using VA Code 5237 for chronic low back pain.  He received a 10 percent disability rating and he was found to be unfit for military service.  The applicant did not concur with the PEB determination and demanded a formal hearing.

6.  On 19 January 2005, a formal PEB convened to consider the applicant's medical condition.  The PEB again found him to be unfit based on a chronic low back pain rated as 10 percent disabling in accordance with VASRD code 5237.  The applicant non-concurred with the decision.  He stated in his argument to the PEB that when a Soldier, who is almost entirely unable to function in life, walks away from a formal PEB with only a 10 percent rating then either the system is broken, or he did not receive the correct rating.

7.  On 29 July 2005, the applicant was discharged due to physical disability.  He had completed 3 years of active duty service.

8.  The available records do not contain any copies of the applicant's requests claiming TSGLI benefits.

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

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

* Initial application on or about 26 August 2007
* Initial application denied on 15 January 2008
* Application reconsidered on 8 April 2011
* Reconsideration denied on 20 May 2011
* Appeal received in 2011 (specific date unavailable/unknown)
* Appeal denied on 23 August 2011

	b.  Summary of case:  the applicant was injured in a fall from a truck.  During the course of the following 2 years, he was thoroughly evaluated and provided a full range of treatment.  No surgery was indicated.  An MEB specialty consultation some 21 months after the injury described severe muscle spasm and a history of difficulty with his MOS requirements and some activities of daily living (ADL).  Electrodiagnostic studies were negative.  The applicant submitted a claim based on incontinence due to neurogenic bowel and bladder secondary to cauda equine syndrome.  However, there was no evidence in the records submitted supporting any of these diagnoses or losses occurring within the 
2-year requirement of the injury.

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 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.

11.  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.
12.  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 contends, in effect, that his TSGLI claim should be reconsidered because he has suffered since 2003 from a traumatic brain injury that is secondary to his initial military trauma.

2.  The evidence clearly shows the applicant received a traumatic injury by falling off of a truck in 2003.  This injury resulted in a PEB rating of 10 percent for low back pain for which he was subsequently discharged.

3.  The available evidence does not contain copies of his TSGLI claim requests due to his injury.  However there is evidence showing that he initially applied in 2007 and his claim was reconsidered in 2011 and appealed in 2011.  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)                                         AR20130003201



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ABCMR Record of Proceedings (cont)                                         AR20130003201



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