IN THE CASE OF:	  

		BOARD DATE:  7 January 2014

		DOCKET NUMBER:  AR20130005714 


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 records to show entitlement to payment under the Traumatic Servicemembers' Group Life Insurance (TSGLI).

2.  The applicant states:

* he suffered a combat-related injury on 31 January 2007
* at first he discounted the pain and stiffness; however, it got progressively worse
* in December 2007 he collapsed in his bathroom due to intense pain and was taken to the emergency room
* he had surgery in May 2008 which was a failure
* he spent 8 months in a body brace following the surgery and had to have assistance for his daily functioning
* in October 2008, one of the screws was out of place and the rods were bending
* he underwent a second surgery in January 2009 and was in a back brace for 6 weeks

3.  The applicant provides copies of his medical records from March 2007 through January 2010 and Department of Veterans Affairs (VA) disability rating decisions.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 May 1998.  He was awarded military occupational specialty 91M (Bradley Fighting Vehicle Maintainer).

2.  The applicant sustained a back injury in a mortar attack at Camp Hit, Iraq, on 31 January 2007.

3.  The medical records provided show he was treated with conservative therapy, including physical therapy, chiropractic manipulation, steroid injections, and nerve block therapy, all of which failed to relieve the problem.

4.  On 18 November 2007, he was treated in the emergency room for severe back pain.

5.  The applicant did not provide any medical documentation for surgery in May 2008.

6.  On 18 May 2009, he underwent surgery for L4-S1 transformational lumbar interbody fusion without complications.

7.  On 1 March 2011, the applicant was retired by reason of temporary disability (enhanced) and placed on the Temporary Disability Retired List.

8.  On 29 March 2011, the VA awarded the applicant service connection for the following conditions:

* 50 percent for obstructive sleep apnea and post-traumatic stress disorder
* 20 percent for lumbar spine degenerative disc and stenosis
* 10 percent for right shoulder strain, tinnitus, gastroesophageal reflux disease, right upper extremity radiculopathy, right lower extremity radiculopathy
* 0 percent for right knee strain; folliculitis; residuals of tonsillectomy, adenoidectomy, uvuloplasty; hypertension, and scarring of the right cheek, left forearm, right shoulder, lumbar spine, and anterior abdomen

9.  On 22 June 2011, the applicant was awarded Combat-Related Special Compensation as follows:

* 50 percent for post-traumatic stress disorder
* 10 percent for cervical spine degenerative disease, right shoulder strain, gastroesophageal reflux disease, right upper extremity radiculophathy, tinnitus

10.  The applicant filed his initial TSGLI application on 17 December 2010 which was denied on 27 December 2010.  He requested reconsideration on 20 February 2011 which was denied on 4 March 2011.  He appealed his case on 2 June 2011 which was denied on 7 July 2011.

11.  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.  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.  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.

12.  The VA is the agency tasked with final administration of TSGLI.  The VA TSGLI website provides the following information in accordance with Title 38, Code of Federal Regulations (CFR), section 9.20, and Public Law 109-13:

	a.  The TSGLI rider provides for payment to Servicemembers who are severely injured and incurred a loss as a result of a traumatic event.

	b.  For the purposes of TSGLI, a traumatic event is defined as the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being.  The term "traumatic injury" does not include damage to a living body caused by a mental disorder or a mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance.

	c.  A service member must meet all of the following requirements to be eligible for payment of TSGLI:

		(1)  have been insured by SGLI at the time of the traumatic event,

		(2)  have incurred a scheduled loss and that loss must be a direct result of a traumatic injury,

		(3)  have suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services,

		(4)  have suffered a scheduled loss within 2 years (730 days) of the traumatic injury, and

		(5)  have survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case).

	d.  The TSGLI Schedule of Losses is comprised of two parts.  Part I lists specific losses that include items like loss of an extremity, an inability to speak or see, and similar items.  Part II addresses the inability to carry out activities of daily living (ADL) due to a loss directly resulting from a traumatic injury other than a brain injury.

	e.  TSGLI claims may be filed for loss of basic ADL if the claimant is completely dependent on someone else to perform two of the six basic ADL 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 medical documents demonstrating the injury type and duration of ADL loss.  In addition to certification from a healthcare provider, applicants must provide additional documentation to substantiate the certification.

	f.  Basic ADL consist of the following self-care tasks:

* maintaining basic personal hygiene – bathing, showering, and personal grooming
* dressing oneself
* feeding oneself
* voluntary urinary and bowel control
* functional mobility
* sleeping

	g.  The duration of the inability to carry out ADL includes the day of onset of the inability to carry out ADL and the day when the member can once again carry out ADL.  The rates of payment are as follows:

* at the 30th consecutive day of the inability to carry out ADL – $25,000.00
* at the 60th consecutive day of the inability to carry out ADL – an additional $25,000.00
* at the 90th consecutive day of the inability to carry out ADL – an additional $25,000.00
* at the 120th consecutive day of the inability to carry out ADL – an additional $25,000.00 (a maximum of $100,000.00)

	h.  Each Uniformed Service will certify the eligibility of its own members for traumatic injury protection benefits based upon Public Law 109-13, section 1032, and Title 38, CFR, section 9.20.

13.  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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states 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.  While the medical records provided do show the applicant suffered from a deteriorating back condition, there is no evidence of the May 2008 failed surgery or subsequent treatment with a body brace or a back brace.

2.  The applicant's records do not contain and he has not provided copies of his applications for TSGLI, the denial letters, or signed statements from physicians attesting to the nature or duration of his ADL loss, if any.

3.  Without verifiable evidence of the applicant's contentions, the presumption of regularity must be applied and the applicant's request should be denied.

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 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)                                         AR20130005714



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ABCMR Record of Proceedings (cont)                                         AR20130005714



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