IN THE CASE OF:	  

		BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130006202 


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:

The applicant defers his request to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim be approved for the amount of $100,000.00.

2.  Counsel states the applicant should be paid $100,000.00 because the injury he incurred on 1 May 2010 and subsequent complications rendered him incapable of performing at least two of the Activity of Daily Living (ADLs) without assistance for more than 120 days.

	a.  On 2 May 2010, during active duty training (ADT), the applicant suffered a traumatic injury when a falling locker caused a complete right biceps tear.  A week later, he underwent surgery.  As a result of the surgery, he developed a chronic infection at the surgical site that degraded into osteomyelitis.  The infection lasted until approximately October of 2010.  The infection caused nerve damage, confirmed in part by nerve conduction tests that produced swelling, loss of strength, loss of endurance, and paralysis of the fingers on his right hand.  He is right-hand dominant.  Despite intensive and prolonged physical therapy, his right arm and hand still exhibit paralysis, clawing, loss of strength and endurance, as well as chronic pain.  


	b.  Between 2 May 2010 and October of 2010, the applicant underwent numerous surgeries and weeks of intravenous antibiotics.  Throughout this time, due to the pain, paralysis and swelling, his right arm and dominant right hand were rendered functionally useless.  Therefore, during this time he required the assistance of his wife to dress and bathe.  Because he was unable to dress, bathe, or eat without assistance for more than four months, he is entitled to $100,000.00 under the TSGLI policy.

	c.  In April 2012, the applicant applied for TSGLI benefits and was denied.  He thereafter requested an appeal.  The applicant received a letter from the U.S. Army Human Resources Command (HRC), Special Compensation Branch, dated 
5 November 2012, indicating that his requested appeal had been received and informing him that his claim was not approved because the submitted documents did not indicate that his 2 May 2010 injury rendered him incapable of performing ADLs of bathing and dressing for 30 days or more, per TSGLI guidelines.

	d.  The TSGLI policy provisions applicable to the applicant's claim state ADLs "…are routine self-care activities that a person normally performs every day without needing assistance.  There are six basic ADLs: eating, bathing, dressing, toileting, transferring (moving in and out of bed or chair) and continence (managing or controlling bladder and bowel functions)."  A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADLs.  The TSGLI Procedures Guide (Version 2.16 - July 11, 2012), Schedule A, states that a "Traumatic injury resulting in inability to perform at least 2 ADLs" results in a payment amount of $25,000.00 at each 30th consecutive day of ADL loss, up to $100,000.00. 

	e.  The Army denied the applicant's request because his records did not indicate that his 2 May 2010 injury rendered him incapable of performing the ADLs of bathing and dress for 30 days or more, in accordance with (IAW) TSGLI guidelines.  This denial is erroneous and the TSGLI policy should pay out $100,000 for two reasons.

		(1)  First, the previous denial misstates the TSGLI guidelines.  Those guidelines are clear that coverage is triggered when "the member requires assistance to perform at least two of the six activities of daily living...."  Therefore, under the policy language, the trigger for coverage is not whether the veteran is "incapable of performing" ADLs, but whether he "requires assistance to perform" the ADLs.



		(2)  Second, the evidence shows the applicant required assistance with two ADLs - bathing and dressing - for at least four months.  The applicant's TSGLI application states that he could not bathe or dress without assistance due to traumatic injury and the ensuing complications of infection, nerve damage, pain and paralysis of his dominant right hand.  His claim is corroborated by the declaration of his wife, who describes the nature of assistance she had needed to provide him since the accident.

3.  Counsel provides:

* Letter/argument, dated 25 March 2013
* Counsel mentioned a compact disk (CD) containing medical records and Department of Veterans Affairs (VA) claims; however, this CD was not included as part of the evidence counsel submitted
* VA medical records/progress note, dated 19 October 2012
* Letter from HRC, Special Compensation/TSGLI branch, dated 
5 November 2012
* Memorandum from Occupational Consulting Services, dated 18 February 2013
* Declaration of the applicant's spouse, undated

CONSIDERATION OF EVIDENCE:

1.  On 16 November 1982, the applicant enlisted in the Missouri Army National Guard (MOARNG) and served through a series of reenlistments or extensions.  

2.  His record does not contain a DA Form 2173 (Statement of Medical Examination and Duty Status), an SGLV (Servicemembers' Group Life Insurance) Form 8600 (Application for TSGLI Benefits), occupational/physical therapy report clearly documenting the ADL limitations, patient discharge summaries, a medical summary and/or history, an accident report, or a Line of Duty (LOD) investigation or report.

3.  His record contains a letter from the Special Compensation/TSGLI branch, dated 10 December 2012 stating his TSGLI appeal had been denied.  

4.  His records indicate that he claimed the inability to perform two or more ADLs due to Other Traumatic Injury (OTI) for 30, 60, 90, or 120 consecutive days.  The applicant claimed loss of two ADLs (dress and bathe) due to OTI for up to 58 days.  


5.  During the processing of this case, the HRC Special Compensation/TSGLI branch medical consultant provided a summary of the applicant's case submissions wherein he stated the applicant's initial application for TSGLI was received on or about 27 April 2012 and denied on 17 May 2012.  His application for reconsideration was received on or about 1 June 2012 and denied on 19 June 2012.  His appealed application was received on or about 17 August 2012 and denied on 12 October 2012.

6.  In a VA medical records/progress note, dated 19 October 2012, Ms. JW, a nurse practitioner at the VA, indicated the applicant was recently informed he had TSGLI coverage for the injury to his right upper extremity he incurred in 2010.  He requested the TSGLI paperwork be completed and stated that he had nearly full range of motion (ROM) in his right upper extremity.  Ms. JW further stated that she completed the TSGLI paperwork per the applicant's request.  She annotated in the TSGLI paperwork that the applicant had diminished ROM and needed assistance with bathing and dressing from 2 May 2010 to 28 June 2011 because "this is what [the patient] reported" and the VA's computerized patient record system supported his claim.

7.  Counsel provided a letter from the Special Compensation/TSGLI branch, dated 5 November 2012, which stated the TSGLI program office received his 
appeal request.  After reviewing his claim and the supporting documentation, the 
TSGLI office was unable to overturn the previous adjudication.  The applicant's claim was disapproved because the submitted documents did not indicate that his 2 May 2010 injury rendered him incapable of performing the ADLs of bathing and dressing for 30 days or more IAW the TSGLI guidelines.

8.  Counsel provided a memorandum from Occupational Consulting Services, wherein Dr. MP stated that the applicant had been evaluated in his office on 
25 February 2013.  

	a.  Dr. MP wrote "Regarding the [applicant's] TSGLI claim, [counsel] asked [Dr. MP] to answer the following question to a reasonable degree of professional certainty:…‘Would [the applicant's] injuries between [May 2010 through November 2010] render him incapable of dressing himself or bathing himself without the physical assistance of another person for at least 30 days?  If so, how many days?”’

	b.  Dr. MP opined that the applicant's chronic infection following his right biceps tendon repair surgery with post-operative scarring, cellulitis, muscle 


weakness and neuropathic pain rendered him incapable of dressing himself or bathing himself without the physical assistance of another person for at least 120 days beginning in May of 2010.  The applicant has stated to Dr. MP that during this time, and well beyond that timeframe, he lost virtually all functional use of his right hand, and he is right-hand dominant.  The applicant stated to Dr. MP that he was unable to dress for work without the help of his wife and children; similarly, he could not bathe himself during this time without their physical aid.  The applicant's account was corroborated by his wife.  Notably, the applicant was hospitalized twice during this time period for more than a week, and on intravenous antibiotics for more than six weeks.  In addition to his inability to grasp, he was coping with chronic, severe pain and swelling in his right forearm and hand, as well as an open, infected surgical wound and underlying bone infection.  Dr. MP stated his opinion was consistent with the 26 April 2012 opinion of the VA medical center staff who reviewed the applicant's medical records and concluded that for nearly 13 months the applicant had a diminished range of motion and strength involving his right upper extremity and required assistance with bathing and dressing, as well as other ADLs.

9.  Counsel provided an undated declaration of the applicant's spouse, wherein she stated that after the applicant's bicep tendon surgery in May 2010 she had to wash, dress, and assist him with eating.

	a.  Washing and dressing was something the applicant could not do because he had a half cast on his right arm and hand for two weeks following surgery. During this time, he could not take a shower or be immersed in water; therefore, he was only allowed to have a sponge bath.  She and the applicant have a detachable shower head she used to bathe him.  After the first two weeks, the 
applicant was then put in a brace.  He was unable to bathe the upper and lower part of his left arm including underarm, so she had to physically wash that part of his body.  Additionally, she had to physically support his right arm so that he could wash his right underarm, because he could not hold his right arm up long enough.  The applicant could not completely reach from about 8 inches from under his right underarm down to the side of his right knee.  He tried to bathe what he could; however, he still could not really perform any bathing without his wife because of the paralysis in his fingers.  He could not hold the washcloth for very long and did not have the strength in his fingers; therefore, she had to do this for him.  He was unable to wash from his knee down on both legs because of balance and pain issues and he could not wash his back.  This lasted through November 2010.



	b.  During this same time, he could not dress himself without his wife's help.  He could not do any action that required two hands.  She needed to thread and fasten his belt and lace up his boots (which were required for work).  Additionally, he could not button his pants or shirts by himself and could not put on a tie.  Even things that he normally could have done with one hand were more difficult for him because he now had to do them with his left hand.  His wife had to help him get his t-shirt on and off, especially when his right arm was swollen.

	c.  In addition to bathing and dressing, he needed help eating during those first months.  His wife had to cut his food for him and he had to learn to eat with his left hand.  The dexterity in his fingers still has not returned to normal.  During the time from May 2010 through November 2010 he could not bath, dress, or fix meals for himself.

10.  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.  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.

11.  There are basic eligibility requirements that must be met in order to be eligible for TSGLI.  All of the following must be met:

	a.  The member must be an active duty or Reserve service member on the date a traumatic event occurs.

	b.  The member must suffer a loss that is a direct result of a traumatic event and no other cause.

	c.  The member must survive for a period of at least 7 full days from the date of the traumatic event.


	d.  The member must suffer a loss covered under the law within 2 years of the traumatic event.

12.  Traumatic injuries covered under TSGLI may include the following types of losses:

	a.  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, quadriplegia, paraplegia, or hemiplegia, coma or traumatic brain injury.

	b.  Other traumatic injuries resulting in the inability to carry out two of the six ADL which are dressing, bathing, toileting, eating, continence, and transferring.  

13.  The SGLV Form 8600 states that effective 1 December 2005 all service members who are insured under SGLI and experience a traumatic event that results in a traumatic injury which is listed as a qualifying loss are eligible to receive a TSGLI payment.  

	a.  In order to qualify for the TSGLI benefit, a service member must have experienced a traumatic event that resulted in a traumatic injury that is listed as a qualifying loss on the TSGLI Schedule of Losses.  A traumatic event is 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 service member's body.  A traumatic injury is the physical damage to a service member's body that results from a traumatic event.  A qualifying loss is a traumatic injury that is listed on the TSGLI Schedule of Losses, which lists all covered losses and payment amounts.  

	b.  The inability to independently perform ADLs is defined as the inability to independently perform at least two of six ADLs (bathing, continence, dressing, eating, toileting and transferring).  Inability must last for at least 15 consecutive days for traumatic brain injury and at least 30 consecutive days for any other traumatic injury.  The patient is considered unable to perform an activity independently only if he or she requires assistance to perform the activity.  If the patient is able to perform the activity by using accommodating equipment, such as a cane, walker, commode, etc., the patient is considered able to independently perform the activity without requiring assistance.

	c.  Requires assistance is defined as physical assistance (hands-on),
stand-by assistance (within arm’s reach), and verbal assistance (must be instructed because of cognitive impairment), without which the patient would be incapable of performing the task.

		(1)  A patient is unable to bathe independently if he/she requires assistance from another person to bathe (including sponge bath) more than one part of the body or get in or out of the tub or shower.

		(2)  A patient is unable to dress independently is he/she requires assistance from another person to get and put on clothing, socks or shoes.

		(3)  A patient is unable to eat independently is he/she requires assistance from another person to get food from plate to mouth or, to take liquid nourishment from a straw or cup or, he/she is fed intravenously or by a feeding tube.

DISCUSSION AND CONCLUSIONS:

1.  Counsel argues the applicant's injury and subsequent complications rendered him incapable of performing at least two ADLs without assistance for more than 120 days (4 months).  

	a.  On an unknown date, the applicant's wife stated he was unable to perform ADLs from May - November 2010 (5 months).

	b.  On 19 October 2012, a VA nurse practitioner stated that based on the applicants report he was unable to perform ADLs from 2 May 2010 to 28 June 2011 (13 months).

	c.  On 25 February 2013, the doctor, in the medical opinion counsel provided, stated the applicant was unable to perform ADLs for a period of 13 months.

	d.  None of the dates presented in this case are consistent and it appears that since the third and final denial by HRC on 12 October 2012 the applicant's 53 day loss of ADL progressed to 4 months, 5 months, and then finally 13 months.  

2.  Counsel provided medical documentation, dated 19 October 2012, from a nurse practitioner at the VA, who indicated she filled out the TSGLI application because the applicant reported he needed assistance with bathing and dressing from 2 May 2010 to 28 June 2011 and the VA computer system supported his report.  However, she did not base her actions and opinion on a thorough evaluation or examination of the applicant's condition at the time he was suffering and recovering from his injuries.  She based her actions and opinions on his 



personal report and various entries in a VA medical database.  The entries she refers to were not provided to this Board for review; therefore, it is unclear whether these entries were based solely on the applicant's personal reports or actual medical examinations that occurred at the time he was suffering and recovering from his injuries.

3.  Counsel also provided a memorandum from a doctor who examined the applicant on 25 February 2013, well after the applicant's recovery.  The doctor based his opinions on medical records and the VA nurse practitioner's assessment.  The doctor did not conduct a personal independent medical evaluation/examination of the applicant at the time he was suffering and recovering from his injuries.  Therefore, his statement that the applicant required assistance with bathing and dressing for nearly 13 months is pure conjecture.  

4.  Counsel provided a declaration of the applicant's spouse, wherein she discussed the various forms of assistance she provided to the applicant and stated from May 2010 through November 2010, he could not bathe, dress, or fix meals for himself.  

	a.  She insisted he was incapable of washing and feeding himself without the use of his right arm, and it appears she performed various forms of assistance because she wanted to, felt he needed her assistance, or because he asked her for assistance because these tasks were difficult for him to accomplish on his own.  It is natural and understandable that she would want to assist him during his recovery.

	b.  This does not mean that he was absolutely incapable of performing these tasks on his own.  It appears these tasks were difficult, and may have taken him a significant amount of time and some discomfort to accomplish on his own; however, this does not mean he was incapable of bathing or dressing himself.  

5.  Counsel argued that HRC's denials misstate the TSGLI guidelines which state that coverage is triggered when "the member requires assistance to perform at least two of the six activities of daily living...."  Therefore, under the policy language, the trigger for coverage is not whether the veteran is "incapable of performing" ADLs, but whether he "requires assistance to perform" the ADLs.

	a.  However, it appears that counsel misinterpreted the TSGLI guidelines which state on the TSGLI application that an inability to independently perform ADLs is defined as the inability to independently perform at least two of six ADLs. The TSGLI guidelines further state that a patient is considered unable to perform an activity independently only if he or she requires assistance to perform the activity independently.
	b.  Counsel has not provided and the applicant's records do not contain a DA Form 2173, an SGLV Form 8600, an occupational/physical therapy report clearly documenting the ADL limitations, a patient discharge summary or a 
medical summary and/or history.  In effect, there is no medical evidence that the applicant was incapable of performing any of the ADLs for a period of 30 day or more.  

6.  Based on the foregoing evidence, there is insufficient evidence to grant the 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)                                         AR20130006202





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ABCMR Record of Proceedings (cont)                                         AR20130006202



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