IN THE CASE OF:	 

		BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130007391 


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, correction of his records to:

* include traumatic brain injury (TBI) as one of the reasons he was granted a disability retirement
* show his previous request for payment of Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits was approved for TBI

2.  The applicant states:

	a.  The Department of Veterans Affairs (VA) doctors were only looking at his severe post-traumatic stress disorder (PTSD).  They did not find his TBI and headaches until he started having severe signs of TBI.  His TBI and TBI headaches are not being allowed by TSGLI.

	b.  The VA granted him [compensation for] TBI and prostrating headaches from TBI but TBI was not added to his records.  All of his records, to include his medical records, were lost by the 300th Area Support Group (ASG), the unit he was deployed to Iraq with.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a memorandum issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, subject:  Placement on the Temporary Disability Retired List (TDRL), dated 8 September 2009
* Orders 251-2, issued by USAPDA, dated 8 September 2009
* three DA Forms 2173 (Statement of Medical Examination and Duty Status)
* page 3 of a VA Rating Decision
* an SGLV 8600 (Application for TSGLI Benefits), dated 22 March 2011
* a letter issued by the U.S. Army Human Resources Command (HRC) TSGLI Branch, Fort Knox, KY, dated 8 May 2011
* a letter issued by the VA, dated 5 April 2013
* 387 pages of VA Progress Notes, dated between 28 February 2006 and 14 March 2013
* three pages titled Patient Medication Information, dated 14 March 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a staff sergeant in the U.S. Army Reserve (USAR) assigned to Headquarters and Headquarters Company (HHC), 300th ASG, Fort Lee, VA, and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He was ordered to active duty in support of Operation Iraqi Freedom (OIF) as a member of his USAR unit and he entered active duty on 15 December 2003.

2.  He served in Kuwait/Iraq from 24 January to 27 December 2004 while assigned to HHC, 300th ASG.  He was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 15 July 2004.

3.  The applicant provides a DA Form 2173, dated 5 January 2005, wherein it shows he was treated as an outpatient at the military field hospital in Iraq on 29 October 2004 for bilateral hearing loss.  Item 30 (Details of Accident - Remarks) of this form stated "The applicant was on a shooter mission guarding Kelly, Brown, and Root (KBR) fuel tankers when improvised explosive devices (IEDs) in a daisy chain exploded and 6 mortar attacks followed in the area of Bagdad, resulting in hearing damage to both of the applicant's ears from explosive noise."  This was subsequently found to be in the line of duty.

4.  He was honorably released from active duty on 27 January 2005 in the rank of SFC by reason of completion of required active service to the control of his USAR unit.  He completed 1 year, 1 month, and 13 days of creditable active service during this period of service.

5.  The applicant provides a DA Form 2173, dated 16 March 2005, wherein it shows he was treated as an outpatient at the military clinic in Iraq on 15 March 2004 for a laceration to the nose.  Item 30 of this form stated "While performing preventive maintenance on a vehicle during deployment [the applicant] was hit on the nose by a wrench."  This was subsequently found to be in the line of duty.

6.  The applicant provides and his record contains a DA Form 2173, dated 16 March 2005, wherein it shows he was treated as an outpatient at the military clinic in Iraq on 30 July 2004 for a right shoulder rotator cuff strain that occurred on or about 30 June 2004.  Item 30 of this form stated "While working on a vehicle during OIF [the applicant] began to have pain in his right shoulder."  This was found to be in the line of duty.

7.  The applicant provides progress notes that show, in part, he was treated at the Veterans Affairs Medical Center (VAMC), Philadelphia, PA, as follows:

	a.  On 23 January 2006, for PTSD and because he broke his wife's car windshield with his fist.  The examining physician noted the applicant had developed an acute PTSD attack.  He lost control and demolished property at work but his co-workers were understanding and covered up for him.

	b.  On 10 March 2006, to have surgery on a neck abscess.  The examining physician noted the applicant had pain and discomfort that hindered work and radiated down his head and shoulder.

	c.  On 20 June 2006, for a follow-up at the Mental Health Clinic for his PTSD.  The examining physician noted the applicant had reported he had been overwhelmed by his PTSD but he had been sleeping better and he was in better control of his life since his dissociation had diminished.

8.  On 6 December 2006, he was assigned to the USAR 99th Regional Readiness Command, Coraopolis, PA.

9.  The applicant provides progress notes that show, in part, he was treated at the VAMC, Philadelphia, PA, as follows:

	a.  On 14 December 2007, for a complaint of difficulty hearing; especially background noises.  He reported bilateral tinnitus, onset in 2004, and denied vertigo or recent ear infections.  He reported 1 year of military noise exposure to heavy equipment and 14 years in the Reserves to heavy equipment.  He was diagnosed with sensorineural hearing loss, counseled on coping strategies, and recommended for a hearing aid evaluation.

	b.  On 3 October 2008, at the Behavioral Sleep Medicine Clinic for a complaint of problems sleeping since returning from Iraq in October 2005 from having nightmares and panic attacks at night.  He reported he was a full-time worker at the post office and he was excessively sleepy during the day.  He was issued a home sleep system to monitor his sleep patterns.  On 9 October 2008, he was notified by letter that the sleep study revealed he had sleep apnea and the results had been sent to his primary physician.

	c.  On 3 February 2009, at the Physical Therapy Clinic for a follow-up visit.  The examining physician noted the applicant reported he continued to experience bilateral shoulder pain that increased with work activities.  He was treated with moist heat and several stretching exercises.  The examining physician noted he tolerated the treatment well and should continue with the program as tolerated.

	d.  On 18 February 2009, at the Physical Therapy Clinic for a complaint of increasing pain that traveled down his right upper arm to his forearm and hand.  He also had concerns his [postal] route at work would be changing that would require him to carry a mailbag for 4 more hours a day.  The examining physician recommended he discuss his concerns with his primary physician.

10.  His record contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 21 Jul 2009, wherein it shows an informal PEB convened on that date at Washington, DC, and confirmed his unfitting disability of PTSD.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined his condition was medically unacceptable, unfitting, and unstable.  He was rated under the VA Schedule for Rating Disabilities (VASRD) code 9411 and assigned a 70 percent disability rating.  The PEB recommended his placement on the TDRL with a 70 percent disability rating.

11.  On 27 July 2009, after being counseled on his rights, he checked the block on the form to indicate he concurred with the PEB findings but requested the VA reconsider his disability rating.  He understood the VA would only reconsider their ratings if new medical evidence was received or if he could provide sufficient evidence of an error to warrant reconsideration.

12.  Orders 251-12, dated 8 September 2009, retired him by reason of temporary disability and transferred him to the TDRL effective 13 October 2009.  He completed 6 years, 1 months, and 22 days of service for disability retirement and had 18 years, 11 months, and 8 days of service for basic pay.

13.  The applicant provides progress notes that show, in part, he was treated at the VAMC, Philadelphia, PA, as follows:

	a.  On 30 August 2010, at the Move Clinic for a follow-up visit to his weight management plan.  The examining health care specialist noted the applicant reported his activity was limited as he needed surgery on his knee but his physical therapy had been stopped [at that time].

	b.  On 27 September 2010, at the Move Clinic for a follow-up visit to his weight management plan.  The examining health care specialist noted the applicant reported he was having breakfast every day, had recently purchased a Wii Fit, and was working with his son to increase his activity.

	c.  On 3 November 2010, for a Compensation and Pension Examination.  The examining physician noted the applicant reported short-term memory and trouble retaining new information that interfered with his work as a postal service mail carrier.  He stated he had been out of work and on disability since 2009.  The examining physician reviewed his military medical records and noted he was guarding KBR fuel tankers near Baghdad when an IED daisy chain exploded, followed by 6 mortar attacks, resulting in damage to both his ears from explosive noise.  The physician further noted the applicant stated "he had been thrown and dazed and maybe he was out briefly."  He was referred for a TBI evaluation.

	d.  On 1 December 2010, at the Move Clinic for a follow-up visit to his weight management plan.  The examining health care specialist noted the applicant reported he was maintaining a food journal and he was doing 45 minutes of activity daily by walking a dog and using his Wii Fit.

	e.  On 1 December 2010, for a TBI evaluation.  The examining physician noted that:

		(1)  The applicant stated while in Iraq he had exposure to small arms fire, blasts, and facial trauma; the worst blast threw him off a truck.  He also stated he sustained facial trauma when he was working on a vehicle and a wrench slammed into his face breaking his nose.  He was unable to drive and relied on his wife; he denied having difficulty with basic activities of daily living (ADL) and had grab-bars and a bench in his shower.

		(2)  The examining physician stated the applicant's PTSD was profound and impacted his ability to function.  He may have sustained a TBI during his Iraq deployment but until his significant PTSD symptoms lessened, his complaints cannot be attributed solely to TBI.

	f.  On 1 December 2010, at the Move Clinic for a follow-up visit to his weight management plan.  The examining health care specialist noted the applicant reported he was maintaining a food journal and was doing 45 minutes of activity daily by walking a dog and using his Wii Fit.

14.  The applicant provides page 3 of a VA Rating Decision, undated, wherein it stated he was granted:

* 50 percent service-connected disability for prostrating headaches associated with TBI, effective 29 December 2010
* 40 percent service-connected disability for TBI, effective 12 October 2010
* 70 percent service-connected disability for PTSD was increased to 100 percent, effective 16 September 2010

15.  The applicant provides progress notes that show, in part, he was treated at the VAMC, Philadelphia, PA, on 5 January 2011, at the Move Clinic for a follow-up visit to his weight management plan.  The examining health care specialist noted the applicant reported he did not maintain his food journal over the holidays but had remained consistent in doing 45 minutes of activity daily.

16.  His record is void of his initial claim for TSGLI benefits.  However, he provides a SGLV 8600, dated 22 March 2011, wherein he appealed the denial of his claim for TSGLI benefits.  This form stated, in part, during his tour in Iraq he received two line of duty reports and he was being treated at the VAMC, Philadelphia, PA, for TBI that resulted from his line of duty injuries.  He was unable to work and he was going to have reconstructive surgery performed on his face and nose to relieve some of his pain and breathing problems.

	a.  Page 8, part B 3 (Qualifying Losses Suffered by Patient) of this form showed he had loss of hearing in his left ear prior to 2005 and loss of hearing in his right ear in 2006.

	b.  Page 10, part B 3 (What is the predominant reason the patient is/was unable to independently perform ADL) showed the reason was TBI and it indicated he was:

* unable to bathe independently; the inability was ongoing, and he required physical, verbal, and stand-by assistance; the assistance needed was described as his "wife shaves and helps wash, both physical and verbal"
* unable to dress independently; the inability was ongoing, and he required physical, verbal, and stand-by assistance.  The assistance needed was described as his "wife helps with socks and shoes due to poor balance"

	c.  His physician, Doctor DHS, internal medicine, checked the block that indicated he had not observed the patient's loss, but he had reviewed the patient's medical records.  He signed and dated the form on 22 March 2011.

17.  In a letter, dated 8 May 2011, HRC denied his appeal request and stated the documentation submitted indicated his hearing loss was an average of 80 decibels or greater….clinically stable, and unlikely to improve.  Also the documentation did not indicate a TBI condition that made him incapable of performing two or more of the ADLs without assistance.  The documentation indicated the treatment was due to a diagnosis of PTSD that is not covered by TSGLI.

18.  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.  U.S. Army Combat-Related Special Compensation 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.  

19.  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 deducted 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 OIF and OEF 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 (Active, Reserve, or National Guard) or the location in which they incurred the injury, will be covered by TSGLI.

20.  Effective 1 October 2011, Public Law 111-275 removed the OIF/OEF requirement for injuries incurred during the retroactive period.  As a result, TSGLI coverage will be provided retroactively for members who incurred severe losses as a result of traumatic injuries incurred between 7 October 2001 and 30 November 2005, regardless of where the injury occurred, and regardless of whether they had SGLI coverage.

21.  A traumatic event is defined as 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 body and a traumatic injury is defined as the physical damage to the body that results from a traumatic event.  The event must involve a physical impact upon an individual.  Some examples would include: an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head.  It would not include an injury that is induced by the stress or strain of the normal work effort that is employed by an individual, such as straining one’s back from lifting a ladder.

22.  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.

23.  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 TBI.

	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.

24.  A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADLs.  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.  Requires assistance is defined as without the assistance, the patient would be incapable of performing the task.

25.  TSGLI claims may be filed for loss of ADL if the claimant is dependent on someone else to perform two of the six ADL for 30 days or more and is incapable of performing the tasks without the required assistance.  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 won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

26.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

27.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that at the time of the applicant's PEB he was found to be unfitting for further military service because of his PTSD.  There is no evidence and the applicant has not provided any evidence that shows he was suffering from TBI or headaches caused by TBI at that time.

2.  Only conditions that are found unfitting by the military are rated by the PEB and just because a condition may exist at the time of separation does not, of itself, justify a finding of unfitness for those conditions.  Further, just because the VA subsequently rates a condition after a Soldier is discharged does not provide a preponderance of evidence that the VA-rated condition was unfitting at the time he was placed on the TDRL.  In addition, the VA doctor stated his PTSD was profound and impacted his ability to function.  He may have sustained a TBI during his Iraq deployment but until his significant PTSD symptoms lessened, his complaints could not be attributed solely to TBI.

3.  With respect to his request for TSGLI benefits, it is unclear what period he is claiming he needed assistance with two of the six ADLs.  The form he provided shows he suffered hearing loss in the left ear prior to 2005 and in the right ear in 2006 and that he needed assistance with the ADLs due to his TBI.  His TBI was not diagnosed until December 2010 which is well after 2 years of any of traumatic event he experienced in Iraq.  As noted by HRC, if he had needed assistance with ADLs prior to that timeframe, it would have been due to his PTSD which is not covered by TSGLI.

4.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20130007391



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ABCMR Record of Proceedings (cont)                                         AR20130007391



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