IN THE CASE OF:	  

		BOARD DATE:  20 February 2014

		DOCKET NUMBER:  AR20130010889 


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 show his previous claim for payment of Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits was approved for his [inability to perform] activities of daily living (ADL) in 2009 vice 2010.

2.  The applicant states:  

   a.  His podiatrist would not do the surgery in 2007.  If the doctor had done so, he would have had enough time after both surgeries for the 730-day time period [required] for his TSGLI claim.  He did not know that his left foot bone had to be fused together.  He had a total of three surgeries and he needed assistance after each surgery.  He appealed the denial of his TSGLI claim three times.  The TSGLI website states traumatic injury resulting in the inability to perform at least two ADLs [are required for a TSGLI claim].  
   
   b.  The medical statement he provides stated he had surgery on 21 August 2009 and 25 March 2010; he also had surgery on 16 October 2010.  The doctor commented that for a period of 3 months after each surgery he needed some assistance and had limitations during these periods.  However, the denial letter stated he was over 730 days and that his ADLs occurred in 2010.  However, the injury that happened during his unit training exercise for deployment was stated as not being in the line of duty (LOD).  He asks that his TSGLI claim be reviewed.  He had a loss as he was not able to stay on active duty after the surgery and he was medically separated.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* five letters, one undated and four dated between 19 September 2011 and 8 April 2013
* three TSGLI applications, dated 7 January 2011, 24 August 2011, and 29 April 2013
* an email, dated 8 August 2011
* one page titled TSGLI ADL Worksheet, dated 24 August 2011
* three memoranda, dated between 2 July 2009 and 12 February 2010
* six DD Forms 689 (Individual Sick Slip), dated between 21 August 2009 and 14 May 2010
* six DA Forms 3349 (Physical Profile), dated between 13 December 2007 and 30 June 2011
* three orders, dated between 3 August 2007 and 6 January 2012
* seventeen pages of medical records, dated between 5 October 2007 and 27 June 2011
* two pages titled TSGLI Combat-Related Special Compensation
* four pages titled TSGLI Schedule of Losses

CONSIDERATION OF EVIDENCE:

1.  Having had prior active and Reserve service, the applicant enlisted in the Regular Army in the rank/grade of sergeant (SGT)/E-5 on 15 February 2007 and he held military occupational specialty 92G (Food Service Worker).  He was assigned to E Company, 2nd Battalion, 2nd Infantry Regiment, Fort Hood, TX.

2.  He served in Afghanistan in support of Operation Enduring Freedom (OEF) from 27 June 2008 to 12 June 2009.

3.  On 7 January 2011, he filed a claim for TSGLI benefits.  In his application, he stated that on 6 August 2007, while on a field exercise with his unit at Fort Hood, TX, he injured his feet when he lost his balance and fell off a truck.  

   a.  On his application, his podiatrist stated [the applicant] had surgeries to try to correct painful joints on his right foot on 21 August 2009 and on his left foot on 25 March 2010.  He was in a recovery period for 3 months after each surgery, needed some assistance, and had limitations during these periods (emphasis added).  
   
   b.  His podiatrist checked the appropriate blocks of the form to show that from 25 March to 25 June 2010 the applicant was unable to perform the following ADLs independently:
   (1)  Bathing - physical assistance, needed to keep his foot dry while bathing (non-weight bearing).
   
   (2)  Dressing - stand-by assistance, he needed help dressing with crutches.
   
   (3)  Eating - physical assistance, post-operative needed help cooking and getting meals.
   
   (4)  Transferring - physical assistance, needed driving assistance due to foot immobility.

4.  In a letter to the applicant, dated 19 September 2011, from the Office of SGLI, Prudential Insurance Company, denying his claim, a Prudential official stated his claim was denied because his loss was incurred in 2010 which was more than 730 days after the 2007 traumatic event.  Losses occurring more than 2 years after a traumatic event could not be approved.  [This was based on the applicant claiming the loss of more than two ADLs from March to June 2010].

5.  The applicant subsequently appealed the denial.  In a letter to the applicant, dated 18 October 2011, from the U.S. Army Human Resources Command (HRC) denying his claim, the HRC official stated his claim could not be approved because it was outside the 730 days of the traumatic event.  

6.  On 31 October 2011, a physical evaluation board (PEB) convened at Fort Sam Houston, Texas, to determine if his diagnosis of idiopathic axonal peripheral neuropathy was unfitting.  The PEB determined his condition was unfitting and assigned him a 0-percent disability rating.  The PEB recommended his discharge with severance pay.  The applicant concurred with the findings and recommendations of the PEB.

7.  He was honorably discharged on 29 March 2012 in the rank of SGT under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay (non-combat) enhanced.  

8.  The applicant's available records are void of an LOD that shows he injured his feet on 6 August 2007 during a training exercise at Fort Hood, TX.

9.  He subsequently appealed his TSGL denial.  In a letter to the applicant, dated 8 April 2013, from HRC denying his claim, the HRC official stated his claim could not be approved because the documentation he provided did not indicate that he suffered a loss within 730 days of the traumatic event.  The documentation indicated his loss occurred on 25 March 2010, more than 2 years after the traumatic event.

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.  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.  

11.  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 Operation Iraqi Freedom (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.

12.  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.

13.  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.

14.  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 (emphasis added).

15.  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.  

16.  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 (emphasis added).  Requires assistance is defined as without the assistance, the patient would be incapable of performing the task.

17.  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 (emphasis added).  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he injured his feet on 6 August 2007, while he was serving on active duty.  In order to be eligible for TSGLI, the member must suffer a loss covered under the law within 2 years of the traumatic event, or in his case no later than 5 August 2009.  As he had surgery on his right foot on 21 August 2009 and on his left foot on 25 March 2010, both surgeries were over 2 years after his initial injury and did not qualify him for TSGLI.

2.  In addition, TSGLI claims require the loss of two of the six ADL for 30 days or more if the claimant is incapable of performing the tasks without the required assistance.  His podiatrist only stated he needed some assistance for 3 months after each surgery.  

3.  While it is recognized that for a period of time after each surgery the ADL of bathing, dressing, cooking, and transferring would have been easier with assistance, it appears he was able to get around with the use of crutches, had full use of his limbs, minus his one foot, and therefore would have been independently able to perform these ADL.  

4.  There is insufficient evidence in the available records and the applicant has not provided sufficient evidence that shows he suffered a loss within 2 years of a traumatic event or that he required assistance and was totally dependent on someone else to perform two of the six ADL for the required period of time as the result of a traumatic event/injury that would meet the qualifications for TSGLI as set forth by law. 

5.  In view of the foregoing, he is not entitled to 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)                                         AR20130010889





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ABCMR Record of Proceedings (cont)                                         AR20130010889



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