BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20130011584 


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 to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be awarded Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits.

2.  Counsel states:

	a.  the Army TSGLI program office denied the applicant's appeal on 
20 February 2013, but her claim fits the legal requirements for a TSGLI award.  

   b.  her original claim was filed in October 2011 and denied in December 2011 with the reasons for its denial "there is not enough medical information to support that you could not perform ADLs [Activities of Daily Living] independently."  Her reconsideration was filed in January 2012 and denied in April 2012 with the stated reason "the documents provided indicate that you were not hospitalized 15 consecutive days or greater.  The application submitted only has the ADL loss of bathing claimed…Also, there was no supporting medical documentations submitted with your claim."  A third application was submitted for appeal by counsel in October 2012 and additional medical records and supporting documentation to address the April 2012 denial.  This appeal was denied by the TSGLI office in February 2013 with the stated reason of "the medical documents submitted for your shooting accident which occurred on 
6 September 2011 did not indicate you were incapable of performing the Activities of Daily Living skills (ADLs) of dressing, bathing, transferring, for 
30 days or more, or that you were hospitalized for 15 consecutive days or more per TSGLI guidelines."  

	c.  on 6 September 2011, the applicant was dining at a local International House of Pancakes restaurant when a random gunman entered and opened fire inside the establishment.  She was shot and immediately transported to Carson Tahoe Regional Healthcare where they treated her for a gunshot wound to the left foot.  The doctors noted the injury was due to "a high velocity projectile entry wound."  The injury is described as "dorsal lateral on her foot shattering the mid shaft of the fifth metatarsal and to the plantar aspect of the foot."  The September 2011 shooting incident and resulting injury are the basis of her TSGLI claim and appeal.  The applicant does not make any claim for hospitalization.

	d.  her injury happened on 6 September 2011 and the pain she endured as a result lasted through the removal of the cast and external fixation device around 
20 October 2011.  She was very limited in her activity while having a cast and the external fixation device.  She could not perform ADLs of bathing, dressing, and transferring.  Counsel disagrees with the TSGLI's decision that the medical documents do not indicate she was unable to perform ADLs of dressing, bathing, and transferring for at least 30 days.

	e.  the Army TSGLI office should reconsider the applicant's claim based on medical evidence previously submitted and additional documentation and photographs submitted with this appeal.  The decision is incorrect for two reasons:  (1) her inability to dress, bathe, and transfer for a least 30 days qualifies her for $25,000.00; and (2) she does not make a 15-day hospitalization claim.

	f.  her foot injury and ADL loss are well documented and supported by medical information.  Under TSGLI guidelines, a claimant is considered unable to perform an activity independently if he/she requires at least stand-by assistance, physical assistance or verbal assistance to perform such ADL.  In this case, she required at least stand-by assistance and physical assistance with dressing, bathing, and transferring.  The medical documents indicate she was incapable of performing such activities.  The TSGLI application is signed and certified by two separate doctors, who treated her for the foot injury.  Her surgeon and podiatrist each personally observed her loss and certified that she required ADLs.  Further, the photographs and caretaker statement also support the injury and ADL loss claim.

	g.  she underwent several surgeries.  The evidence will show that she was incapable of independently transferring, toileting, bathing, and dressing, making it impossible with an external fixation device in place.  The medical evidence provides her level of ADLs as "assistive person" meaning she required a person to assist with the listed ADLs.  She was again assessed for ADLs upon discharge.  The doctors also noted that she had decreased ability to use her legs for bed mobility, "decreased ability use legs for bridging/pushing."  Further the medical records show "Sit to Stand Transfer Level of Independence supervised" and "Physical Assist set up required."  She was to remain non-weight bearing until cleared.  Her discharge records state "mode of discharge wheelchair to door" and "disposition home to family care."  She was released home, with the external fixation device still in place, and to be taken care of by her family.  Her husband was her primary caretaker.           

	h.  additional medical evidence for ADL loss shows that, on a follow up visit, she went to Reno Orthopedic Clinic where she was seen for her foot injury.  She reported that her pain was "continuous and worse all day."  She was again advised by her doctor to remain non-weight bearing and provided a casting for her lower extremity.  She continued to have the external fixation device in place.  As instructed with her hospital discharge, she received care at home from her husband.  With a cast and external fixation device in place, she was not able to independently bathe.  She could not stand alone or for long periods of time.  She required at least stand-by and physical assistance to make sure she did not fall and to help maintain stability while washing herself.  She could not get in and out of the tub without assistance from her husband.   

   i.  she could not independently dress.  She needed physical assistance to help put on her pants over her cast and external fixation device.  She also required stand-by and physical assistance to make sure she did not fall and to help maintain stability when getting dressed.  She could not stand on her own or weight-bear on her lower extremity.
   
   j.  she could not independently transfer.  She needed at least stand-by and physical assistance to help her move into and out of chairs and bed.  She was not able to independently transfer simply because she could not bear any weight on the external fixation device and cast on her foot.  Finally, the photographs of her injured foot will show the foot injury and the external fixation device that was placed.  A consideration of all evidence will provide a reasonable person to conclude that the severity of the injury and having a non-removable external fixation device would limit and not allow a non-weight bearing individual to independently perform ADLs.  The external fixation device and cast are not removable devices and, at the very least, would require stand-by assistance for dressing, bathing, and transferring.
   k.  further evidence provides that, on 4 October 2011, she still had a cast and external fixation device in place.  She reports "she is still having pain."  They found the external fixation device to be loose and tightened it.  Again, with the external fixation device still in place, she could not independently bathe, dress, or transfer.  She was instructed to return for a visit on 11 October 2011 (which marks the 30th day of having the external fixation device and requiring ADL assistance).  She was finally able to have her external fixation device removed.  The removal of the external fixation device allowed her to gain some independence.  She continued to have pain even into November where the doctor noted "she tried to get into her shoes and has a lot of pain with this."
   
   l.  her medical and other supporting documents reflect the need for assistance, need for home care, supervision, and to remain non-weight bearing.  She was not able to perform ADLs for at least the 30-day period, especially while the cast and external fixation device were in place.  All other references have been produced by licensed medical providers, physical therapists, and other medical professionals – in short, all the types of valid information referenced in the denial letter.   	 	

	m.  this information supports her inability to bathe, dress, and transfer independently for at least 30 days.  These activities are qualifying ADLs and she was unable to perform them without stand-by or physical assistance from 
6 September 2011 to 20 October 2011, a period of at least 30 days.

	n.  based upon the traumatic event and resulting injury and required treatment, the evidence provided is just enough to make it more likely than not that she required at least 30 days of assistance with the described ADLs.  The decision of the U.S. Army TSGLI office to deny the claim on grounds of insufficient medical information should be overturned, as the applicant's inability to bathe, dress, and transfer independently for at least 30 days entitles her to a $25,000.00 TSGLI benefit.     

3.  Counsel provides:

* TSGLI claim procedural history
* TSGLI application
* TSGLI denial letters
* Letters of support and doctor certifications
* Medical timeline
* Medical records and supporting evidence 



CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Air National Guard, the applicant enlisted in the Army National Guard on 24 May 2006 for a period of 7 years and 26 weeks.  She was promoted to sergeant on 15 May 2011.

2.  Counsel provides medical documentation which shows the applicant sustained a gunshot wound to her left foot on 6 September 2011.  She was a victim of a multiple gun shooting at a local restaurant.  Surgery was required and two pins and an external fixation device were inserted into her foot.  She was discharged from the hospital on 7 September 2011.  The discharge note, dated 
7 September 2011, indicates she was discharged non-weight bearing on left foot, activities as tolerated.    

3.  In September 2011, she submitted a TSGLI claim for hospitalization and loss of ADLs for bathing, dressing, and transferring for 45 days.  Her application was denied in December 2011.  The TSGLI letter stated her claim was denied because there was not enough medical information to support she could not perform ADLs independently and her claim for hospitalization was not approved because her loss did not meet the TSGLI standard (inpatient hospital stay for 
15 or more consecutive days).    
  
4.  In February 2012, she submitted a request for reconsideration for TSGLI benefits.  The TSGLI office denied her request in March 2012.  The TSGLI denial letter stated the documents provided indicated she was not hospitalized 
15 consecutive days or greater and her application submitted only had the ADL loss of bathing claimed.  According to TSGLI standards, a servicemember must be incapable of performing two or more of the six ADLs for a period of 30 days or greater.  Also, there was no supporting medical documentation submitted with her claim.  

5.  Part B (Medical Professional's Statement) of the applicant’s TSGLI application, dated 7 October 2012, shows that her attending physician essentially stated:

* she suffered a gunshot wound to her left foot and left ear
* she could not weight bear more than 6 weeks
* she could not get in or out of bath tub independently
* she could not stand in the shower
* she could not walk from bed to anywhere
* she could not get clothes over cast independently
* she could not perform bathing, dressing, or transferring independently from 6 September 2011 to 10 October 2011
6.  Part B (Medical Professional's Statement) of the applicant’s TSGLI application, dated 11 October 2012, shows that her attending physician essentially stated:

* she suffered a gunshot wound to her left foot and left ear
* she needed help in and out of bath/shower
* she needed assistance while stand in the shower
* she could not stand to dress
* she could not dress independently with leg brace/cast
* non-weight bearing
* she could not walk on flat surface or stairs
* she could not perform bathing, dressing, or transferring independently from 6 September 2011 to 10 October 2011

7.  In October 2012, she filed an appeal of her TSGLI claim.  Her appeal was denied in December 2012.  The TSGLI denial letter stated the medical documents submitted for her shooting accident did not indicate she was incapable of performing the ADLs of dressing, bathing, transferring, for 30 days or more or that she was hospitalized for 15 consecutive days or more per TSGLI guidelines. 

8.  Records show she was ordered to active duty on 15 January 2013 for active duty medical extension (ADME).  The end date for ADME is 21 November 2013.

9.  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 $25,000.00 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 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.  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 Operation Enduring Freedom (OEF) 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.

10.  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% of body or 30% of the face;

	h.  coma or TBI; or

	i.  other traumatic injuries resulting in the inability to carry out 2 of the 6 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 TBIs).  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 documents demonstrating the injury type and duration of ADL loss.  While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  





DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was injured in a random shooting at a restaurant and she suffered a gunshot wound to her left foot that was surgically repaired that same day.  She was hospitalized for only two days and her discharge note, dated 7 September 2011, indicates she was discharged non-weight bearing on left foot, activities as tolerated.    

2.  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 documents demonstrating the injury type and duration of ADL loss.  While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  

3.  The applicant claimed loss of three ADLs for 45 days.  However, the submitted documentation does not indicate that the injury rendered the applicant incapable of performing any ADLs for 30 days or more, per TSGLI guidelines.

4.  Otherwise healthy patients are not rendered ADL incapable by a single limb trauma/dysfunction/immobilization.  

5.  Regrettably, based on the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20130011584





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ABCMR Record of Proceedings (cont)                                         AR20130011584



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