IN THE CASE OF:	  

		BOARD DATE:	22 April 2014 

		DOCKET NUMBER:  AR20130011892 


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 reconsideration of his earlier request for correction of his military records to show he is entitled to a Traumatic Servicemembers’ Group Life Insurance (TSGLI) payment.

2.  The applicant essentially states that he is entitled to a TSGLI payment because he suffered a scheduled loss as a result of a traumatic event.  He contends that he required assistance for 45 days to perform qualifying activities of daily living (ADL).

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 18 August 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 26 April 2012
* Exhibit 1: Applicant's signature authorizing personnel from Military Law Center and students to assist with his claim
* Exhibit 2: Applicant's Declaration, dated 16 May 2013
* Exhibit 3: Declaration of applicant's spouse, dated 16 May 2013
* Exhibit 4: Letter to applicant from United States Army Human Resources Command (HRC), dated 5 August 2010
* Exhibit 5: Definitions and how he met them for appeal; Narrative of illness; Memorandum, Appeal of TSGLI Claim, dated 25 June 2010 (4 pages)
* Exhibit 6a: Medical "SRC" Check Sheet, dated 28 December 2009
* Exhibit 6b: Medical Task Force Shelby, dated 4 December 2009 (5 pages)
* Exhibit 6c: Walter Reed Army Medical Center (WRAMC) Note: Narrative Summary and Discharge Instructions, dated 11 February 2010 (4 pages)
* Exhibit 6d: Standard Form (SF) 600 (Chronological Record of Medical Care) dated 19 February 2010
* Exhibit 6e: SF 600, dated 26 February 2010
* Exhibit 6f: SF 600, dated 13 April 2010
* Exhibit 7: DA Form 2823 (Sworn Statement) dated 24 February 2011
* Exhibit 8: Servicemembers' Group Life Insurance Traumatic Injury Protection Program (TSGLI) Application, dated 20 April 2010  (11 pages)
* Exhibit 9: Letter from the Office of SGLI, dated 4 June 2010
* Exhibit 10: Letter from HRC, dated 11 July 2011
* Exhibit 11: Letter from this Board, dated 14 February 2013, with Record of Proceedings enclosed, dated 12 February 2013 (8 pages)
* Exhibit 12: DA Form 2823, dated 22 March 2013 at 1428 hours
* Exhibit 13: DA Form 2328, dated 22 March 2013 at 1530 hours
* Exhibit 14: Memorandum from applicant's counsel dated 25 January 2012

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of his military records so his claim for benefits from his TSGLI may be granted.

2.  Counsel states in a letter, dated 20 May 2013, that after carefully reviewing the provisions of TSGLI, he is of the opinion that the applicant has suffered a scheduled loss as a result of a traumatic event.  The applicant required assistance to perform two of the six qualifying ADLs for a period of 30 days.  Therefore, he is entitled to benefits allowable under TSGLI in the amount of $25,000.00.

3.  Counsel provides a 15-page memorandum dated 16 May 2013, wherein he discusses the applicant's traumatic injury, factual background, denial history and basis, and the legal standard for proof.  Counsel states, in essence:

	a.  The applicant deployed to Iraq with his unit in January 2010.  That same month he developed a pyogenic infection from a staphylococcus aureus bacteria and entered care at Camp Victory.

	b.  Even if the Board finds the exact cause of the applicant's pyrogenic infection is not known, he suffered three traumatic events which are the probable causes of his traumatic injury.

	c.  In April 2010, the applicant filed a claim for TSGLI benefits for the loss of ADL's from 12 February to 17 March 2010.  On 4 June 2010, he was notified that his request was denied because his medical condition was not the result of a traumatic event.

	d.  On 25 June 2010, the applicant filed an appeal to TSGLI.  On 5 August 2010, he received a letter denying his appeal on the grounds that his loss of ADLs was due to an illness and not to a traumatic event.

	e.  On 8 February 2011, the applicant filed a second appeal.  On 11 July 2011 this appeal was also denied because he had not provide documentation indicating that he suffered a loss resulting from a qualifying traumatic event.

	f.  In March 2012, the applicant submitted an administrative appeal to this Board, wherein arguments were advanced for two alternative theories for the traumatic event that resulted in the applicant's injury and scheduled loss.  These two theories consisted of the possibility he had cut his finger while clearing a pistol, or had ingested Iraqi food.  Both the cut and ingestion had occurred days before the initial staphylococcus aureus bacteria first manifested.  The Board denied this appeal.  The Board stated the evidence in this case shows the applicant suffered from pain in his right sternoclavicular area in November 2009, which worsened after his early January deployment to Baghdad, and received surgery for sternoclavicular osteomyelitis (septic arthritis) caused by a pyogenic infection.  There is no indication this condition or his septic arthritis resulted from a qualifying traumatic event.

	g.  The third denial letter was the only denial in 3 years that provided any explanation for why the applicant did not allegedly suffer a traumatic event.  Counsel now requests the Board reconsider that appeal and find that the applicant did in fact suffer from a qualifying traumatic event and grant him compensation for his covered loss of ADLs for the prescribed amount of time.

	h.  Counsel argues that in order to effectuate Congress's purpose of providing the highest level of coverage to service members, language was incorporated to ensure that the policy also encompassed those claims that may seem somewhat uncertain.  To that end, Title 38 U.S. Code, section 5107(b) dictates that service members are to receive the benefit of the doubt in the processing of their claims.  Specifically, it reads: The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  Accordingly, service member claims should not be denied unless the evidence clearly weighs against finding that the claimant's injury is covered by the policy.

	i.  Counsel argues that the Board's basis for denial of the applicant's request is incorrect for several reasons.  The Board was unable to conclusively determine the source or cause of the reported pain; therefore, it was inappropriate for the Board to conclude that the pain was caused by a pus-producing pyogenic infection rather than by a cut finger or ingestion of Iraqi food.  Neither the Board nor the applicant knows whether the November 2009 pain was caused by an infection, a muscle ache, an illness, a training accident, or any other event.  Any number of events could be the source of the prior reported pain.  Just because prior pain existed does not mean that a later traumatic event could not have produced a traumatic injury in the same area.  The Board's strongest argument for denying the applicant benefits is merely based on coincidental pain in the same area of the body.  This is an improper and illogical basis for denial.

	j.  It was an error of law for the Board to have concluded that the cut finger or ingestion of Iraqi food clearly did not qualify as the traumatic event.  The applicant cut his finger on 10 January 2010 while clearing his weapon.  On 
16 January 2010 and other subsequent occasions, he dined with his Iraqi counterparts, ingesting a number of exotic and potentially unsanitary cuisines.  Within days of these events, he developed a sore right shoulder and a mass growing on the right side of his chest.  Open wounds and food poisoning are not only accepted causes, but two of the most common causes of staphylococcus aureus.

	k.  The barrel-clearing injury was the only incidence of an open wound prior to the applicant's staph infection.  This coupled with the fact that the staph infection took up residence in the same arm that was injured suggests that the barrel-clearing injury precipitated the staph bacteria's entry into his body.

	l.  Counsel refers to an article titled, "Diagnosis and Management of Osteomyelitis" found in the American Family Physician, dated in 2001.  This article is dedicated to staph food poisoning and states that most people get staph poisoning by eating contaminated food.

	m.  Counsel refers to an article in the Journal of Medicine titled, "Case Report: Septic arthritis of the sternoclavicular joint in healthy adults, dated in 1990.  The article discusses a male Soldier who had an infection under his right fingernail.  A culture showed growth of staphylococcus aureus.  Under nearly identical circumstances, the applicant suffered a cut to his right finger that was most likely infected and was found to have a pus-producing pyogenic infection.  

	n.  Counsel argues that Federal law requires the Board to give the applicant the benefit of the doubt.  The applicant does not need to provide a direct and absolute correlation between the traumatic event and the injury, but only an "at least as likely as not" correlation between the proposed traumatic events and the injury.  The applicant has satisfied this standard by verifying two traumatic events that could directly cause his traumatic injury.  The Board erred in law by denying him his claim on the basis of a prior complained pain in the same area of his body.

	o.  Counsel further argues that the type of pyogenic infection the applicant contracted is one that not only incubates in a short period of time, but also produces symptoms in a short period of time.  Accordingly, given the incubation time of staphylococcus aureus, the applicant's traumatic event most likely occurred while he was deployed, thus ruling out the previously-complained of pain in November 2009 as the causation of the traumatic injury.

	p.  Counsel concluded by saying that the goal of TSGLI is to aid injured service members and their families with the financial burdens associated with recovering from a severe injury.  The applicant's severe infection created a burden to both himself and to his family and requires compensation under TSGLI.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120005269, on 12 February 2013.

2.  The applicant provides more than twice the number of documentary evidence listed in the original record of proceedings (ROP).  Furthermore, the applicant's counsel advances a new argument concerning the legal standard for proof.  Accordingly this new evidence and argument now requires consideration by the Board.

3.  In the original ROP, the Board informed the applicant that the evidence showed he suffered from pain in his right sternoclavicular area in November 2009.  It worsened after his deployment to Iraq in January 2010 and required surgery.  He had contracted a pyogenic infection.  The available evidence was not sufficiently convincing to show his medical condition had resulted from a qualifying traumatic event.  Accordingly, his request was denied.


4.  A medical SRC check sheet, dated 28 December 2009, and allied documents show the applicant received a pre-deployment medial screening and was cleared for overseas deployment.

5.  A Narrative Summary and Discharge Instructions show the applicant:

* was a patient at the WRAMC from 6 to 11 February 2010
* presented with a right chest mass, associated fevers, night sweats, weight loss, and anemia
* was admitted, received intravenous antibiotics, and underwent uncomplicated incision and drainage of his right chest wall mass
* was diagnosed with sternoclavicular septic arthritis
* required skilled homecare services
* required intravenous antibiotics

6.  SF Forms 600, dated from 19 February to 13 April 2010 stated the applicant:

* was being followed up for aureus septic arthritis, chronic osteomyeltis, and phlegmon
* had recent severe illness or injury illness symptoms in November 2009 with pain to the right sternoclavicular area
* had symptoms that worsened after his deployment to Baghdad
* was sent to Walter Reed for treatment

7.  Part A (Member's Claim Information and Authorization) of SGLV Form 8600 (Application for TSGLI Benefits), dated 20 April 2010, shows:

* on or about 13 January 2010, while serving in Iraq he was diagnosed with sternoclavicular osteomyelitis (septic arthritis) caused by a pyogenic infection
* The pyogenic infection was most likely caused by an open wound or ingested
* He underwent surgery and drainage of the right chest wall.  The wound was cultured and grew Methicillin-Sensitive Staphylococcus Aureus (MSSA)  
* on 7 February 2010, he underwent a repeat incision and drainage with placement of wound vacuum on 7 February 2010



8.  Part B of the SGLV Form 8600 indicates:

a. the applicant’s attending physician confirmed the applicant's statements
that he needed physical and stand-by assistance with bathing and dressing from 6 February to 11 March 2010;

	b.  the physician stated the applicant was right hand dominant; with intravenous access, requiring assistance with donning his socks and shoes; and

	c.  the applicant included handwritten statements that he needed ADL assistance with his pants and shirts and to change IV bags for 9 weeks.

9.  The applicant's TSGLI claim was denied by HRC on:

	a.  4 June 2010, because his loss was not a direct result of a traumatic event.  Under TSGLI a traumatic event is defined as "the application of external force, violence, chemical, biological, or radiological weapons, accidental contaminated substance, or exposure to the elements that caused damage to a living being."

	b.  5 August 2010, because his loss was due to an illness and not a traumatic event.

	c.  11 July 2011, because the documentation provided did not indicate he suffered a loss resulting from a qualifying traumatic event defined as the application of external force, violence, chemical, biological, or radiological weapons, accidental contaminated substance, or exposure to the elements that caused damage to the body.

10.  A memorandum, subject: Memorandum of Endorsement for TSGLI Appeal Claim, dated 25 June 2010, from the applicant's primary care physician indicates:

* "in her professional opinion the information contained in the applicant's appeal is accurate"
* his illness was due to a pyogenic bacterium that caused physical damage to his body due to his illness, a non-medical assistant was assigned to assist in bathing and dressing
* he required non-medical assistance for more than 30 days

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

12.  Other traumatic injuries resulting in the inability to carry out two of the six ADL, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more (15 days or more in the case of traumatic brain injuries).  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.

13.  Title 38, U.S. Code:

	a.  section 101 (Definitions) states the terms "Secretary" and "Department" mean the Secretary of Veterans Affairs and the Department of Veterans Affairs, respectfully;

	b.  section 1980A (f) states when a claim for benefits is submitted under this section, the Secretary of Defense or, in the case of a member not under the jurisdiction of the Secretary of Defense, the Secretary concerned, shall certify to the Secretary whether the member with respect to whom the claim is submitted was at the time of the injury giving rise to the claim insured under SGLI for the purposes of this section; and has sustained a qualifying loss; and

	c.  section 5107(b) provides that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

14.  38 Code of Federal Regulations (CFR), section 9.20 governs TSGLI.  It provides:

	a.  defines a traumatic event 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;

	b.  that a traumatic event does not include a medical or surgical procedure in and of itself;
	c.  defines a traumatic injury as a mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapon, or accidental ingestion of a contaminated substance; and

	d.  that to be eligible for TSGLI benefit, the Soldier must suffer a scheduled loss that is a direct result of traumatic injury and no other cause.

15.  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 ABCMR.  This regulation provides that 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.  The applicant contends that he is entitled to a TSGLI payment because he suffered traumatic events resulting in the loss of ADLs for 45 days.

2.  Counsel argues that the applicant's traumatic event was most likely a cut to a finger of his right hand, and/or ingestion of unsanitary food resulting in his contracting a pyogenic staph infection.  Counsel further argues that the governing law requires the Board to give the applicant the benefit of the doubt.  The applicant does not need to provide a direct and absolute correlation between the traumatic event and the injury, but only an "at least as likely as not" correlation between the proposed traumatic events and the injury.

3.  Counsel contends that the applicant has satisfied the standard of the law by verifying two traumatic events that could directly cause his traumatic injury.  The Board erred in law by denying him his claim on the basis of a prior complained pain in the same area of his body.

4.  A review of the evidence fails to show that the cut suffered by the applicant was the catalyst for his acquiring a pyogenic staph infection.  Furthermore, there is no convincing evidence that the applicant actually ingested any unsanitary food, or that such ingestion was the cause of his infection.

5.  The applicant admits he does not know the method of inception of this infection.  The regulatory language dealing with pyogenic infections is unclear.  

6.  The applicant asserts that the previous ROP did not dispute that the applicant suffered a traumatic injury or scheduled loss.  The ROP never reached the issue of a traumatic injury.  A traumatic injury results from a traumatic event.  The ROP stated that there was no evidence that the septic arthritis resulted from a qualifying traumatic event.

7.  In view of the above, 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120005269.




_________ _    _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)                                         AR20130011892





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ABCMR Record of Proceedings (cont)                                         AR20130011892



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