IN THE CASE OF:  

		BOARD DATE: 30 April 2014

		DOCKET NUMBER: AR20130011894


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, that his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim be reconsidered.

2.  The applicant states his TSGLI claim was disapproved, denying him compensation for his loss of activities of daily living (ADLs).  He contends that the TSGLI appeals board failed to apply the legal standard by which a service member is considered to perform ADLs.  The standard applied in his case was not only contrary to the TSGLI statute, but was also contrary to the Department of Veterans Affairs (VA) procedural guidelines.  The appeals board erroneously applied a higher burden of proof unwarranted by either the governing statute or its implementing regulations.

3.  The applicant provides no additional documentary evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's denial of his claim for TSGLI benefits.

2.  Counsel states in a letter, dated 20 May 2013, that the TSGLI appeals board denied the applicant's second level appeal.  Counsel now submits a legal brief and supporting documents, appealing the legal and factual errors made by the TSGLI appeal's board.


3.  Counsel discusses in an 11-page brief wherein he discusses the applicant's statement of facts and procedures, the applicable law and burden of proof and the injury and how it satisfies TSGLI eligibility requirements.  Counsel states, in essence:

	a.  In December 2007, the applicant, who was and is an active member of the Army National Guard, sustained severe shoulder injuries as a result of a motor vehicle accident that occurred while he was driving to work.  He experienced intense pain and ultimately loss the ability to perform ADLs for at least 60 days.

	b.  The applicant was diagnosed with whiplash.  He was prescribed medication for back and shoulder pain and recommended for physical therapy for neck and back injuries.  X-rays indicated that the accident had aggravated prior herniated discs at L4, L5, and S1.  The applicant did not suffer from back or shoulder pain.

	c.  The applicant applied for TSGLI following his car accident in December 2007.  His application was denied because it lacked the required documentation.  On 7 March 2011, he appealed that decision.  It was again denied.  He submitted a second level appeal which was denied on 11 June 2012.  In response to this denial, he requested an informal reconsideration of his claim due to the application of a mistaken standard under the TSGLI guidelines.  On 22 February 2013, this request was denied.

	d.  The TSGLI board erred in its reasoning by incorrectly stating the legal standard by which a service member is considered to have suffered a loss of ADLs.  Considering a service member's ability to adapt by using other parts of his body to perform ADLs is contrary to the TSGLI statute and implementing regulations.  This standard is also contrary to the VA procedural guidelines.  The use of this standard erroneously imposes a higher burden of proof on veterans unwarranted by either the governing statute or its implementing regulations.

	e.  The Army's TSGLI program has not specifically articulated a standard of evidentiary proof that an applicant must meet to prevail on his TSGLI appeal.  However, the Department of the Navy, in a Department of Defense memorandum, stated that the correct standard of proof is a preponderance of the evidence.  Executive branch officials involved in the administration of TSGLI have recognized that uniform legal standards should apply to common program questions between the armed forces.  Furthermore, administrative consistency demands that similar claims should receive similar judgments regardless of the Armed Force involved.  If a member of the Air Force receives a benefit under TSGLI for an incurred traumatic injury, a member of the Army experiencing a similar injury should receive the same benefit.
	f.  Counsel states the Federal Circuit addressed the standard of proof in a veteran's benefit case requiring proof of a service-connection to his injuries.  The court stated that where a statute is silent as to the standard of proof "the 'preponderance of the evidence' formulation is the general burden assigned in civil cases for factual matters."  The Supreme Court has reached similar conclusions with respect to the requisite standard of proof in other non-veteran benefit cases.

	g.  The evidentiary standards laid out above apply to the applicant's case.  Therefore, the Board must accept his claim if more than 50 percent of the evidence weighs in his favor.  Essentially, it is a "more likely than not" test, and under the law the applicant gets the benefit of the doubt.  The preponderance standard is the lowest standard of proof available in the law and it is a standard which courts characterize as "lenient."

	h.  Counsel contends that according to VA regulations implementing the TSGLI program, the inability to carry out ADLs is defined as an individual's inability to independently carry out at least two daily life functions.  The applicant qualifies for TSGLI benefits because he was unable to bathe or dress independently for 60 days, as required by the TSGLI statute and accompanying regulations.

	i.  Counsel states that when the TSGLI board denied the applicant's claim in June 2012, it imposed a different standard with a higher burden of proof unwarranted by either the governing TSGLI statute or its implementing regulations.  That letter of denial states "If a service member is capable of performing the tasks independently by the use of adaptive measures (such as the use of other limbs of the body) they are considered able to perform the task in a modified independent manner."  Implementing regulations do not require that a service member show that he cannot use "adaptive measures" nor do they bar benefits when a service member can act in a modified independent manner."  These terms appear nowhere in the Code of Federal Regulations (CFR) responsible for implementing the TSGLI.

	j.  Counsel points out that the term "adaptive measure" is not found in the TSGLI Procedural Guide.  It does provide that if a patient is able to perform an ADL by using accommodating equipment such as a cane, walker, commode,      etcetera, the patient is considered able to independently perform the activity.  However, the term "accommodating equipment" would not include an individual's other limbs under a common-sense reading.  A human limb does not fit with the examples of accommodating equipment provided by the Procedural Guide.  Thus, the standard set forth in the TSGLI board's denial letter, dated 11 June 2012, is unwarranted by the VA TSGLI implementing regulations.
	k.  Counsel also contends that the TSGLI board also erred in its decision because it misapplied its own standard to the facts and that the TSGLI board inferred the applicant was able to perform the ADLs independently through the use of "adaptive measures."  However, the medical documentation provided to the TSGLI board contradicts such inference.  The undisputed factual record makes clear that the applicant not only could not independently perform the ADLs of bathing and dressing, he also could not perform these functions with "adaptive measures."  He was prohibited from the range of motion necessary for these ADLs because of the intense pain and doctor's orders.  He could only perform them with the assistance of his wife.  Accordingly, he needed assistance from about 14 October to 13 December 2008.  Therefore, he should receive TSGLI benefits.

	l.  Following his first surgery, the applicant required assistance because of his loss of motion and strength in his shoulder.  The pain he experienced, combined with post-surgery physical restrictions, restricted his movement such that he was unable to bathe over half of his body independently.  His pain required prescribed medication.  He was instructed by his doctor to keep his arm in a sling and to restrict himself from doing any pushing, pulling, or lifting with his left upper extremity.  He was directed to undergo physical therapy to increase the passive range of motion of his left shoulder.  He did not remove his arm from the sling for the first month, and used the sling intermittently for an additional month.  The applicant's post-operative physical therapy reports confirm he experienced lasting pain and weakness in his shoulder which limited his range of motion and functionality.  Reports indicate that he continued to have pain in his left shoulder 6 weeks after surgery and weakness in the areas of forward elevation and abduction for almost 3 months.

	m.  Consistent with his surgeon's instructions, the applicant was restricted from bearing weight with his left shoulder, arm, and hand until 8 weeks post-surgery.  The applicant contends that he could not hold a bar of soap or shampoo bottle while bathing.  Due to the physical restrictions on his shoulder, his entire left arm was impaired such that the weight of the soap and shampoo bottles exceeded his capacity to support them with his left hand and arm.  While bathing, he received help from his wife to hold these bottles when needed.  He was not able to independently open these bottles because this would require him to use his left arm in a manner contrary to the recommendations of his surgeon.  His wife would open the bottles and dispense soap or shampoo accordingly.  She would then assist him in washing his entire body as he was unable to reach over half of his body.  To try and do so would have been disobeying his doctor's instructions and risk further injury to himself.  He continued to need his wife's assistance for at least 60 days after his surgery, when shortly after 13 December 2008 he had progressed to a point of being able to use his left arm in a manner that allowed him to bathe normally.

	n.  Counsel contends that even after 60 days post-surgery, the applicant still experienced pain in attempting to put on t-shirts.  When he returned to work and began wearing uniforms, he had difficulty with buttoning and zipping.  He still required his wife's assistance to dress.  Even 3 months after surgery, the pain in his left shoulder precluded him from performing normal physical activities or lifting anything over his head.  It was not until about 4 months after the shoulder surgery that he could dress without pain.

4.  Counsel provides copies of:

* Exhibit 1:  Affidavit from applicant, dated 19 April 2012
* Exhibit 2:  Indiana Officer's Standard Crash Report, for accident occurring on 8 December 2007
* Exhibit 3:  Initial medical evaluation of applicant, dated 31 December 2007
* Exhibit 4:  Progress Note, dated 14 February 2008
* Exhibit 5:  Orthopedic Consultation, dated 1 May 2008
* Exhibit 6:  Orthopedic Follow-up, dated 21 August 2008
* Exhibit 7:  Orthopedic Follow-up, dated 25 September 2008
* Exhibit 8:  Operative Note, dated 14 October 2008
* Exhibit 9:  Table 4:  Rehabilitation protocol following arthroscopic type II "SLAP" repair
* Exhibit 10:  Orthopedic follow-up, dated 8 January 2009
* Exhibit 11:  Orthopedic follow-up, dated 19 February 2009
* Exhibit 12:  Affidavit of applicant's spouse, dated 19 April 2012
* Exhibit 13:  Letter, United States Army Human Resources Command (HRC), TSGLI Branch, dated 11 June 2012
* Exhibit 14:  Letter, HRC, Special Compensation Branch, dated 
	22 February 2013

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a member of the Army National Guard, Active Guard Reserve, serving in the rank of sergeant first class, pay grade E-7.

2.  An Indiana Officer's Standard Crash Report shows the applicant was involved in an automobile accident on 7 December 2007.

3.  On 31 December 2007, the applicant was initially evaluated and was diagnosed with neck, thoracic spine, and lumbar spine pain with radiculopathy.  A treatment plan indicated he was to receive skilled therapy 2 to 3 times a week for a period of 4 to 6 weeks.  At a subsequent evaluation on 14 February 2007, the applicant reported that he had improved 60 to 70 percent overall.  However, he experienced increased pain in his neck and mid-back due to lifting 200 pound guns the previous day.

4.  On 1 May 2008, the applicant underwent an orthopaedic consultation.  His chief complaint was left shoulder pain.  He stated that he injured his left shoulder in an automobile accident on 7 December 2007 and has continued to experience anterolateral left shoulder pain with overhead activity or if he rolls over on it while sleeping.  The physician reviewed a magnetic resonance image and thinks the applicant is bothered by rotator cuff tendonitis of his shoulder.  Subacromial corticosteroid injection was recommended and accepted by the applicant.  He had a follow-up injection on 21 August 2008.

5.  On 25 September 2008, the applicant was again evaluated for left shoulder impingement syndrome.  The physician noted he had maintained active range of motion and reported discomfort at the extremes of forward elevation.  His overall range of motion was fairly well maintained.

6.  On 14 October 2008, the applicant underwent surgery of his left shoulder.  He tolerated the procedure well and was advised to keep his arm in a sling.  He was not to do any pushing, pulling, or lifting with his left upper extremity.  He was to start physical therapy as soon as possible for passive range of motion of his left shoulder.

7.  On 8 January 2009, the applicant's physician examined his shoulder.  It had been almost 3 months since his surgery.  He had a well maintained shoulder motion and did not have any pain on palpation but was weak regarding forward elevation and abduction.  He was progressing slowly and was recommended to continue with physical therapy for strengthening.

8.  On 19 February 2009, the applicant's physician determined that he had full active motion and strength of his left shoulder and released him from care.  He was able to participate and return to his activities without restrictions.

9.  On 19 April 2012, the applicant's wife stated in an affidavit that following the applicant's surgery she was required to assist him for at least 60 days with getting dressed and with bathing.

10.  Records at TSGLI, HRC, provide the following:

	a.  The available record of the applicant's claims shows:
* Initial application on or about 23 June 2010
* Initial application denied on 9 July 2010
* Application reconsidered on 6 April 2011
* Reconsideration denied on 19 April 2011
* Appeal received on or about 1 May 2012
* Appeal denied on 30 May 2012

	b.  Summary of case:  The applicant, a 33-year old right-handed male Soldier injured in a car accident.  He sustained whiplash and left shoulder injury.  He was later diagnosed with impingement and underwent surgery.  He claimed a loss of ADLs for 87 days.  The injury pattern - an isolated, uncomplicated single limb injury in an otherwise uninjured Soldier - is generally insufficient justification for payment under #20 of Schedule of Payments for Traumatic Losses.  It is reasonable expectation that a Soldier is capable of adopting, within 30 days of injury or surgery, adaptive behaviors to accomplish all activities of daily living in a modified independent manner in coping with a single limb injury.  The case was accordingly disapproved.

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 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 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.  

12.  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 percent of body or 30 percent of the face;

	h.  coma or traumatic brain injury; or

	i.  other traumatic injuries resulting in the inability to carry out two of the six 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 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 medical 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.

12.  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 his TSGLI claim should be reconsidered because the TSGLI appeals board failed to apply the legal standard by which a service member is considered to perform ADLs.  The standard applied in his case was not only contrary to the TSGLI statute but was also contrary to the VA procedural guidelines.  The appeals board erroneously applied a higher burden of proof unwarranted by either the governing statute or its implementing regulations.

2.  Counsel argues where a statute is silent as to the standard of proof "the 'preponderance of the evidence' formulation is the general burden assigned in civil cases for factual matters."  Counsel contends that the Board must accept this claim if more than 50 percent of the evidence weighs in his favor.  Essentially, it is a "more likely than not" test, and under the law, and the applicant should get the benefit of the doubt.  This Board is governed by Army Regulation 15-185 which requires a presumption of regularity and places the burden of proof on the applicant.

3.  Counsel also contends that according to VA regulations implementing the TSGLI program, the inability to carry out ADLs is defined as an individual's inability to independently carry out at least two daily life functions.  The applicant qualifies for TSGLI benefits because he was unable to bathe or dress independently for 60 days, as required by the TSGLI statute and accompanying regulations.  However, the healthcare provider is required to certify the loss of ADLs in Part B of the claim form; and, the ADL loss must be substantiated by appropriate medical documentation in the individual's records.

4.  Despite counsel's arguments and contention concerning the law governing this case, the applicant has not provided sufficient documentation to support his contention that his TSGLI claims were improperly disallowed.  Neither the available records nor the medical documentation the applicant provided establish a convincing basis to support his request.

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)                                         AR20130003201



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ABCMR Record of Proceedings (cont)                                         AR20130011894



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