IN THE CASE OF:	

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130011959 


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 payment of Traumatic Servicemembers' Group Life Insurance (TSGLI).

2.  The applicant states he believes he meets the requirements with regard to needing physical assistance with his loss of Activities of Daily Living (ADL) from an Operation Enduring Freedom (OEF) injury for the period 9 August through         19 October 2011.

3.  The applicant provides:

* a memorandum
* a self-authored statement
* a letter
* Patient Release/Discharge Instructions
* 9 Standard Forms (SF) 600 (Chronological Record of Medical Care)
* Page 12 of an SGLV 8600 (Application for TSGLI Benefits)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel echoes the applicant's request for payment of TSGLI benefits.




2.  Counsel states:

   a.  A review of the TSGLI Procedure Guide and all information publically available on processing Army TSGLI applications indicates that an individual should receive payment under TSGLI for loss of the ability to independently perform two or more ADLs for 30/60/90/120 day periods.  Requiring assistance includes verbal or stand-by assistance because the patient’s ability fluctuates or actual physical assistance with the ADL.  Using this definition, the applicant clearly meets all of the requirements for compensation for loss of ADLs for a period of 90 days.

   b.  As indicated in the submitted medical documents and attached summary from his current nurse case manager, there is sufficient evidence in the electronic military medical record to support that the applicant was continuously unable to independently bathe or dress from 9 August 2011 when he was injured in Afghanistan until 30 November 2011.  It is clear in the medical record that he was hospitalized continuously for the period 9 through 16 August 2011.  His discharge notes from 16 August 2011 clearly indicate that he was non-weight bearing on his right leg and was required to keep his leg elevated.  Essential ambulation was to be with crutches.  Most of his mobility was accomplished by the use of a wheel chair or electric cart at Womack Army Medical Center for his appointments.  Since these items were readily available at the hospital and his home was not Americans with Disabilities compliant, he never received a wheelchair for home use.  Although he was issued a scooter at one point, it was discontinued due to his weakness and balance concerns.  He remained non-weight bearing until at least 30 November 2011 and continued to have limitations on dressing and bathing until Spring 2012.

   c.  As indicated by his current case manager, he was non-weight bearing and on crutches for the period 9 August through 30 November 2011.  In addition to his right leg injury, he also had imbalance issues, rib fractures, decreased range of motion in his right leg, and reduced strength and stamina due to his combat injury and related surgery.  His imbalance and reach issues required him to have both hands-on and stand-by assistance with a number of ADLs and in particular, bathing and dressing, which are well documented in his military medical records.  

3.  Counsel provides a legal position statement for TSGLI appeal on behalf of the applicant.





CONSIDERATION OF EVIDENCE:

1.  Records show the applicant enlisted in the Regular Army on 5 October 2010.  He completed training and was awarded military occupational specialty 11B (Infantryman).  Evidence further shows the applicant served in Afghanistan for the period 27 May through 13 August 2011.

2.  On 27 July 2013, the applicant was retired due to disability, temporary (enhanced).  He had completed 2 years, 9 months, and 23 days of creditable active duty service.

3.  The applicant's record contains an SGLV 8600, dated 19 October 2011, which shows the applicant applied for payment of TSGLI based on requiring assistance with ADLs for the period 9 August through 19 October 2011.  The applicant stated in his application that his injuries resulted from a military vehicle rollover in Afghanistan on or about 9 August 2011.  In his application for TSGLI benefits, a medical professional opined the applicant suffered from a right talus fracture, complex pain syndrome, and facial fractures.  He was unable to bathe, dress, toilet, or transfer himself independently for the period noted.

4.  The applicant provides and his record contains a letter, dated 28 March 2013, which states the Army TSGLI program office received the applicant's appeal request.  After reviewing his claim and the supporting documentation, they were unable to overturn the previous adjudication.  The TSGLI decision was denied because the documents he provided did not indicate that he was hospitalized for 15 consecutive days or more.  In addition, the documentation did not indicate that he was incapable of performing his ADL of bathing, dressing, toileting, or transferring for 30 days or more, per TSGLI guidelines.  If the applicant chose to appeal this decision, he was directed to submit a Notice of Disagreement to the Army Review Boards Agency.

5.  The applicant highlights excerpts from his medical records in support of his appeal as stated:

* 16 August 2011, discharged from hospital non-weight bearing with crutches for ambulation - No ADL review conducted by medical personnel
* 6 September 2011, patient still non-weight bearing - Apply cast due to difficulty dressing etc. with current device
* 19 September 2011, patient still non-weight bearing and on crutches - No ADL review conducted by medical personnel
* 20 September 2011, patient still non-weight bearing
* 25 October 2011, requires minimal assistance bathing, dressing, and food preparation - Has to rely on wife for transport and assistance
* 6 December 2011, patient non-weight bearing - Dysfunctional gait unable to complete motor exam
* 12 January 2012, Soldier has issues dressing, bathing, balance issues, decreased coordination, muscle weakness
* 19 January 2012, decreased strength and stability of right side, coordination loss
* 29 February 2012, doctor discharge note…9 August to 19 September 2011, he needed hands on assistance bathing, dressing, toileting, transfer
* 19 October 2012, doctor signs original TSGLI application indicating applicant required assistance bathing and dressing 

6.  The applicant provides an SF 600, dated:

* 14 September 2011, written by his case manager who states the applicant was using crutches to ambulate due to his fractured talus
* 12 January 2012, that shows he had issues dressing, bathing, working, exercising, reading, driving, and medication management
* 19 January 2012, that shows his gait and stance was abnormal; however, he had a walking boot and used crutches for assistance with mobilization

7.  The applicant provides a memorandum from his case manager, dated 22 April 2013, who states that she reviewed the applicant's medical record and it appears that the applicant required assistance with ADLs due to the injury to his right ankle talus fracture with closed reduction and percutaneous screw placement.  She further states he was completely non-weight bearing on his right leg from      9 August to 30 November 2011.  Assistance with several ADLs were needed due to his inability to bear weight on his leg, imbalance issues due to rib fractures, decreased range of motion in the leg due to injury, and reduced strength and stamina due to the combat injury and related surgeries.  The applicant's limitations were further reduced by his need to keep his leg elevated.  This often required the use of a wheelchair or electric cart for mobility at medical appointments or any outside activity.  Mobility devices were readily available at all military medical facilities; therefore, no wheelchair was issued although a scooter was issued at one time but discontinued due to weakness and balance concerns.  Although not classified as a non-medical attendant due to regulation, the applicant's spouse did assist him in completing his ADLs due to his limitations from the date he was released from the hospital on 18 August through                   30 November 2011.   

8.  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.

9.  ADLs are routine self-care activities that a person normally performs every day without needing assistance.  There are six basic ADLs:  eating, bathing, dressing, toileting, transferring (moving in and out of bed or chair) and continence (managing or controlling bladder and bowel functions).  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 to be modified independent.

10.  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.

11.  Appendix B (Glossary of Terms) of the TSGLI Procedures Guide, dated July 2012, provides the following definitions:

	a.  Traumatic Event, 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 a living body. 
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.
	
   b.  Traumatic Injury, the physical damage to a living body that results from a traumatic event.

	c.  External Force, as a force acting between the body and the environment, including a contact force, gravitational force, or environmental force, or one produced through accidental or violent means.
12.  A member who is hospitalized 15 consecutive days as the result of a traumatic injury is eligible for a $25,000.00 payment under TSGLI.  The count of consecutive hospitalization days begins when the injured member is transported to the hospital, includes the day of admission, continues through subsequent transfers from one hospital to another, and includes the day of discharge.  If a member is hospitalized 15 consecutive days, the member's hospitalization takes the place of the first ADL milestone payment only.  The 15 days of hospitalization cannot be substituted for any other ADL milestone payment.  Payment will be made for the 15-day hospitalization or the first ADL milestone, whichever occurs first.  There are two situations covered by this replacement:  the member is hospitalized due to coma, traumatic brain injury, or the member is hospitalized due to other traumatic injury.

13.  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's request for payment of TSGLI has been carefully considered; however, there is insufficient evidence to support this claim.  

2.  The evidence shows the applicant, while deployed in support of OEF, suffered injuries which resulted in a right talus fracture, complex pain syndrome, and facial fractures.  

3.  It is a reasonable expectation that a Soldier is capable of adopting, within     30 days of injury, adaptive behaviors to accomplish all ADLs in a modified independent manner while coping with a single limb injury.  While it is recognized that for a period of time after his surgery the ADLs of bathing, dressing, toileting, etc. may have been easier with assistance and, although he may have used assistance for a period of time, it appears shortly after surgery he was able to use both crutches and/or a wheelchair, had full use of his limbs, minus his right leg, and therefore would have been independently able to perform these ADLs without the requirement to be completely dependent on someone else for assistance.  

4.  Notwithstanding the applicant's sincerity, there is insufficient evidence in the available records and the applicant has not provided sufficient evidence to show he required assistance and was completely dependent on someone else to perform two of the six ADLs 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.

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)                                         AR20130011959





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ABCMR Record of Proceedings (cont)                                         AR20130011959



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