BOARD DATE:	  18 June 2014

		DOCKET NUMBER:  AR20130015389 


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 Traumatic Service Members' Group Life Insurance (TSGLI) claim.

2.  The applicant states he was involved in a severe motorcycle accident on 
16 April 2010 when he lost control and ran into a ditch hitting a culvert at 
35-45 miles per hour.  

	a.  The accident caused terrible damage to his shoulder which he still has not recovered from.  After the accident he was taken by ambulance to the Virginia Commonwealth University (VCU) emergency room in a neck collar and backboard.  Scans revealed that his left shoulder blade was almost completely smashed and broken into several fragments.  He also had a loss of consciousness and head trauma during the impact.

	b.  While in the hospital he was confined to his bed and required assistance to get in and out of bed, to and from the bathroom and shower, and to dress and undress himself.  Doctors told him not to get out of bed without assistance.  When he was discharged, he was instructed not to bear weight with his left arm or return to work without his doctor's approval.

	c.  He was discharged from the hospital on 17 April 2010 into the 24-hour care of his wife.  While at home, he could not perform any activities of daily living (ADLs) without the help of his wife.  He required her assistance to wash up in the shower, to get his clothes on and off, and even to get on and off the toilet and in and out of bed.  He had terrible headaches, which at one point were so severe that he had to go to the emergency room.  The severe pain and the effects of the pain medications he was taking contributed to his inability to do any of the ADLs he would normally have been able to perform himself.  If his wife had not been there to take care of him, he's sure he would have had to stay in the hospital until his surgery.  He needed help with dressing and bathing himself for at least the first 4 months after the accident, and he needed help with going to the bathroom and getting in and out of bed for at least the first 3 months after the accident.

	d.  He had surgery on his left shoulder on 28 April 2010.  The doctors found that it was a more severe fracture than they had thought.  While he was in the hospital, he required the help of nurses or his wife to do any sort of moving around, dressing, or getting in and out of bed.  He was discharged from surgery in a wheelchair and a shoulder sling.  The doctors told him he was not to move his arm for 6 weeks.  Later when he went for a follow-up visit his surgeons agreed that he would be totally incapacitated for 6 weeks.  He was given morphine in the hospital and oxycodone to manage pain at home.

	e.  His condition was so bad that he was not able to start physical therapy until almost 2 months later, on 18 June 2010.  If it had not been for his wife being there he's sure he would have had to stay in the hospital.  On 14 October 2010, he had a second surgery to remove scar tissue and loosen the shoulder joint.  He was again discharged in a wheelchair into the 24-hour care of his wife who continued to help him with his daily activities.

	f.  His left shoulder still has limited range of motion and he still needs help from his wife with some daily activities.  His doctors said the injury was so severe he will probably never recover the full function of his shoulder the way it was before the accident.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provided six exhibits, to include a procedural history, the TSGLI application, denial letters, letters of support, doctor certifications, a medical timeline, and medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a first sergeant serving on active duty in the Regular Army with Company B, 266th Quartermaster Battalion at Fort Lee, VA.

2.  On 16 April 2010, he was admitted to the Medical College of Virginia Hospitals and Clinics after suffering injuries in a motorcycle accident.  His motorcycle went into a ditch and he was thrown 20 feet.  He was wearing a full-face helmet and leather jacket.  A head CT (computerized axial tomography) scan showed subcortical hypodensities suggesting a DAI (diffuse axonal injury); however, he was fully alert and oriented.  A Virginia Commonwealth University Health System Radiology Department Report, dated 16 April 2010, found there was a comminuted fracture of the body and neck of the scapula with numerous small displaced fracture fragments.  He was released on 17 April 2010, with instructions to make a follow-up appointment with orthopedic surgery.

3.  A statement, dated 27 July 2011, was submitted by his wife.  She stated she was with him after the ambulance took him to the hospital on 16 April 2010.  He was in severe pain and the doctors said the CT scans revealed a severe and complex shoulder fracture.  They knew he was going to have significant surgery and the recovery process was going to be very difficult.

	a.  For at least 4 months after his accident, her husband was unable to do basic tasks by himself.  Due to the pain, inability to move his arm, and side effects of pain medication, she had to assist him in getting his clothing, pulling shirts on and off over his head, and guiding his immobile arm through the sleeve. She had to help him wash in the shower, get in and out of the shower, get and open his shampoo for him, get towels for him, and help dry him.  For at least the first 3 months after his injury, he also needed her help to get in and out of bed and on and off the toilet.

	b.  After his surgery, on 28 April 2010, he was at home under her care recovering while healing from the severe surgery.  They had a special chair delivered that would move his arm to promote healing.  He still couldn't move his left arm at the shoulder, he was having severe headaches, and he was groggy and unbalanced from pain and medication he was taking for the pain.  

	c.  When he was finally healed enough, the doctors released him to start physical therapy, he went several times a week for months with almost no improvement in his shoulder.  Eventually the doctors recommended another surgery to remove scar tissue and loosen the shoulder, which he had on 
14 October 2010.

	d.  His doctor said her husband would probably never fully regain the function of his left shoulder.  He continued to go to physical and occupational therapy for his shoulder and for the head injury caused by the accident.  She still had to help him with some daily activities because of his limited ability to move his left arm.  He especially had problems with any kind of overhead activity as it was still very difficult if not impossible for him to raise his left arm above shoulder level.

4.  He filed an SGLV 8600, dated 20 November 2012, claiming TSGLI for loss of ability to perform ADLs based on injuries suffered in a motorcycle accident on 
16 April 2010.

	a.  Observers stated he was thrown 20-25 feet off his motorcycle after losing control and running off the road.  He lost consciousness when his head impacted the pavement.  His next recollection was being in an ambulance being asked many questions, then transported to VCU Hospital in Richmond, VA.  Doctors later diagnosed him with a severely comminuted scapular fracture of his left shoulder, head injury, and scrapes/abrasions on his left shoulder, left wrist, and both knees.

	b.  He claimed loss of ability to perform two ADLs.

		(1)  Unable to bathe independently from 16 April 2010 to 15 November 2010.  Physical assistance and stand-by assistance were indicated.  Assistance needed was described as getting in and out of the shower, opening shampoo, and toweling. 

		(2)  Unable to dress independently from 16 April 2010 to 15 November 2010.  Physical assistance and stand-by assistance were indicated.  Assistance needed was described as assistance with shirts, underwear, shoe ties, and belt.

	c.  A physician signed the SGLV 8600 on 10 September 2011.  The physician indicated he had not observed the patient's loss, but had reviewed the patient's medical records.  He indicated there was a large volume of medical records but poor ADL information and some misinformation.  The physician stated the service member and caregiver statements gave better insight into his difficulties with ADLs.

5.  A History and Physical Report, dated 23 April 2010, from Colonial Heights Orthopaedics indicated he was treated for complaints of left shoulder pain.  He was involved in a motorcycle accident and was taken by ambulance to VCU Hospital where he was admitted on 16 April 2010 and discharged on 17 April 2010.  

	a.  His pain had occurred in a persistent pattern for 1 week and had been worsening.  The shoulder pain was moderate to severe and was characterized as a dull aching (with throbbing pain).  The pain was described as being located in the left shoulder and was aggravated by physical activity and any movement.  Relieving factors include rest, medication, and bracing.  Associated features included:  painful range of motion (ROM), decreased ROM, difficulty with overhead activities, dressing, pushing, pulling, and lifting.
	b.  Conservative treatment versus surgical intervention was discussed and the applicant decided to proceed with surgical management.

	c.  It was anticipated he would be out of work for 4 weeks following surgery, pending follow-up evaluation.

6.  On 28 April 2010, he was admitted to the Southside Regional Medical Center for surgery.  His postoperative rehabilitation indicated he would be started on CPM (continuous passive motion) postoperatively for the first 6 weeks.  He was placed in an abduction sling and was to be kept in the sling for 6 weeks.  Only passive range of motion was to be allowed for the first 6 weeks, mainly for the posterior soft tissue healing.

7.  A History and Physical Report, dated 10 May 2010, from Colonial Heights Orthopaedics is a follow-up postoperative evaluation.  According to the report there were no postoperative complications.  The applicant's symptoms were slightly improved compared to preoperative symptoms.  Postoperative pain was mild.  Pain medications included hydrocodone.  The applicant was not taking medication for DVT (deep venous thrombosis) prophylaxis.  Postoperative treatment included bracing.  The applicant complained about postoperative instructions and had shown improvement in activity level.

8.  A History and Physical Report, dated 11 June 2010, from Colonial Heights Orthopaedics is a follow-up postoperative evaluation.  According to the report the applicant was 6 weeks postoperative and there had been no postoperative complications.  His symptoms were slightly improved compared to preoperative symptoms.  Postoperative pain had been mild.  The applicant had been compliant with postoperative instructions and shown improvement in activity level.  His rehabilitation plan and physical therapy exercises were discussed.  The use of a sling was discontinued and aggressive ROM exercises started.  He was to continue neuromuscular training.

9.  A History and Physical Report, dated 9 July 2010, from Colonial Heights Orthopaedics is a follow-up postoperative evaluation.  According to the report, his left shoulder was found to have healed well.  There was no swelling or erythema (redness of the skin).  His ROM was limited.  He was released to light duty with no pushups, no setups, jogging permitted, and physical therapy three times a week.

10.  An undated letter from Dr. S_____, Colonial Heights Orthopedics, stated the applicant sustained a left comminuted intra-articular glenoid and scapula fracture following a motor vehicle accident.  On 28 April “2000” (i.e., 2010), an open reduction and internal fixation of the scapula fracture was performed.  He was 4 months from his injury, and he had limited function in his left shoulder.  He was unable to perform overhead activities and unable to raise his left arm above shoulder level. He also continued to have pain and difficulty with ADLs.

11.  Three certificates to return to work or school from Dr. S_____ stated on:

* 10 May 2010 - he would be totally incapacitated for approximately 6 weeks pending follow up
* 11 June 2010 - he would be totally incapacitated for approximately 4 weeks or until the approximate date of 9 July 2010 
* 7 July 2010 - he had been incapacitated and was being released to restricted duties at work/school as of 9 July 2010

12.  Daily Exercise/Procedure Flow sheets from the Fort Lee Physical Therapy Clinic, dated between 21 June 2010 and 25 May 2011, document his progress in physical therapy sessions.  However, none of these documents mention the loss of the ADLs of bathing and dressing.

13.  A letter, dated 24 November 2010, from Prudential, Office of Servicemembers' Group Life Insurance, notified the applicant his branch of service had completed evaluating his claim for TSGLI benefits.  Unfortunately his claim for hospitalization due to other traumatic injuries and the loss of ADLs due to other traumatic injuries for 120 days could not be approved.

	a.  There was not enough medical information to support his loss(es).  His medical providers must present information that demonstrates the extent of his loss(es).  This information must address the specific injury/injuries he sustained and illustrate a timeline of treatment.  The timeline of treatment would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, and registered nurses.  Because his claim did not have the necessary information, his branch of service could not approve his claim.

	b.  His claim for hospitalization was not approved because his loss did not meet the TSGLI standard.  Under the TSGLI standard, hospitalization is defined as an inpatient hospital stay lasting 15 or more consecutive days in a hospital or series of hospitals.

14.  A letter, dated 23 January 2012, from the U.S. Army Human Resources Command (HRC) notified the applicant the TSGLI Program office reconsidered the decision of his previous claim and was unable to overturn the previous adjudication.  The documentation he provided did not indicate that he met the TSGLI standards for loss of ADLs.  The medical documentation he submitted did not indicate his physical injury would make him incapable of performing the ADLs of bathing and dressing.

15.  A letter, dated 4 March 2013, from HRC notified him the TSGLI Program office reviewed his claim and supporting documentation but was unable to overturn the previous adjudication.  The medical documents he submitted for his motorcycle accident which occurred on 16 April 2010 while he was in Virginia did not indicate he was hospitalized for 15 consecutive days or more.  The documents he submitted did not indicate he was incapable of performing the ADLs of toileting, dressing, bathing, transferring, continence, or eating for 
30 days or more per TSGLI guidelines.  He was advised if he disagreed he had the right to apply to the Army Review Boards Agency.

16.  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.  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.  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 taken out each month to cover the cost of the TSGLI policy.  Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package.  

17.  A qualifying traumatic injury is an injury or loss caused by a traumatic event. HRC's official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II.  Each loss has a corresponding payment amount.

	a.  Part I losses include sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, and facial reconstruction.

	b.  Part II losses include traumatic injuries resulting in the inability to perform at least two ADLs for 30 or more consecutive days and hospitalization due to a traumatic injury 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 two of the six ADLs for 30 days or more.  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.

18.  A member who is hospitalized for 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 for 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.  

19.  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 an ADL loss 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.

20.  TSGLI claims may be filed for ADL loss 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).  Any 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.  The applicant's request for correction of his records to show entitlement to TSGI was carefully considered.

2.  The applicant was not hospitalized for 15 consecutive days.  The only documents submitted that mentioned the specific ADLs were the applicant’s and his wife's statements.  The numerous medical progress notes, treatment reports, and the daily exercise sheets from the physical therapy clinic do not mention specific ADLs he was having difficulty performing or how much assistance he required in performing them.

3.  The applicant has not provided sufficient documentation to support his contention that his TSGLI claim was improperly disallowed.  Neither the available records nor the medical documentation the applicant provided establish a basis to support his request.  The documentation provided does not explain how the injuries he received made him completely dependent on someone else to perform 2 of the 6 ADLs for 30 days or more.

4.  While the evidence clearly establishes that the applicant required medical care and support immediately following his accident on 16 April 2010 and extensive follow-up care for months afterwards, documentation required to justify a TSGLI payment for loss of ADLs has not been submitted. 

5.  In view of the foregoing, there is an insufficient basis for granting relief in this case.

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)                                         AR20130015389



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ABCMR Record of Proceedings (cont)                                         AR20130015389



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