IN THE CASE OF:	  

		BOARD DATE:	    14 November 2013

		DOCKET NUMBER:  AR20130016249 


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 correction of his records to show he is entitled to Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits.

2.  He states:

	a.  He was notified on 12 July 2013 that his TSGLI claim had been denied because of his inability to provide medical certification that specified he could not perform two activities of daily living (ADL) for at least 30 consecutive days.

	b.  According to TSGLI, the inability to independently perform ADL is defined as inability to independently perform at least two of six ADL (bathing, continence, dressing, eating, toileting, and transferring) for at least 15 consecutive days for a traumatic brain injury and at least 30 consecutive days for any other traumatic injury.  The 30 consecutive days of ADL have been met and certified by the doctor who performed the surgery.

3.  He provides:

* four letters
* TSGLI application
* two DA Forms 3349 (Physical Profile)
* DD Form 689 (Individual Sick Slip)
* Standard Form 600 (Chronological Record of Medical Care)



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 21 December 1993 and was ordered to active duty in an Active Guard Reserve status on 11 January 1998.  At the time he submitted his application, he was serving in the Active Guard Reserve Program in the rank of sergeant first class.

2.  The evidence of record shows he was injured in a motor vehicle accident en route to duty on 11 October 2007.  He suffered a left-side shoulder injury.

3.  He was issued a temporary physical profile of 131111 in January 2008 for left shoulder pain.

4.  He provided surgical discharge instructions, dated 1 May 2008, which indicate he was instructed to perform pendulum exercises for his left shoulder and wear a shoulder sling.

5.  He was issued a permanent physical profile of 122111 in November 2009 for left shoulder pain and chronic left ankle pain.

6.  The evidence of record indicates:

	a.  His initial TSGLI application was received on or about 6 July 2012 and was denied on or about 7 August 2012.

	b.  His TSGLI application was reconsidered on or about 1 October 2012 and was denied on or about 20 December 2012.

	c.  His TSGLI appeal was considered on or about 2 April 2012 and was denied on or about 19 June 2012.

7.  In a letter, dated 29 March 2013, an orthopedic surgeon stated the applicant was his patient from 7 February to 1 October 2008.

	a.  The applicant first presented in his office for left shoulder pain with crepitus (a grating sound or sensation produced by friction between bone and cartilage or the fractured parts of a bone) following a motor vehicle accident that occurred in October 2007.  Surgery was recommended after repeated injections to his shoulder failed to improve pain.

	b.  The applicant underwent arthroscopic surgery on 1 May 2008 for clavicle excision and shoulder decompression.  Following surgery, the applicant was unable to perform several of his daily activities.  Lifting, pulling, and pushing with his left arm was restricted for up to 31 days or more following his surgery.

	c.  The applicant was unable to dress himself, drive a motor vehicle, and get in and out of bed and chairs without assistance for more than 31 days following surgery.

	d.  The applicant was released from his care on an as-needed basis on 1 October 2008.

8.  Part B (Medical Professional's Statement) of the applicant's TSGLI application, dated 29 March 2013, shows his attending physician essentially stated:

* he underwent surgery for his left shoulder for impingement syndrome acromioclavicular joint arthritis
* arthrosocopy with subacrominal decompression, distal clavicle incision, and pre-procedure was performed on 1 May 2008
* he was unable to transfer in and out of bed and dress without some assistance 
* he was in need of assistance for the first 31 days following his surgery
* he was unable to drive for 31 days following the date of his surgery

9.  In Part B of the applicant's TSGLI application, dated 29 March 2013, the attending physician stated that due to the type of surgery, he was unable to work for 31 days following his surgery on 1 May 2008.

10.  In April 2013, he submitted a request for reconsideration for TSGLI benefits.  The TSGLI office denied his request in March 2013 due to his inability to provide a medical certification that specified he could not perform at least two ADL for at least 30 consecutive days.

11.  In June 2013, an appeal summary revealed the Appeals Review Panel recommended denial of the applicant's appeal.  The appeal summary stated the applicant's documents did not indicate he was unable to perform basic ADL for 30 consecutive days.  Discharge documentation after surgery for the single limb injury instructed the applicant to do pendulum exercises for his left shoulder, apply ice, and wear a sling.

12.  In a letter, dated 1 July 2013, the Chief, Special Compensation Branch, U.S. Army Human Resources Command, Fort Knox, KY, informed the applicant that his appeal for TSGLI benefits was not approved.  The official cited the reasons for disapproval as:

	a.  The medical documentation submitted for his motor vehicle accident which took place on 11 October 2007 in Georgia did not indicate he met the TSGLI standard for loss of ADL.

	b.  The medical documentation he submitted did not indicate his injury rendered him incapable of performing the ADL of dressing or transferring that are covered by TSGLI standards for 30 consecutive days or greater.  In July 2013, he submitted another appeal for TSGLI benefits.

13.  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 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 deducted each month to cover the cost of the TSGLI policy.  Soldiers paying for SGLI coverage cannot decline TSGLI – it is a package.

14.  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 Operation Iraqi Freedom and Operation Enduring Freedom or under orders in a combat zone tax exclusion 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.

15.  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.  third-degree or worse burns covering 30 percent of the body or 30 percent of the face;

	h.  coma or TBI; or

	i.  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 ADL for 30 days or more (15 days or more in the case of TBI's).  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 contends he was denied a TSGLI claim because of his inability to provide sufficient medical certification that specified he could not perform at least two ADL for at least 30 consecutive days.

2.  The evidence of record shows he was involved in a motor vehicle accident and suffered an injury to his left shoulder in October 2007.  He subsequently underwent arthroscopic surgery on 1 May 2008 for clavicle excision and shoulder decompression.

3.  He applied for TSGLI benefits, but he was denied due to insufficient medical evidence that showed he was completely dependent on another person for completion of ADL.  His application was adjudicated on three separate occasions and it was denied.

4.  By law, TSGLI claims may be filed for loss of ADL if the member is completely dependent on someone else to perform two of the six ADL for 30 days or more.  The applicant in this case had a single limb, non-complicated injury that did not stop him from performing the ADL he claimed he could not do.  He did not provide substantiating evidence to support a contention that he depended on someone else to assist him for 30 days or more in the performance of his ADL.

5.  Neither the available records nor the medical documentation he provided establish a basis to support his request.  An individual is considered to need assistance only if he or she requires physical (hands-on), stand-by (within arm's reach), or verbal (must be instructed because of cognitive impairment) assistance, without which he or she would be incapable of performing the activity.

6.  Regrettably, based on the foregoing, there is no basis to grant the relief requested.

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 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)                                         AR20130016249



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ABCMR Record of Proceedings (cont)                                         AR20130016249



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