IN THE CASE OF:	  

		BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140002117 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests on behalf of the applicant, in effect, that his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim be reconsidered.

2.  Counsel states in an 11-page notice of disagreement that the applicant's loss due to injury is supported by sufficient medical information to grant his claim for TSGLI benefits.

	a.  Counsel references statutes and regulations governing TSGLI, wherein the program provides a one-time payment to service members who have sustained a serious injury.

	b.  Counsel states that the applicant submitted his original claim on 18 October 2011 which was denied because his loss did not meet the minimum standard of 30 days loss of activities of daily living (ADL).

	c.  Counsel states that the applicant submitted his first reconsideration that was denied on 13 February 2013 because the medical documentation he submitted did not indicate his physical injury made him incapable of performing the ADL for bathing and dressing as covered by TSGLI standards.

	d.  Counsel states the applicant submitted a third application for appeal on 
13 June 2013, which included additional medical records and documentation. This appeal was denied on 8 August 2013 because medical documentation did not indicate his injury made him incapable of performing the ADLs of bathing or dressing as covered by the TSGLI standards.  The applicant was subsequently advised that further appeals must be made to this Board.

	e.  A 31 May 2011 gunshot wound he suffered while he was in Afghanistan is the basis for the applicant's TSGLI claim.  He was also dropped several times while being carried to receive medical attention injuring his knee, left thumb, and forearm.  A medical doctor within the Army recommended surgery for his left knee.  Because of his injuries, he has been unable to bathe and dress independently from 31 May 2011 to 9 August 2011, a period of over 60 days.  

	f.  Counsel states the applicant's records reflect symptoms of limited ADL, difficulty with walking, difficulty dressing, difficulty with balance, restricted range of motion and constant pain showing that he was not able to bathe, dress and toilet on his own from 31 May 2011 through 9 August 2011.  He disagrees with the TSGLI's decision that medical documents do not indicate the applicant was unable to perform ADL of dressing, bathing, and toileting for at least 60 days.  The applicant ADL loss and the injury that caused it are supported by sufficient medical information to grant the applicant's claim.

	g.  Counsel states that the material error or injustice in this case is that the applicant’s claim for TSGLI benefits was arbitrarily denied even though a medical professional provided a "Part B" form affirming that the applicant met the criteria  for ADL coverage.  The Army denied his claim and did not provide Loss Codes that would adequately advise the applicant of the reason for a denial or factual justification for the denial in light of the preponderance of evidence in support of awarding benefits in this case.  Rather, each denial letter states that the documentation provided did not indicate that he met the TSGLI standards for loss of ADL despite the preponderance of the evidence to the contrary.

	h.  Counsel states that the Secretary of the Army has given clear instructions about the standard of proof required in claims for TSGLI benefits.  The evidentiary standard for TSGLI determinations is a preponderance of the evidence.  The applicant has shown he is entitled to payment for at least 60 days of ADL by a preponderance of the evidence.  Since his claim was arbitrarily denied, contrary to the greater weight of the evidence, the Board must reconsider the applicant's claim.  The applicant's injuries and ADL losses are well documented and supported by undisputed medical evidence.  Under TSGLI guidelines a claimant is considered unable to perform an activity independently if he/she requires at least stand-by assistance, physical assistance or verbal assistance to perform such ADL.  The applicant required at least stand-by assistance and physical assistance with dressing, bathing, and toileting.  The contemporaneous medical documents indicate he was incapable of performing such activities.  Doctor H______ certified the applicant's inability to perform a least two ADL for over 60 consecutive days.  The doctor states that the applicant experienced a traumatic injury when he suffered a left thigh gunshot wound on 31 May 2011.

	i.  Counsel contends that the 8 August 2013 decision of the Army TSGLI Office to deny the applicant's appeal should be reversed and his claim reinstated for a 60-day loss of ability to independently perform two or more ADLs  and $50,000.00 (based on the preponderance of the evidence), or the maximum award the office believes is justified by the evidence available.

3.  Counsel provides copies of:

* Exhibit A: TSGLI claim procedural history (1 page)
* Exhibit B: TSGLI Application (15 pages)
* Exhibit C: TSGLI denial letters (6 pages)
* Exhibit D: Letter of support (4 pages)
* Exhibit E: Medical timeline (5 pages)
* Exhibit F: Medical Records (95 pages)
* Exhibit G: New/Additional Medical Records (183 pages)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for 3 years on 12 January 2010.

2.  On 10 October 2010, he was deployed to Bagram, Afghanistan in support of Operation Enduring Freedom.

	a.  The available record of the applicant's claims:

* TSGLI Application dated 27 January 2014
* Initial TSGLI Application denial dated 18 October 2011
* TSGLI Application Reconsideration denial dated 13 February 2013
* TSGLI Appeal denied dated 8 August 2013

	b.  Health Record Chronological Record of Medical Care shows that on 31 May 2011 the applicant was initially seen at the emergency room (ER) clinic for a recent gunshot wound of the left thigh.  He arrived in the ER with a tourniquet that had been applied in the field.  He was sent to the Intensive Care Unit.  A motor examination demonstrated no dysfunction and he appeared to move his foot and toes without difficulty.  He denied any neck pain, shortness of breath or abdomen pain.  He was sent to the operating room for exploration and possible vascular repair.  His disposition was to be evacuated with follow-up as needed.  He was evacuated to the Medical Department Activity (MEDDAC), Fort Polk, LA for further treatment on 2 June 2011 for a period not to exceed 21 days. He out-processed from the MEDDAC on 20 June 2011 and he went home on convalescent leave for 30 days.  He continued to be treated in outpatient care.

	c.  The applicant's TSGLI Denial Letters state the following:

* 18 October 2011 – Claim for hospitalization due to other traumatic injuries was not approved because his loss did not meet the TSGLI standard  
* Hospitalization is defined as an impatient hospital stay which lasts for 15 or more consecutive days in a hospital that is accredited under the Hospital Accreditation Program
* Claim for inability to perform ADLs due to other traumatic injuries was not approved because his loss did not meet standards for the TSGLI
* A claimant must have been unable to independently perform at least two ADLs for at least 30 consecutive days
* 13 February 2013 – TSGLI program office reconsidered the decision of his previous claim and is unable to overturn the previous adjudication
* The documents provided for the event which took place on 31 May 2011, when the applicant was shot, did not indicate he was incapable of performing at least two of his ADLs for 30 consecutive days
* 8 August 2013 – The TSGLI office, after reviewing the claim and supporting documentation, were unable to overturn the previous adjudication
* The medical documents submitted or the event which took place on 31 May 2011 did not indicate he met the TSGLI standard for loss of ADLs
* The medical documentation did not indicate his injuries rendered him incapable of performing the ADLs of bathing, dressing, or toileting that are covered by TSGLI standards for 30 consecutive days or greater

3.  On 27 November 2012, the applicant retired due to physical disability (Permanent).  He had completed 2 years, 10 months, and 16 day of net active service this period.

4.  Counsel provides Part B of the TSGLI claim form signed by a Doctor H______.  The form is dated 27 March 2012 and it states that the applicant's inability to perform ADLs began on 31 May 2011 and ended on 9 August 2011.  The doctor states that the applicant needed assistance getting to and from the bath, undressing and dressing, working his lower body, getting to and from the toilet, getting on and off the toilet, cleaning and getting clothing on.  The doctor stated that during this time of loss, the applicant developed increasing left knee pain resulting in surgery on 10 January 2012.  The doctor indicates that he did not observe the applicant's loss, but his findings are based on a review of the applicant's medical records.

5.  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.  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.

6.  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.

7.  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.  Counsel contends, in effect, that the applicant’s TSGLI claim should be reconsidered because the applicant's left thigh injury and resultant loss of ADLs for over 60 consecutive days entitles him to the $50,000.00 TSGLI benefit.

2.  The evidence clearly shows the applicant suffered a gunshot wound to his left thigh on 31 May 2011.  This injury caused pain that subsequently required surgery.

3.  There is evidence showing that he initially applied in 2011 and his claim was reconsidered in 2013 and appealed in 2013.  His requests were denied because he failed to provide adequate medical documentation showing that his injury resulted in a qualifying loss or the inability to carry out two of the six ADLs.

4.  Counsel provides Part B of the TSGLI claim form signed by a Doctor H______.  The form is dated 27 March 2012 and it states that the applicant's inability to perform ADLs began on 31 May 2011 and ended on 9 August 2011.  The doctor states that the applicant needed assistance getting to and from the bath, undressing and dressing, working his lower body, getting to and from the toilet, getting on and off the toilet, cleaning and getting clothing on.  The doctor indicates that he did not observe the applicant's loss, but his findings are based on a review of the applicant's medical records.

5.  However, a review of the applicant's medical records fails to show he was completely incapable of performing at least two of his ADLs for 30 consecutive days as a result of the gunshot wound he received in his left thigh on 31 May 2011.

6.  Neither the applicant nor his counsel has provided sufficient documentation to support their contention that his TSGLI claims were improperly denied.  Neither the available records nor the medical documentation counsel provided establishes a basis to support this request.

7.  In view of the foregoing, this 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 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)                                         AR20140002117





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ABCMR Record of Proceedings (cont)                                         AR20140002117



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