IN THE CASE OF: 

		BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20140002272 


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 Traumatic Servicemembers' Group Life Insurance (TSGLI) payment for loss of visual acuity.

2.  The applicant states the previous denials of his claim are based on a misreading or misinterpretation of the medical information.  After he was released from active duty (REFRAD) medical care was not available and this precluded him from properly preparing the TSGLI package.  He is not responsible for the delay in obtaining treatment or submitting the request.

3.  The applicant provides a Memorandum for Record (MOR) outlining the errors that he and his advocate believe were made in the original TSGLI case and the reconsideration.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a U.S. Army Reserve (USAR) sergeant major, served on active duty from 17 October 2008 to 23 August 2011.  He was mobilized in support of Operation Enduring Freedom

2.  The applicant reported to the emergency room in Hattiesburg, Mississippi at 0850 hours on 9 May 2009 with pain in the right eye.  He reported that, the previous evening, he had been opening a bottle of apple juice when the lid 
popped off and struck him in the right eye.  The examination revealed nearly complete right eye hyphema (post-injury accumulation of blood in the anterior chamber of the eye).  There was no sign of laceration and the applicant could only sense light.

3.  An in-line-of-duty determination was established by an investigation completed on 3 September 2009.  The applicant sustained injuries to his eye from the explosion of a bottle of caustic liquid on 8 May 2009.

4.  The applicant was retained on active duty for medical treatment and, on 23 August 2011, he was honorably released due to completion of required active service.

5.  In a memorandum, dated 28 September 2011, the applicant acknowledged he understood the options available through the Military Occupational Specialty Administrative Review (MAR2) process and indicated, "I have fully articulated my desire for continued service on this statement."

6.  A 9 May 2011 report from the Mid-Florida Eye Center indicates Lori M_____O.D. found the, "… left eye was normal…"  On 2 May 2011, an intraocular lens was implanted in his right eye.

7.  A 1 September 2011 letter also from Dr. P____, also of the Mid-Florida Eye Center reports, "…As you know, his history is one of injury to the right eye (emphasis added) causing traumatic cataract…" 

8.  A Noncommissioned Officer Evaluation Report (NCOER) for the period 
31 November 2011 through 1 May 2012 issued to the applicant when he was assigned to a USAR Troop Program Unit with the 3rd Battalion, 348th Regiment, 158th Infantry Brigade shows his rater noted the applicant had passed the Army Physical Training Test effortlessly.  The rater marked the applicant as fully capable and recommended him for promotion.  No mention was made of any physical difficulties.  The senior rater marked the applicant's performance and potential as superior in the third block.

9.  A 12 February 2014 email, in response to an Army Review Boards Agency inquiry, the U.S. Army Human Resources Command (HRC) reported that the applicant had filed two claims for TSGLI.  The first was approved for $50,000.  The second was denied by the TSGLI appeals panel, "so he has in fact used up his chances with us…"

10.  An attached summary indicates there were two applications.  The first for a traumatic injury to the right eye resulted in a TSGLI award of $50,000.  The second was for a left eye cataract that was noted to be outside the 2-year window, but the development of the condition did not fit with the concept of a traumatic event.  The request for left eye injury was denied.  An accompanying claim for hearing loss was denied because the actual hearing loss did not reach the TSGLI threshold.  Both the left eye condition and the hearing condition were again denied upon appeal.

11.  Among the documents the applicant submitted to this Board to substantiate his application was a 28 February 2013 report written by a civilian consultant doctor to whom the Department of Veterans Affairs (VA) had sent the applicant.  He wrote:

The condition has existed since not given [sic].  The claimant indicates his eye condition is not due to a trauma.  He reports symptoms of distorted vision, enlarged images, pain, redness, swelling, discharge, glare, haloes, floaters, sensitivity to light, watering, or blurred vision.  The claimant does not have a history of diabetes.  He states he has not had any incapacitating episodes in the past 12 months due to his eye condition.  
The claimant is not receiving any treatment for his eye condition.
The claimant reports he was never hospitalized nor had any surgery 
for the above condition.  The claimant reports he does not experience 
any overall functional impairment from this condition.

12.  On 12 August 2013, the Special Compensation Branch, HRC informed the applicant that the previous adjudication of his claim based on a 9 May 2009 incident would not be overturned.  This decision was reached because the information the applicant had provided did not demonstrate that his eyesight problems met the prescribed TSGLI standards within 2 years (730 days) of the incident.  The hearing examination did not demonstrate that he met TSGLI standards. 

13.  In support of this application the applicant submitted a Memorandum from the Chief Nurse, Warrior Transition Battalion, Fort Stewart, Georgia.  She wrote, "…Visual exams by DR. P----- in 2011 within two years of injury consistently annotated the right eye to be 20/HM (count fingers at three feet) and the left eye to be at 20/400 prior to surgery."

14.  A letter, dated 12 August 2013, from HRC denied the applicant's appeal of the previous denial of his TSGLI claim because the documentation he provided for this event which took place on 9 May 2009 in Mississippi did not indicate that he met the TSGLI standards for loss of vision per TSGLI guidelines.  The vision examination provided indicated that his vision was not at least 2/2000, or worse, with corrective lenses and his visual field was not 20 degrees or less within 2 years (739 days) of his traumatic event.  Additionally the hearing examination provided did not indicate…clinically stable and unlikely to improve. 

15.  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 $25,000.00 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.

16.  The VA is the agency tasked with final administration of TSGLI.  The VA TSGLI website provides the following information in accordance with Title 38, Code of Federal Regulations (CFR), section 9.20, and Public Law 109-13:

	a.  The TSGLI rider provides for payment to Servicemembers who are severely injured and incurred a loss as a result of a traumatic event.

	b.  For the purposes of TSGLI, a traumatic event is defined as the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being.  The term "traumatic injury" does not include damage to a living body caused by a mental disorder or a mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance.

	c.  A service member must meet all of the following requirements to be eligible for payment of TSGLI:

		(1)  have been insured by SGLI at the time of the traumatic event;

		(2)  have incurred a scheduled loss and that loss must be a direct result of a traumatic injury;

		(3)  have suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services;

		(4)  have suffered a scheduled loss within 2 years (730 days) of the traumatic injury; and

		(5)  have survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case).

	d.  The TSGLI Schedule of Losses is comprised of two parts.  Part I lists specific losses that include items like loss of an extremity, an inability to speak or see, or hear.  Part II addresses the inability to carry out activities of daily living (ADL) due to a loss directly resulting from a traumatic injury other than a brain injury.

	e.  Each Uniformed Service will certify the eligibility of its own members for traumatic injury protection benefits based upon Public Law 109-13, section 1032, and Title 38, CFR, section 9.20.

17.  The TSGLE schedule for eyes for vision provides up to $50,000 coverage each eye for total and permanent loss of sight that has lasted 120 days.

18.  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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states 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 treatment and documentation were not available for him to file a timely claim for loss of vision in his left eye and for loss of hearing.

2.  There is no available evidence that links the loss of vision in his left eye and loss of hearing to any traumatic event or that his hearing loss is either related to trauma or that it rises to the compensable level.

3.  The medical evidence submitted by the applicant supports the conclusion that the development of the left eye condition is not related to trauma and furthermore the medical evidence contains the applicant's admission that his left eye condition was not the result of any injury.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.
5.  Without verifiable evidence of the applicant's contentions, the presumption of regularity must be applied and the applicant's 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)                                         AR20140002272



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ABCMR Record of Proceedings (cont)                                         AR20140002272



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