IN THE CASE OF:  	  

		BOARD DATE:  12 November 2014	  

		DOCKET NUMBER:  AR20140002420 


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 the applicant be awarded Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits.

2.  Counsel states:

	a.  The traumatic event causing the applicant's injury occurred on 22 February 2006.  The preponderance of the evidence established that he met the requirements for payment of at least a 90-day activities of daily living (ADL) loss as a result of a traumatic injury.

	b.  His TSGLI claims and subsequent appeals were denied.  The first claim was denied on 11 April 2012 and no reasoning was given by the board other than the applicant's claim did not meet the minimum standard of 30 days loss of ADLs.  

	c.  A request for reconsideration was filed by this officer in August 2012.  That reconsideration was denied on 13 February 2013.  Contrary to the preponderance of the medical evidence provided in support of the applicant's claim, his claim was summarily denied without further explanation on the basis that if a person is able to ambulate with adaptive devices such as wheelchair, 

crutches, use of a bedside commode, shower chair, plus 3D walker boot then they do not qualify for this ADL losses. 

	d.  A third application was submitted for appeal by this office on 21 June 2013.  Again, despite the preponderance of the evidence provided in support of the applicant's claim, his appeal was denied by the TSGLI office on 20 August 2013. 

	e.  The medical records address the applicant's injuries incurred by a fork lift accident which qualifies as a traumatic event and injury.  On 22 February 2006, the applicant was involved in a forklift accident.  The forklift crushed his left ankle against a cement slab causing a left tibial plafond fracture.  He was brought to the hospital via ambulance and had surgery performed on his left ankle the same day.  He had substantial mobility problems and required a bedside commode, shower chair, and wheelchair.  He needed standby and physical assistance with getting in and out of the shower which none of the assistive adaptive equipment above was sufficient.  He also needed physical assistance with getting dressed, which none of the assistive equipment remedied, and he needed help with dressing his lower extremity due to the severity of his ankle injury.  Because of his injuries, he was unable to bathe, dress, and transfer independently from 
22 February 2006 through 23 May 2006, a period over 90 days.    

	f.  The medical records contain notations from licensed medical providers illustrating ADL loss and a timeline of treatment he required physical assistance to bathe, dress, and transfer.  His records reflect non-weight bearing, decreased range of motion and strength, severe ADL and work restrictions, requirement of assistance and supervision/assistance for ADLs such as bathing, oral care, eye care, and mobility.  The records show that he was not able to bathe, dress, and transfer on his own from 22 February 2006 through 23 May 2006.

	g.  The preponderance of the evidence establishes that the applicant suffered at least 90 consecutive days of loss of the ability to independently perform ADLs, qualifying him for $75,000.00.  His 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 required at least stand-by assistance, physical assistance or verbal assistance to perform such ADL.  In this case, the applicant required at least stand-by assistance and physical assistance with bathing, dressing, and transferring.  The contemporaneous medical documents indicate he was incapable of performing such activities.


	h.  His attending physician certified the applicant's inability to perform at least two ADLs for over 90 consecutive days.  He also stated that the applicant required another person to help him bathe – he required "assistance to undress, get into bath and bathe lower extremities."  He stated the applicant needed another person to help him dress and transfer because he was unable to bear weight on his left leg due to the fixation and immobilizer on his left extremity.  The applicant's father provided a written statement evidencing his ADL loss.

	i.  On 13 March 2006, the applicant required another surgery and underwent an open reduction internal fixation of the left ankle.  Hospital reports show he required assistance with transferring and hygiene.  On 5 April 2006, his rehabilitation records indicate he still had difficulties with ADLs.  His medical and other supporting documents reflect the need for assistance with ADLs.

	j.  The accommodating equipment exception is not a valid reason to deny the applicant's claim.  According to CFR, which supersedes the procedures guide, equipment has no effect on the ADL of transferring.

	k.  No medical evidence exists that the applicant was able to use accommodating equipment to independently perform any of the claimed ADLs.

	l.  The TSGLI office's interpretation is contrary to the purpose of the TSGLI statute to compensate service members for qualifying losses.

	m.  The preponderance of the evidence supports the applicant's claimed inability to bathe, dress, and transfer independently for at least 90 days.  These activities are qualifying ADLs, and the applicant was unable to perform them without stand-by or physical assistance from 22 February 2006 through 23 May 2006, for a period of at least 90 days.

	n.  Based upon the traumatic event and resulting injury and required treatment, the evidence proves it is more likely true than not that the applicant required at least 90 days of assistance with the described ADLs.  The decision of the U.S. Army TSGLI office to deny the claim on grounds of insufficient medical information should therefore be overturned, as the applicant's inability to bathe, dress, and transfer independently for at least 90 days entitles him to an award of the $75,000.00 TSGLI in benefits. 

3.  Counsel provides:

* TSGLI claim procedural history
* TSGLI application
* TSGLI denial letters
* letter of support and doctor certification
* medical timeline
* medical records and supporting evidence (942 pages)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Army National Guard (ARNG) on 30 June 2005.  He was ordered to active duty for training on 9 August 2005.  He was released from active duty on 19 January 2006.

3.  Counsel provides medical records which show:

	a.  The applicant was admitted to the hospital on 22 February 2006.  His admission diagnosis was open pilon fracture, left lower extremity and open left lateral malleolus fracture.  

	b.  He underwent an occupational therapy evaluation on 23 February 2006 and the therapist determined he could function independently and he verbalized knowledge (page 2 of Occupational Therapy Evaluation, Adult record).

	c.  He was discharged on 26 February 2006.  His discharge summary stated he was stable enough for discharge and he was instructed to ambulate non-weight bearing on his left lower extremity.  His discharge equipment included a bedside commode, shower chair, and a wheelchair.   

	b.  He underwent surgery on 13 March 2006.  His admitting diagnosis was left tibial plafond fracture.  He was discharged on 16 March 2006.

4.  On 30 September 2006, he was honorably discharged from the ARNG for being medically unfit for retention. 

5.  Counsel provides a TSGLI application, dated 21 February 2012, wherein the applicant reports on 22 February 2006 he suffered an open pilon fracture to his lower left extremity after a crush injury at work.  A forklift crushed his left ankle against a cement slab.

6.  Part B (Medical Professional's Statement) of the applicant's TSGLI application shows the attending physicians stated the applicant could not perform bathing, dressing, or transferring independently during the period 22 February 2006 to 
23 May 2006.

7.  Part B of this TSGLI application also shows that his attending physician essentially stated:

	a.  On 22 February 2006 he suffered an open pilon fracture to his left lower extremity during a crush injury at work.

	b.  He had surgery on 22 February 2006 and used a wheelchair, walker, 3 in 1 chair and a walker boot until 23 May 2006 when he was allowed to start 50% partial weight bearing.

	c.  He had a second surgery with a left tibial open reduction and internal fixation on 13 March 2006 and a third surgery with tibiotalar fusion in June 2008.

	d.  There was suggestions he have a total ankle replacement. 

8.  In April 2012, the Office of Servicemembers' Group Life Insurance, Administrator of the TSGLI Program denied the applicant's claim for TSGLI.  His claim for the inability to perform ADLs due to traumatic injury (other than traumatic brain injury) was not approved because his loss did not meet the standards for TSGLI (must be unable to independently perform at least two ADLs for at least 30 consecutive days and inability to perform two or more ADLs for at least 30 days must be certified by a medical professional).

9.  In February 2013, the Special Compensations Branch (TSGLI) at the U.S. Army Human Resources Command, denied the applicant's reconsideration request for TSGLI because he did not qualify for ADL losses (bathing, dressing, and transferring due to the inability to bear weight on his left ankle).  The letter states if a person is able to ambulate with adaptive devices such as wheelchair, crutches, use a bedside commode, shower chair plus a 3D walker boot then they do not qualify for these ADL losses.      



10.  In August 2013, the Special Compensations Branch (TSGLI) denied the applicant's appeal of his TSGLI claim.  The letter states:

	a.  The medical documents submitted for his event which took place on 
22 February 2006 did not indicate he met the TSGLI standard for loss of ADLs.     

	b.  The medical documentation submitted did not indicate his ankle injury rendered him incapable of performing the ADLs of bathing, dressing or transferring that are covered by TSGLI standards for 30 consecutive days or greater.  

	c.  If the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a cane, crutches, wheelchair, etc.) then the Soldier is considered able to independently perform the activity.

11.  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 $25,000.00 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 taken out each month to cover the cost of the TSGLI policy.  Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package.  

12.  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% of body or 30% of the face;

	h.  coma or traumatic brain injuryI; or

	i.  other traumatic injuries resulting in the inability to carry out 2 of the 6 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 TBIs).  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 evidence shows the applicant was injured at work in February 2006 and he suffered a left ankle crush injury that was surgically repaired that same day.  He was hospitalized for 3 days.  He underwent a second surgery in March 2006 and a third surgery in June 2008.    

2.  Counsel now contends the applicant was unable to bathe, dress, and transfer independently from 22 February 2006 through 23 May 2006, a period over 
90 days.  However, he provided contemporaneous medical documentation that shows the applicant underwent an occupational therapy evaluation on 
23 February 2006 and the therapist determined he could function independently.

3.  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.  

4.  Counsel provided a TSGLI application filed 6 years later in which the applicant's attending physician stated he was unable to perform 3 ADLs during the period 22 February 2006 to 23 May 2006.  However, no substantiating documentation was attached.  

5.  Counsel's remaining contentions and the supporting documentation provided were carefully considered.  However, the submitted documentation does not indicate that the injury rendered the applicant incapable of performing any ADLs for 30 days or more, per TSGLI guidelines.  In addition, it appears he first applied for TSGLI about 6 years after the accident.

6.  Otherwise healthy patients are not rendered ADL incapable by a single limb trauma/dysfunction/immobilization.  

7.  Regrettably, based on the foregoing, there is an insufficient evidentiary basis for granting the requested relief.

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)                                         AR20140002420





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ABCMR Record of Proceedings (cont)                                         AR20140002420



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