BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20140002739 


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, in effect, his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim for an additional $50,000 be reconsidered.

2.  As a secondary issue, the applicant requests the Board opine if it is normal for him to have surgical clips in his pelvic region. 

3.  The applicant states:

	a.  He submitted his TSGLI application for review back in August 2010 and a determination was made on 30 November 2010.  He appealed this determination three times before this one, which makes this his final appeal according to the letter he received.  The previous appeal, along with this one, is being written due to the fact that he feels he qualified for another type of loss based on the TSGLI schedule of losses.  He submitted the previous three appeals in February and June of 2011 and December 2012; all three times he received a letter stating the appeal was not approved.  In that letter it stated pretty much everything he stated in his original appeal letter, which made it look like the letter was not reviewed. They briefly explained the losses and what it meant, but at no time did they explain why his losses did not qualify.  In the last letter he received, from his third appeal, it stated his injuries from Afghanistan did not meet the specifications.  He has never been to Afghanistan; his injuries are from his deployment to Iraq.  He knows it may a typographical error but it just makes him feel even more that the appeals he sent were not thoroughly reviewed.  To him it seems like they just skim through and then just agree with the first determination.  He is hoping this letter explains his situation better and will be reviewed a little more thoroughly.
	b.  On his application, his doctor annotated three Activities of Daily Living (ADL) that he was unable to perform as a result of his injury.  The start date of these three ADLs was 25 July 2007; this is the date of his injury, and goes to 1 November 2007 and 13 October 2007.  Two of these activities were lost for just over a 90-day time period and the other was just under 90 days.  Based on the TSGLI schedule of losses when you lose the ability to perform the qualifying ADL, in increments of 30 days, you are to receive $25,000 for each of the 30 days.  He received his TSGLI for the over 15-day hospitalization he had due to his injury.  If this is the case, the 15-day hospitalization would offset the first 30 days of the lost ADL.  This would mean he still had two qualifying ADLs for 60 days after that hospitalization, which would be an additional $50,000.  His application states that he was unable to bathe independently and was unable to transfer independently from 25 July 2007 to 1 November 2007.  These are two qualifying ADLs according to the application.  He will now go into more detail about the ADLs he believes qualify him for additional benefits:

		(1)  Unable to maintain continence independently: According to the qualifying application it states "He/she is partially or totally unable to control bowel and bladder function."  He had a colostomy bag from 25 July 2007 to 13 October 2007, a period of 79 days.  If one were to take out 15 days for his initial benefit (15-day hospitalization) it would leave 64 days.  Even if 30 days were taken away it would leave 49 days.  When you have a colostomy bag you have absolutely no control over your bowel; this is the reason for the bag.  He does not feel there is a need to explain this more and he knows in his final appeal they said he did not qualify for this ADL.  He does not know how they can disqualify him for this ADL due to him having a colostomy.

		(2)  Unable to bathe independently:  According to the qualifying application it states "He/she requires assistance from another person to bathe more than one part of the body or get in or out of the tub or shower."  Due to his emergency surgery in Iraq, where they operated through his abdomen, he required physical assistance, at first, to get in and out of the shower.  He also required assistance with his colostomy bag.  While on convalescent leave, he did not require physical assistance, but he did require stand-by assistance.  Someone was to be close by while he bathed in case he would have needed assistance.  The time period for this was 25 July 2007 to 13 October 2007.  Once he went in for his reversal surgery he then required physical assistance to bathe during his recovery from 13 October 2007 to 1 November 2007.  When these dates are combined they equal 98 days.  Once again if you were to take out 15 days for his initial benefit (15-day hospitalization) it would leave 83 days.  Even if 30 days were taken away it would leave 68 days.

		(3)  Unable to transfer independently:  According to the qualifying application it states "He/she requires assistance from another person to move into or out of a bed or chair."  Due to his emergency surgery in Iraq, where they operated through his abdomen, he required physical assistance, at first, to get in and out of bed.  By the time he initially left the hospital, he required stand-by assistance while he moved from his bed to his chair.  During his convalescent leave, he required stand-by assistance while moving from chair to chair or even walking down/up stairs.  The time period for this was 25 July 2007 to 13 October 2007.  Once he went in for his reversal surgery, he then required physical assistance to transfer during his recovery from 13 October 2007 to 1 November 2007.  When these dates are combined they equal 98 days.  Once again if you were to take out 15 days for his initial benefit (15-day hospitalization) it would leave 83 days.  Even if 30 days were taken away it would leave 68 days.  

	c.  Even though two of these ADLs required "stand-by assistance" for the majority of the time period per the application that would qualify for the ADL.  Due to his surgery, his abdomen was not fully healed by the time he went on convalescent leave.  Due to this he was unable to stand up straight and he required assistance, at a minimum, for the above activities.  This was not an easy recovery due to the size of the incision on his abdomen and the fact that he was trying to adapt to having a colostomy.  He requests that his case get another look and take in account these ADLs that he required assistance with while injured/recovering from his injuries that he sustained while deployed to Iraq as part of the Michigan Army National Guard (MIARNG).  

	d.  As stated above, he received $25,000, which was for his hospitalization, and he feels that he should have received an additional $50,000 due to the assistance required to perform the ADLs listed above for a period of 60 days (Unable to bathe independently & Unable to transfer independently).  As stated above he even required assistance for all three ADLs and the same time for a period of over 30 days, less than 60 days, which would entitle him to an additional $25,000.  However, the two ADLs, unable to bathe independently and unable to transfer independently, above required over 60 days of assistance which would entitle him to an additional $50,000.  

	e.  He is unsure how the Chief of Surgery at Womack Army Medical Center, his surgeon, says he qualifies for these ADLs but a doctor who is just reviewing his documents says he does not.  He would think the reviewing doctor would consider the recommendation made by the doctor that actually dealt with him, the Soldier.  On top of this, the few people he talked with at the TSGLI office who had reviewed his case said they believed he qualified, too.  He would like to request a detailed explanation on why the one person that approves this appeal can be the only one who doesn't think he qualifies. 
	f.  He has attached more documentation from current doctor visits.  He knows it has nothing to do with this appeal but he wanted to show the aftereffects to the above injury, since he feels the reviewing official feels this was a minor injury.  He currently has severe lower back pain, that is being treated by pain management over the last year and a half, that is located at his injection site of the shrapnel.  In addition to this he is in the process of seeing a gastrointestinal specialist to start working on his GI issues that he is having due to this injury.  He knows the Board will look at this as having no relation to this appeal but he wanted to show how significant this injury has been on his life so far.  

	g.  The following paragraph was in his final appeal and he was seeking the opinion of the reviewing doctor because none of his civilian doctors would tell him anything.  In the appeal denial this was not addressed at all; a simple "We cannot comment" would have sufficed.  This paragraph will probably be considered as not part of the appeal but he would like another opinion.  In the more current medical documentation attached to this appeal it states that he has surgical clips in his pelvic region.  Is this normal in cases such as his or should these clips not be in him?

3.  The applicant provides:

* TSGLI application, dated 26 August 2010
* Informal line of duty determination
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Narrative summary
* Hospital admission record, operative report, and other treatment record

CONSIDERATION OF EVIDENCE:

1.  With respect to the applicant's question for the Board to advise him if the presence of surgical clips in his pelvic region is normal, the Army Board for Correction of Military Records (ABCMR) corrects military records.  The applicant's question is not within the purview of this Board.  The applicant is advised to consult with his medical provider regarding any health issues.  Therefore, this issue will not be discussed further in this Record of Proceedings. 

2.  Having had prior service in the MIARNG and the Regular Army, the applicant enlisted in the MIARNG on 30 November 2005.  He held military occupational specialty 42A (Human Resources Specialist).  

3.  He was ordered to active duty on 29 May 2006 and subsequently served in Iraq from 24 August 2006 to 27 July 2007.  On 25 July 2007, he was injured by a piece of shrapnel that lodged in his abdomen:
	a.  He was sent to the troop medical clinic where it was discovered he was bleeding in his abdomen.  He was medically evacuated to a combat hospital in theater and underwent surgery (colostomy).  He was then transferred through Landstuhl Regional Medical Center to Womack Army Hospital at Fort Bragg, NC. 

	b.  At Womack, doctors explained to him he would have to have the colostomy bag for 3 to 4 months before doctors could perform the reversal.  He stayed in the hospital for about two weeks and he was then sent on convalescent leave for 60 days.  

	c.  He was scheduled for the colostomy reversal on or about 13 October 2007 and after staying in the hospital approximately 7 to 10 days, he was sent on 30 days of convalescent leave.  

4.  A DA Form 2173 was initiated on 7 August 2007 and indicated he suffered an abdominal injury secondary to shrapnel from mortar fire.  His injury was determined to be in line of duty. 

5.  He was honorably released from active duty on 5 February 2008 to the control of the state.  He continued to serve in the ARNG and he attained the rank/grade of sergeant first class/E-7. 

6.  On 26 August 2010, he submitted an "Other Traumatic Injury (OTI)" TSGLI application.  He indicated:

* the qualifying loss suffered by him was "inpatient hospitalization for at least 15 consecutive days" and he was hospitalized from 27 July 2007 to 5 February 2008
* he was unable to bathe independently from 25 July 2007 to 1 November 2007; he needed physical assistance (hands-on) and standby assistance
* he was unable to maintain continence independently from 25 July 2007 to 13 October 2007; he did not indicate the type of assistance he needed
* he was unable to transfer independently from 25 July 2007 to 1 November 2007; he needed physical assistance (hands-on) and standby assistance
* a medical professional in General Surgery stated he observed the applicant's loss and signed the TSGLI form on 26 August 2010 

7.  Although not available for review, it appears that on 10 September 2010 the Office of TSGLI (OTSGLI) approved payment in the amount of $25,000 for 30 days of OTI ADL loss (not hospitalization).

8.  On 17 February 2011 (received by the TSGLI Office on 22 February 2011), the applicant appealed the decision.  His appeal and supporting documents are not available for review with this case.  However, based on the response he received it appears he appealed the claim for OTI ADL loss for 30, 60, 90, and 120 days; i.e., he appears to have claimed inability to perform ADLs due to his injury beyond 30 days.

9.  On 4 April 2011, the Appeal Board at the OTSGLI voted 6 out of 6 to deny all claimed losses.  There was no documentation provided to suggest he was unable to independently maintain colostomy until it was removed on 12 October 2007.  ADL loss beyond 30 days was not found in the documents he provided.  His claim was denied. 

10.  On 6 April 2011, by letter, Prudential Office of SGLI notified the applicant that his branch of service completed an evaluation of his claim for Traumatic Injury Protection under the TSGLI program.  His claim for the inability to perform ADLs due to traumatic injury (other than traumatic brain injury) beyond 30 days could not be approved.  

	a.  The 15-day hospitalization benefit is not payable because the loss cannot be combined with the previous claim paid for the loss of ADLs due to other traumatic injuries for 30 days.  The hospitalization benefit is a proxy for the first increments under the loss of ADLs. 

	b.  His claim of inability to perform ADLs due to traumatic injury beyond 30 days was disapproved because his loss did not meet the standards for TSGLI.  In order to qualify, he must have been unable to independently perform at least 2 ADLs in at least 30 consecutive days.  A member is considered unable to perform an activity independently if he or she requires at least one of the following without which they would be incapable of performing the task:  physical assistance (hands on), stand by assistance (within arm's reach), or verbal assistance (must be instructed).  

11.  On 7 July 2011, he submitted a second appeal.  This appeal is also not available for review with this case.  A summary sheet shows the medical evidence he submitted did not support additional loss.  His appeal was denied on 15 August 2011.  Based on the denial summary, the applicant appears to have submitted medical and non-medical documents.  He claimed OTI ADL loss for 80 days for bathing and continence and 100 day for transfer.  In his appeal the applicant:

	a.  Argued that because the doctor certified the ADL loss as claimed by the applicant, OTSGLI should accept that certification without question and find his claim valid.  

	b.  A review of all the evidence found that previous decisions in his case have been proper and he presented no new medical evidence to warrant any additional loss per TSGLI guidelines. 

12.  On 12 December 2012, he submitted an appeal.  His appeal consisted of a write-up similar to the one in this application.  His appeal was denied on 1 May 2013.   As such, on 13 May 2013, by letter, U.S. Army Human Resources Command (HRC) notified the applicant that the TSGLI office conducted a review of his appeal request.  Based on his appeal and the documents he provided, the TSGLI office was unable to overturn the previous adjudication.  He was previously awarded $25,000 for hospitalization and loss of ADLs for 30 days for his event that took place on 25 July 2007.  The medical documents submitted did not indicate he were incapable of performing ADLs of bathing, continence, and transferring for greater than 60 days, which is the next milestone required for further payment, per the TSGLI guidelines.  

13.  Public Law 109-13, signed by the President on May 11, 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 DOD.  As of 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.  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 or the location in which they incurred the injury will be covered by TSGLI.

14.  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 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:  total and permanent loss of sight in one or both eyes, loss of hand or foot by severance at or above the wrist or ankle, total and permanent loss of hearing in one or both ears, loss of speech, loss of thumb and index finger of the same hand by severance at or above the metacarpo- phalandeal joints, quadriplegia, paraplegia or hemiplegic, third (3rd) degree or worse burns covering 30% of body or 30% of the face, and coma or TBI.

15.  The six ADLs 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.  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 sustained an abdominal injury secondary to shrapnel from mortar fire during his combat tour in Iraq.  His injury was determined to be in line of duty.  He was medically evacuated to a combat hospital in theater and underwent surgery (colostomy).  He was then transferred through Germany to Fort Bragg, NC.  He stayed in the hospital for about two weeks and he was then sent on convalescent leave for 60 days.  He underwent colostomy reversal on or about 13 October 2007 and after staying in the hospital approximately 7 to 10 days, he was sent on 30 days of convalescent leave.  

2.  He filed a TSGLI claim in 26 August 2010.  He claimed OTI TSGLI for both hospitalization and ADL loss.  He indicated the qualifying loss suffered by him was "inpatient hospitalization for at least 15 consecutive days" and he was hospitalized from 27 July 2007 to 5 February 2008 and he also claimed:  

* he was unable to bathe independently from 25 July 2007 to 1 November 2007; he needed physical assistance (hands-on) and standby assistance
* he was unable to maintain continence independently from 25 July 2007 to 13 October 2007; he did not indicate the type of assistance he needed
* he was unable to transfer independently from 25 July 2007 to 1 November 2007; he needed physical assistance (hands-on) and standby assistance

3.  Although not available for review, it appears on 10 September 2010, the OTSGLI approved payment in the amount of $25,000 for 30 days of OTI ADL loss.  The 15-day hospitalization benefit is not payable because the loss cannot be combined with the previous claim paid for the loss of ADLs due to OTI injuries for 30 days.  The hospitalization benefit is a proxy for the first increments under the loss of ADLs. 
4.  Aside from his first application, his multiple appeals were in the forms of memoranda or letters disagreeing with the decision to award him TSGLI for only 30 days.  In each appeal, his claim of inability to perform ADLs due to traumatic injury beyond 30 days was disapproved because his loss did not meet the standards for TSGLI. 

5.  In order to qualify, the applicant must have been unable to independently perform at least 2 ADLs in at least 30 consecutive days.  A member is considered unable to perform an activity independently if he or she requires at least one of the following without which they would be incapable of performing the task:  physical assistance (hands on), stand by assistance (within arm's reach), or verbal assistance (must be instructed).  In addition, the ADL loss must have been certified by a healthcare provider and substantiated by appropriate documentation, such as occupational therapy/physical therapy reports, discharge summaries, and other medical documentation.  

6.  TSGLI analysts strive to apply a "reasonable person" standard to each claim with a bias in favor of the claimant while still maintaining a high degree of internal consistency among similar claims.  There is insufficient medical documentation indicating a physical incapacity of performing ADLs without assistance beyond 30 days.  The injury pattern is consistent with up to 30 days of ADL loss.  A colostomy in and by itself is not sufficient justification for ongoing ADL loss.  

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140002739



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ABCMR Record of Proceedings (cont)                                         AR20140002739



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