BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140003958 


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 his previous request for payment of Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits was approved.  

2.  The applicant states:

	a.  His claim for TSGLI should have been approved based on the evidence he provided which clearly meets the criteria for TSGLI.  He was unable to perform activities of daily living (ADL) from October 2010 to June 2011.  He sustained multiple injuries requiring three surgeries which resulted in the inability to perform ADLs.  He worked with the Fort Drum, NY, TSGLI representatives throughout the entire process and followed their every guideline and recommendation but has not gotten satisfactory results.

	b.  He sustained serious injuries to his right shoulder and left ankle in March 2009 while serving in Iraq which resulted in a medical separation from the Army.  He submitted a TSGLI claim after his first shoulder injury in 2010 and it was denied stating he did not spend enough days in the hospital.  He then had ankle surgery in October 2010 and his claim was resubmitted for consideration to include both injuries/surgeries but it was again denied due to not enough medical information.

	c.  He had a second shoulder surgery in February 2011 and began working with a second TSGLI representative who submitted all his records for a "new look" since the surgeries overlapped.  His TSGLI representative was in frequent contact with the insurance company from March to December 2012 and was told they had not received his claim.  The TSGLI representative resubmitted it in July 2012 and in December 2012 he was told it was pushed aside as it contained over 800 pages of documentation but it would be reviewed.  He retired in March 2013 and received notification in April 2013 that his appeal had been denied and to refer to the decision that was made in March 2012.

	d.  He paid his premiums, sustained traumatic injuries resulting in three debilitating surgeries, and loss of ADLs for several months at a time.  From October 2010 to June 2011, he was in a wheelchair, non-weight bearing cast, walking cast, and corrective boot for his ankle surgery.  Then he went right to his shoulder surgery where his right arm was immobilized for 12 weeks.  His spouse took multiple weeks off work to care for him, some paid but mostly unpaid.  He was unable to drive to any appointments, bathe himself, feed himself, dress himself, transfer himself, or toilet independently.  He served nearly 23 years in the Army and is currently 90 percent (%) disabled by Department of Veterans Affairs (VA) standards.

3.  The applicant provides:

* seventy-six pages of various medical records/documents, dated between 9 September 2009 and 12 June 2012
* ten DA Forms 3349 (Physical Profile), dated between 28 December 2009 and 11 August 2011
* pages 3 to 10 of a 10-page report titled Function Report - Adult, dated 31 July 2010
* pages 2 to 10 of a 10-page report titled Adult Disability Report, printed on 8 July 2010
* six letters, dated between 1 October 2010 and 19 February 2014
* six memoranda, dated between 4 October 2010 and 8 March 2011
* two TSGLI ADL worksheets, dated 17 July 2012
* a Servicemembers' Group Life Insurance (SGLI) TSGLI application, dated 19 and 20 July 2012
* a VA Rating Decision, dated 4 June 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 August 1990 and he held military occupational specialty 11B (Infantryman).  He served through several reenlistments and/or extensions and he was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 July 2003.

2.  He served in Iraq from 23 June 2008 to 20 June 2009.  He was subsequently stationed at Fort Drum, NY.

3.  The applicant provides:

   a.  Ten pages of Standard Forms 600 (Chronological Record of Medical Care), dated between 9 and 23 June 2010, from the Physical Therapy Clinic, Fort Drum, wherein it shows he was undergoing post-operative shoulder rehabilitation at the clinic during that period.  This form shows he underwent surgery on his right shoulder on 19 February 2010.
   
   b.  A Carthage Area Hospital, Carthage, NY, physical therapy request/ certification form, dated 14 July 2010, from the Physical Therapy Clinic, Philadelphia, NY, wherein the examining physician stated, in part, the applicant injured his left ankle 15 years prior when running resulting in an inversion rollover. He felt a pop and had significant bruising and swelling.  He (the applicant) stated over the years he had more than 20 recurrent injuries (emphasis added).  He was waiting an orthopedic consult and his goal was to be able to walk better.  He subsequently underwent physical therapy at the clinic on or about 12 occasions between July and September 2010. 

4.  It appears the applicant subsequently filed a claim for TSGLI.  This claim is not available for review with this case.

5.  He provides a letter from the Office of SGLI (OSGLI), dated 1 October 2010, Prudential Insurance Company, denying his claim, a Prudential official stating his claim was not approved because there was insufficient medical documentation to support his loss of ADLs.

6.  He also provides:

	a.  A Medical Record-Supplemental Medical Data form, dated 8 October 2010, wherein it stated the applicant was a 38-year old male who presented to the clinic for left ankle pain and instability.  He reports 6 grade III [ankle] sprains with the last being in March 2009.  He reports instability daily with walking on even surfaces and tripping up stairs.  

	b.  A Carthage Area Hospital Operative Summary, dated 8 October 2010, wherein the operating physician stated the preoperative diagnosis was left ankle anterior impingement, posterior impingement with symptomatic os trigounum, and chronic lateral instability.  The surgery performed was left ankle exam under anesthesia, diagnostic arthroscopy with extensive debridement/synovectomy, arthroscopic exostecotmy, arthroscopic tibial exostecotmy, arthroscopic medial talar dome microfracture, open os trigonum excision, partial flexor hallucis longus tendon tear repair, and modified Brostrom lateral ligament reconstruction.

	c.  A Carthage Area Hospital Ambulatory Surgery Post-Operative Orders and Instructions form, dated 8 October 2010, wherein it shows he was discharged from the hospital on that date and instructed that he may resume all normal daily activities except for no weight on left foot and elevate the foot, keep the dressing clean/dry and do not remove.   

	d.  A memorandum, dated 21 October 2010, wherein Ms. CDG, Head Nurse, Orthopedic/Podiatry Clinic, Fort Drum, NY, stated the applicant had complex left ankle surgery on 8 October 2010, he was to remain non-weight bearing, and he required assistance with his ADLs.  It was recommended his spouse be allowed to remain home to assist him with his post-operative needs of 30 days.  He would be reevaluated on 3 November 2010 for his progress and limitations and he was expected to make a full recovery in approximately 6 to 9 months.

7.  He subsequently appealed the denial of his claim for TSGLI.  He provides a letter from Ms. RME, Casualty Benefits Case Manager, Fort Drum, wherein she stated the applicant sustained a traumatic injury when he fell down a flight of stairs during a combat patrol in Iraq trying to detain an Iraqi local national.  Due to the injury diagnosed by doctors, he was "down" for a considerable amount of time.  She believed the traumatic injury was well documented for 120 days of ADL loss.

8.  In a letter to the applicant, dated 2 February 2011, from OSGLI, Prudential Insurance Company, denying his claim, a Prudential official stated:

	a.  His claim was not approved because his loss did not meet the standards of TSGLI.  To qualify, a claimant must have been unable to independently perform at least two ADLSs for at least 30 consecutive days.  The claimant is considered unable to perform an activity independently only if he/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, and verbal assistance (must be instructed).  His inability to perform two or more ADLs for at least 30 days must also have been certified by a medical professional.

	b.  His claim for hospitalization was not approved because his loss did not meet the TSGLI standard.  Under TSGLI, hospitalization was defined as an inpatient hospital stay which lasts for 15 or more consecutive days in a hospital or series of hospitals.
9.  The applicant provides a Carthage Area Hospital Operative Summary, dated 10 February 2011, wherein the operating physician stated, in part, the applicant was a 39 year old active duty male who underwent arthroscopic rotator cuff repair several months ago.  His rehabilitation was marked by a delay in physical therapy as well as early return to overhead activities including swimming as well as overhead throwing despite restrictions and limitations.  During the course of his rehabilitation, he began to have persistent anterior shoulder pain as well as what he described as stiffness.  He underwent a stable anatomic double-row repair of the supraspinatus and infraspinatus tendons and stable biceps tenodesis with full passive range of motion of the elbow after anchor tenodesis.  He would be in a sling for a minimum of 6 to 8 weeks.  He would be allowed to go home after the same-day surgery and he would be sent for physical therapy per massive rotator cuff protocol. 

10.  He subsequently appealed the denial of his claim.  He provides a letter to himself, dated 19 March 2012, from the U.S. Army Human Resources Command (HRC), wherein an official with the TSGLI Branch stated after reviewing his claim and supporting documents they were unable to overturn the previous request.  He was claiming hospitalization and loss of ADLs for a traumatic event from March 2009 that resulted in an injury to his right shoulder.  No medical documentation was provided to verify he would be incapable of performing ADLs without assistance.  He had the right to appeal the denial of his claim to the Department of Army Review Boards Agency (ARBA).

11.  He subsequently submitted another appeal to the denial of his claim and provides an Application for TSGLI Benefits wherein:

	a.  In Part A (Member's Claim Information and Authorization), block 3 (Traumatic Injury Information), he stated that on 3 March 2009 while on a combat patrol in Iraq, he was trying to detain an individual when he lost his footing and fell down a flight of stairs injuring his right shoulder and left ankle.  On 19 February 2010, he had right shoulder surgery; on 8 October 2010, he had surgery for repair of the left ankle; on 10 February 2011, while healing from these surgeries he had another right shoulder surgery.  During these times, he had an inability to perform ADLs to include bathing, transferring, dressing, and toileting.  He signed and dated this form on 20 July 2012.

	b.  In Part B (Medical Professional's Statement) under Qualifying Losses Suffered by Patient, the physician checked the boxes for loss of hearing for right and left ears with the date of onset as July 2009.  


	c.  In Part B for inability to independently perform ADLs the physician checked the boxes for unable to bathe independently, dress independently, unable to toilet independently, and unable to transfer independently.  For all four of these boxes he listed the start date as 10 October 2010, the end date as 11 February 2011, and the type of assistance required for each as physical assistance (hands on).  For the ADL of bathing independently he also checked the box that he needed verbal assistance (must be instructed because of cognitive impairment).

	d.  In Part B for the predominant reason the patient was unable to independently perform ADL the physician stated complete reconstruction of the right shoulder and reconstruction of the left ankle due to a fall in March 2009.  

	e.  In Part B for medical professional's comments the physician stated in March 2009 the applicant was injured in a fall down 20 stairs injuring his right shoulder and left ankle.  He had right shoulder surgery in February 2010, left ankle surgery in October 2010, and a second right shoulder surgery in February 2011.  The physician signed and dated this form on 19 July 2012.

12.  His record contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 10 August 2012, wherein it shows an informal PEB convened on that date in the National Capital Region, and determined the following conditions were unfitting with the recommended disability percentage:

	a.  Residual surgical scars right (dominant) shoulder, left ankle (PEB referred as post-traumatic osteoarthritis status post surgical intervention with residual pain and loss of range of motion).  Onset of condition was during deployment to Iraq from 23 June 2008 to 20 June 2009, no specific trauma related - 30%.

	b.  Right shoulder instability, slap lesion, rotator cuff repair, status post surgical intervention (PEB referred as post-traumatic osteoarthritis status post surgical intervention with residual pain and loss of range of motion).  Onset of condition was during deployment to Iraq from 23 June 2008 to 20 June 2009, no specific trauma related - 20%.

	c.  Left shoulder instability and impingement (PEB referred as left shoulder instability).  Onset of condition was 11 July 1994, while playing softball - 10%.

	d.  Lumbar degenerative disc disease and lumbosacral spondylosis (PEB referred as lumbosacral spondylosis).  Onset of condition was 26 October 1999, related to hard landing during airborne training - 10%.

	e.  Left ankle osteoarthritis with anterior and posterior impingement with OS trigonum and lateral instability, status surgical repair (PEB referred as left ankle osteoarthritis).  Onset of condition was 28 February 1991 resulting from a training related sprain, further aggravated while deployed to Iraq in March 2009 - 10%.

13.  The PEB also found his conditions of mild sensorineural bilateral hearing loss, bilateral tinnitus, post-traumatic stress disorder (PTSD), and obstructive sleep apnea did meet retention standards and were not unfitting.  The PEB recommended a combined disability rating of 60% and retirement by reason of permanent disability.  

14.  On 22 October 2012, after being counseled on the PEB findings and recommendations and his rights and options, he concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.

15.  On 27 March 2013, he was honorably retired in the rank of SFC by reason of permanent disability.  He completed 22 years, 7 months, and 27 days of creditable active service.

16.  His record does not contain a line of duty (LOD) report that shows he suffered a shoulder or ankle injury as a result of a traumatic event on a specific date while serving in Iraq or at any other time during his active duty service.

17.  In a letter written to the applicant, from HRC, dated 22 April 2013, an official with the TSGLI Branch stated the applicant had exhausted all his appeal rights and he had the right to appeal the denial of his claim to ARBA.

18.  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.  The 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.  

19.  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.  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 (OIF) and Operation Enduring Freedom (OEF) 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.

20.  Effective 1 October 2011, Public Law 111-275 removed the OIF/OEF requirement for injuries incurred during the retroactive period.  As a result, TSGLI coverage will be provided retroactively for members who incurred severe losses as a result of traumatic injuries incurred between 7 October 2001 and 30 November 2005, regardless of where the injury occurred, and regardless of whether they had SGLI coverage.

21.  A traumatic event is defined as the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body.  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.   The event must involve a physical impact upon an individual.  Some examples would include: an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head.  It would not include an injury that is induced by the stress or strain of the normal work effort that is employed by an individual, such as straining ones back from lifting a ladder.

22.  There are basic eligibility requirements that must be met in order to be eligible for TSGLI.  All of the following must be met:

	a.  The member must be an active duty or Reserve service member on the date a traumatic event occurs.

	b.  The member must suffer a loss that is a direct result of a traumatic event and no other cause.

	c.  The member must survive for a period of at least 7 full days from the date of the traumatic event.

	d.  The member must suffer a loss covered under the law within 2 years of the traumatic event.


23.  Traumatic injuries covered under TSGLI may include the following types of losses:

	a.  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, quadriplegia, paraplegia, or hemiplegia, coma or TBI.

	b.  Other traumatic injuries resulting in the inability to carry out two of the six ADLs which are dressing, bathing, toileting, eating, continence, and transferring.  

24.  A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADLs.  If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.), the patient is considered able to independently perform the activity.  Requires assistance is defined as without the assistance, the patient would be incapable of performing the task.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his claim for TSGLI should be approved because he was unable to perform ADLs from October 2010 to June 2011.

2.  The evidence of record confirms he underwent left ankle surgery on 8 October 2010 and right shoulder surgery on 10 February 2011.  TSGLI claims require the loss of two of the six ADLs for 30 days or more if the claimant is incapable of performing the tasks without the required assistance.  

3.  He provides a TSGLI application, dated 19 July 2012, wherein a physician indicated he needed hands-on assistance with the ADLs of bathing, dressing, toileting, and transferring from 10 October 2010 to 11 February 2011.  In addition, the physician indicated he also needed verbal assistance with the ADL of bathing. 

4.  While it is recognized that for a period of time after each surgery the ADLs of bathing, dressing, toileting, and transferring would have been easier with assistance, there is insufficient evidence in the available records and the applicant has not provided conclusive evidence that shows he suffered a loss as the result of a specific traumatic event or that he required assistance and was totally dependent on someone else to perform two of the six ADLs for the required period of time as the result of a traumatic event/injury that would meet the qualifications for TSGLI as set forth by law. 

5.  His contention that his ankle and shoulder injuries were the result of a specific traumatic event on 3 March 2009 is noted; however, the available evidence contradicts this contention.  In addition, the PEB found that although his ankle injury/condition was aggravated while deployed in March 2009, the onset of his ankle injury/condition was 28 February 1991 from a training-related sprain.  The PEB also found that although the onset of his right shoulder injury/condition was during his deployment to Iraq from 23 June 2008 to 20 June 2009, it was not related to a specific traumatic event.  

6.  Absent a qualifying traumatic event, there is no 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)                                         AR20140003958



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ABCMR Record of Proceedings (cont)                                         AR20140003958



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