BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140003979 


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, reversal of the decision by the Traumatic Servicemembers’ Group Life Insurance (TSGLI) Program Office to deny him payment of $75,000.

2.  The applicant states, in effect, he received $25,000 for Activities of Daily Living (ADL) loss for only 30 days.  However, the preponderance of the evidence, as argued by his attorney, supports 90 consecutive days of ADL loss.  Therefore, he should be entitled to an additional $50,000 TSGLI payment based on the evidence. 

3.  The applicant defers the submission of his evidence to counsel.  

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for TSGLI by the Board on the basis that the preponderance of the evidence supports that he had 90 consecutive days of ADL loss which entitled him to an additional $50,000 TSGLI payment. 

2.  Counsel states the decision of the Army TSGLI Office, dated 25 September 2013, to deny the applicant's appeal should be reversed and his claim reinstated for 90 days' loss of ability to independently perform two or more ADLs and $75,000 (based on the preponderance of the evidence).  Because he was already paid $25,000 for 30 consecutive days of ADL loss, he shall be entitled to an additional $50,000 or the maximum award the board believes is justified by the evidence available for the total ADL loss of at least 90 days following his motor vehicle accident (MVA). 

	a.  The applicant's initial TSGLI claim was awarded in part and a subsequent appeal for award was denied.  The claim was first awarded on 5 October 2012.  A request for reconsideration was filed by this office on 22 October 2012.  That reconsideration was denied on 1 February 2013.  Contrary to the preponderance of medical evidence provided in support of the applicant's claim, his claim was summarily denied without further explanation on the basis that "the medical documentation does not prove your inability to perform two or more ADLs for 60 consecutive days, your branch of service could not approve your claim."  A third application was submitted for an appeal by this office on 3 May 2013.  That appeal was denied on 12 June 2013.  Contrary to the preponderance of the medical evidence provided in support of his claim, his claim was summarily denied without further explanation on the basis that "there is insufficient documentation provided to support the inability to perform the ADLs of bathing and dressing for 60 consecutive days or greater, which is the next milestone required for additional payment.  A fourth application was submitted for an appeal by this office on 12 July 2013.  Again, despite the preponderance of evidence provided in support of his claim, his appeal was denied by the TSGLI office on 25 September 2013.  The reasoning given was that "the medical documents submitted did not indicate you were incapable of performing the ADLs of dressing or bathing for greater than 60 days."

	b.  The medical records address the applicant's injury incurred by an MVA which qualifies as a Traumatic Event and Traumatic Injury (TI).  On 19 June 2011, the applicant was involved in an MVA where his car swirled out of control and hit a pole.  He suffered from multi-trauma, a displaced fracture in the right femur subtrochanteric region, and a fracture of the right distal tibia and fibula.  He was immediately taken to Cape Fear Valley Health System and underwent surgery for "open reduction internal fixation (ORIF) right femur fracture, closed reduction and application of splinting material to the right distal tibia and ankle fracture."  He was then discharged home on 7 July 2011 and was to follow up with his doctor regarding his right ankle pilon fracture, which had a spanning external fixator applied to it.  He was also discharged with a home health care program to assist him at home with ADLs, "services required: skilled nurse and home health aide."  Because of the injuries and surgeries, he was unable to bathe and dress independently from 19 June 2011 through 10 October 2011, a period over 90 days.  The surgeries left him with no weight-bearing, limited/decreased range of motion, decreased endurance, assistance with ADLs daily, the inability to work in any capacity and assistance from home health care (skilled nurse) and another person during his recovery phase. 

	c.  His injuries occurred on 19 June 2011.  Due to the extent of the injuries, he required multiple operations on 6/19/2011, 6/23/2011, 6/24/2011, 7/01/2011, and 9/27/2011.  Because he fractured his tibia and fibula, he required a spanning external fixator for a period of over 90 days in which he required assistance with ADLs from 19 June 2011 through 10 October 2011.  His records reflect his need for assistance with daily living activities from a skilled nurse and a care giver.  The records show that he was not able to bathe and dress.  Based on the medical evidence, he had at least a 90-day loss of at least 2 ADLs.

3.  Counsel provides the denial letters and medical treatment records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 September 2007 and he held military occupational specialty 42A (Human Resources Specialist).  He served in Iraq from 29 April 2009 to 8 April 2010.  

2.  On 19 June 2011, he was involved in an MVA in Fayetteville, NC, when his car hit a median and caused it to swirl out of control and hit a pole.  He suffered from multi-trauma, laceration of the scalp, and a complex fracture to the right ankle.  His treatment included intramedullary nailing of the femur fracture, but no open reduction and internal fixation (ORIF) of the complex ankle pilon fracture.  External fixation was removed and converted to a CAM walker on 10 October 2011.  His home health nursing notes indicated he required assistance to bathe and dress at least as late as 2 August 2011.  

3.  He was honorably released from active duty at Fort Bragg, NC, on 13 April 2012 by reason of completion of his required service.  

4.  His original TSGLI application is not available for review with this case.  He appears to have submitted a TSGLI application based on hospitalization from 19 June 2011 to 7 July 2011 (19 days).  

5.  On 19 September 2012, the OTSGLI program office approved payment of $25,000 based on hospitalization for 15 consecutive days.  The medical records adequately documented the loss.  

6.  His request for reconsideration dated in or around October 2012 is not available for review with this case.  However, it appears he submitted a claim for TI based on inability to perform 2 ADLs for 90 days.  

7.  On 1 February 2013, the OTSGLI program office reviewed his request.  The medical records indicated his fracture was complex and there were frequent nurse home visits for the first few weeks of recovery.  He received health care three times per week for 31 days.  One document, dated 51 days after his injury, stated he was non-weight bearing on the right side with crutches.  However, no documents were provided from day 52 through day 90.  On day 93, he was using crutches to walk and on day 114, his external fixation to the right ankle was removed and converted to a CAM walker.  He was encouraged to begin partial weight bearing on day 114.  The OTSGLI program office indicated:

	a.  His claim for additional TSGLI benefits could not be approved.  In order to qualify for additional TSGLI benefits for ADL losses, ADLs would have to be lost for 60 consecutive days or more.  His claim for the inability to perform activities of ADLs for 60 days or more due to traumatic injury (other than traumatic brain injury (TBI)) was not approved because his loss did not meet the standards for TSGLI. 

	b.  In order to qualify, a claimant must have been unable to independently perform at least two ADLs for at least 60 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/or verbal assistance (must be instructed).  His inability to perform two or more ADLs for at least 60 days must also have been certified by a medical professional.

	c.  There was insufficient documentation to support 60 days or more of ADL loss.  As such, his request for reconsideration was denied. 

8.  On 13 May 2013, he submitted, through his attorney, a TSGLI application together with medical records for review.  He claimed the full amount of $100,000 under the Schedule of Losses for the following:

* Hospitalization due to TI, payment amount $25,000
* TI resulting in inability to perform at least 2 ADL for 90 consecutive days of ADL loss, payment amount $75,000

9.  On 12 June 2013, by letter, an official at the U.S. Army Human Resources Command (HRC) informed him that the Army TSGLI program office has reconsidered the decision of his previous claim.  At this time, the program office is unable to overturn the previous adjudication.  He had been previously awarded $25,000 for hospitalization and loss of ADLs for 30 days for his event which took place on 19 June 2011, in North Carolina.  However, according to TSGLI guidelines, these losses cannot be combined for payment.  There is insufficient documentation provided to support the inability to perform the ADLs of bathing and dressing for 60 consecutive days or greater, which is the next milestone required for additional payment.

10.  On 25 July 2013, his attorney submitted a request for reconsideration.  He stated the applicant's claim for injuries sustained as a result of a motor vehicle accident was awarded in part.  He received $25,000 for 15-day hospitalization. He should have received a higher amount than received because he also had over 30 consecutive days of ADL loss.  His claim for injuries sustained as a result of an MVA accident was denied.  The primary reason stated for the denial is "these losses cannot be combined for payment, there is insufficient documentation provided to support the inability to perform the ADLs of bathing and dressing for 60 consecutive days."  He (the attorney) is now making a claim for other traumatic injuries ADL loss and hospitalization.  He is not claiming ADL loss for his TBI loss.  He is appealing the TSGLI’s decision and asks for reconsideration based on his medical records and the observing doctor’s certification for OTT and ADL loss.

11.  On 25 September 2013, by letter, an HRC official informed him that the Army TSGLI program office had received his appeal request.  After reviewing the claim and supporting documentation, that office was unable to overturn the previous adjudication.  He had been previously awarded $25,000 for hospitalization and loss of ADLs for 30 days for his event which took place on 19 June 2011, in North Carolina.  However, according to TSGLI guidelines, these losses cannot be combined for payment.  The medical documents submitted did not indicate he was incapable of performing the ADLs of dressing or bathing for greater than 60 days, which is the next milestone required for further payment, per TSGLI guidelines.

12.  Public Law 109-13, 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 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.

13.  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.

14.  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.

15.  For losses listed in Part I (hearing, sight, speech, quadriplegia, hemiplegia, paraplegia, uniplegia, burns, amputations (of hand, fingers, foot, toes, big toe), limb salvage of arm or leg, facial reconstructions, comma from TI and/or TBI, hospitalization for 15 consecutive days, and others), multiple injuries resulting from a single traumatic event may be combined with each other and treated as one loss for purposes of a single payment.  For losses listed in Part II (Traumatic Injury (TI) resulting in inability to perform at least 2 ADLs and hospitalization due to TI for 15 consecutive days), payment amounts MAY NOT be combined with payment amounts in Part I - only the higher amount will be paid.  The total payment amount MAY NOT exceed $100,000 for multiple injuries resulting from a single traumatic event.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained a TI injury incurred by an MVA on 19 June 2011 when his car swirled out of control and hit a pole.  He suffered from multi-trauma, a displaced fracture right femur subtrochanteric region, and a facture right distal tibia and fibula.  He was hospitalized for 19 consecutive days and claimed TSGLI based on his hospitalization.  He was paid the authorized amount of $25,0000 based on this hospitalization.  

2.  He submitted additional claims, on three separate occasions, through his attorney, claiming loss of ADLs, specifically dressing and bathing.  Although his medical records contained documentation after the event indicating he did have several limitations in basic functional mobility, the submitted documents did not indicate the injury rendered him incapable of performing any ADLs up to the 60-day limit.  Additionally, he was informed that OTI hospitalization and OTI ADL loss cannot be combined for payment.  In order to receive payment, he must have 60 consecutive days of ADL loss.  

3.  After receiving a $25,000 TSGLI payment for hospitalization, the next threshold he would have needed to meet was loss of ADLs for 60 consecutive days.  In order to qualify, the applicant must have been unable to independently perform at least 2 ADLs for at least 60 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. 

4.  Regrettably, there is insufficient medical documentation indicating a physical incapacity of performing ADLs without assistance for the required number of consecutive days.  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)                                         AR20140003979





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ABCMR Record of Proceedings (cont)                                         AR20140003979



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