IN THE CASE OF:    

		BOARD DATE:  18 November 2014	  

		DOCKET NUMBER:  AR20140004086 


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, the mother of a former service member (FSM) acting on his behalf, requests, in effect, correction of the FSM's record to show a Traumatic Servicemember's Group Life Insurance (TSGLI) claim was approved.  

2.  She states:

	a.  She is the caregiver for the FSM who has given her power of attorney (POA).  He incurred a traumatic brain injury (TBI) and has other medical conditions.  He was in two bombings in Iraq.  He is paralyzed on his right side and has weakness on his left side.  A TSGLI claim for TBI was disapproved on the basis that he can perform activities of daily living (ADLs) (bathing, dressing, eating, toileting, etc.).

	b.  The FSM cannot do anything for himself.  She cooks for him, and she feeds, bathes, and dresses him.  She also helps him get to the bathroom.  He is on 15 medications, which she gives him day and night.  It is not easy.  He went to war as a man, and he came back as a child.  It hurts her heart that he is in pain all the time.  He is very forgetful, stays upset, argues, and gets flashbacks.  He often fights in his sleep and falls off the bed.  His nerves are bad and his eyes are bad.  All he does is sit in his wheelchair and cry.  He can't stand long because he is paralyzed.  He still has metal in his neck from the bomb.  Since 2009, he has gotten much worse.  He yells, screams, and curses.  He was a loving person, but his mind is messed up.  

	c.  The FSM was an inpatient for more than 15 days.   
3.  She provides:

* self-authored list of medications
* letter from the Special Compensations Branch (TSGLI), U.S. Army Human Resources Command 
* Department of Veterans Affairs (VA) Caregiver Support approval and confirmation letters
* Durable POA
* VA letter verifying the FSM's service-connected disabilities
* medical records
* military orders
* three line of duty (LOD) determinations
* DA Form 638 (Recommendation for Award)
* Certificate of Completion
* letter from the Virginia Community Based Health Care Organization, U.S. Forces Command
* pages 5, 7, and 9 of a TSGLI claim form

CONSIDERATION OF EVIDENCE:

1.  With two periods of prior service, on 19 January 2001 the FSM enlisted in the Pennsylvania Army National Guard.  He held military occupational specialty 11C (Indirect Fire Infantryman) throughout his military service.

2.  On 28 June 2004, he entered active duty in support of Operation Iraqi Freedom.  He served in Iraq from 1 October 2004 to 21 November 2005.  After his return from Iraq, he was retained on active duty to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.  

3.  On 27 May 2008, he was retired for permanent disability and placed on the Temporary Disability Retired List (TDRL).  The orders placing him on the TDRL show he had an 80 percent (%) disability rating at the time.

4.  A DA Form 199 (Physical Evaluation Board Proceedings), dated 13 December 2010, shows he was removed from the TDRL and placed on the Permanent Disability Retired List with a combined rating of 80%.  The form shows three conditions were found to be unfitting:

	a.  chronic post-traumatic stress disorder (PTSD) associated with a post-concussive syndrome and a somatoform disorder manifested by wide-spread pain in major joints to include the right shoulder, right elbow, and right wrist; 

	b.  lumbosacral strain with decreased range of motion and radiographic evidence showing degenerative disc disease; and 

	c.  cervical strain with decreased range of motion, tenderness to palpation, and radiographic studies that showed degenerative disc changes.

5.  On 30 July 2013, the FSM submitted a TSGLI claim.  The claim form indicated his claim was based on TBI incurred on 7 July 2005 in Iraq.  The form indicates he had been hospitalized for TBI, but the dates of his hospitalization were not listed.  The form also indicated he was unable to bathe, dress, toilet, or transfer (e.g., move from a wheelchair to a bed) independently.  The duration of these ADL deficits was not entered.  A certified registered nurse practitioner (CRNP) signed the form and indicated he had observed the FSM's loss.  The CRNP also noted that the FSM was not capable of handling his own affairs.  

6.  On 9 August 2013, the Special Compensations Branch (TSGLI) informed the FSM that his TSGLI application was incomplete.  He was asked to submit supporting documentation noted on a checklist.  Because his application indicated he was not able to handle his own affairs, he was also informed that the individual to whom he had given his POA was required to sign the form.  

7.  On 5 December 2013, the Special Compensations Branch (TSGLI), HRC, informed the FSM that his appeal of a previous disapproval of his TSGLI claim was denied.  The reason for denial was that the medical documentation submitted did not indicate that his TBI rendered him incapable of performing the ADLs of bathing, dressing, eating, toileting, or transferring for 15 consecutive days or longer.  The letter noted that, if a Soldier is able to perform an ADL by use of accommodating equipment or adaptive measures (cane, crutches, wheelchair, etc.), then the Soldier is considered able to independently perform the ADL.  The letter also noted that he had not been a hospitalized inpatient for 15 days or longer.  He was advised he could apply to this Board if he disagreed with the decision.  

8.  The applicant provides several documents in support of her request, including the following:

	a.  Three LOD determinations, dated 9 January, 13 February, and 28 March 2006, show the FSM received favorable determinations for:

* "concussion shoulder, back, head" incurred on 25 September 2005 when the FSM's vehicle was hit by an improvised explosive device (IED)

* PTSD incurred in September 2005
* hearing loss incurred on 7 July 2005 when the FSM's vehicle was hit by an IED

	b.  Medical records show, in pertinent part:

* in May 2006, the FSM was scheduled for surgical repair of cervical spondylosis and a herniated disc (there is no evidence indicating he actually had the surgery)
* on 4 January 2007, he was enrolled in the Partial Hospitalization Program at Walter Reed Army Medical Center in the PTSD track and remained in the program for 6 weeks 

	c.  Page 9 of a TSGLI claim form shows an Army medical professional's signature, dated 14 January 2008.  The medical professional indicated the FSM had memory loss, cognitive changes, and PTSD related to TBI.  He indicated he had observed the FSM's claimed loss.  There is no evidence that this claim form was submitted in 2008.  

	d.  A VA Caregiver Support approval letter, dated 20 July 2011, shows the applicant has been designated as the primary family caregiver for the FSM.

	e.  A VA letter, dated 3 January 2014, verified the FSM has a 100% combined disability rating for the following service-connected disabilities:

* PTSD with depressive disorder
* cervical radiculopathy, right upper extremity
* TBI with headaches
* right shoulder strain with degenerative joint disease
* radiculopathy, right lower extremity
* radiculopathy, left lower extremity
* lumbardorsal strain
* cervical strain with spondylosis
* psuedofolliculitis barbae of the beard area
* xerosis of bilateral lower extremities
* bilateral tinnitus
* erectile dysfunction

9.  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 VA in coordination with the Department of Defense.  As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage.  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 Enduring Freedom and Operation Iraqi Freedom or under orders in a combat zone tax exclusion area are covered regardless of whether or not they elected SGLI coverage.  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.

10.  To be eligible for payment of TSGLI, a covered individual must meet several requirements, which include incurring a scheduled loss that is a direct result of a traumatic injury.  The scheduled loss must have occurred within 2 years of the traumatic injury.  

11.  A member will be considered eligible for a TSGLI benefit for inability to perform ADLs due to TBI if the member is unable to independently perform at least two of six ADLs for at least 15 consecutive days or is hospitalized for 15 consecutive days.  Hospitalization for PTSD is not listed among the scheduled losses.  The member is considered to unable to perform an ADL independently if he or she requires assistance to perform the activity.  "Requires assistance" is defined as:

* physical assistance – when a member requires hands-on assistance from another person
* stand-by assistance – when a member requires someone to be within arm's reach because the member's ability fluctuates and physical or verbal assistance may be needed
* verbal assistance – when a member requires verbal instruction in order to complete the ADL due to cognitive impairment

If the patient is able to perform the activity by using accommodating equipment (cane, walker, commode, etc.), the patient is considered able to independently perform the activity.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM received a concussion in September 2005 while deployed in Iraq.  In order to be eligible for payment of TSGLI, he would have had to incur a scheduled loss directly resulting from his traumatic injury within 2 years of that injury.  

2.  The applicant states the FSM was hospitalized for more than 15 days.  The record shows he was partially hospitalized to participate in a PTSD program.  Although the hospitalization took place within 2 years of his traumatic injury, this is not a scheduled loss for which he can receive TSGLI.  

3.  The applicant states the FSM requires assistance with multiple ADLs.  Unfortunately, there is no evidence indicating that he required such assistance for a period of at least 15 days within 2 years of his traumatic injury in September 2005.  

4.  The available evidence indicates the Special Compensations Branch (TSGLI) properly denied payment in accordance with the applicable law and regulations.  In the absence of evidence showing the FSM suffered a scheduled loss within 2 years of his traumatic injury, there is no basis for payment of TSGLI.  

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)                                         AR20140004086





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ABCMR Record of Proceedings (cont)                                         AR20140004086



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