BOARD DATE:	  14 January 2015

		DOCKET NUMBER:  AR20140009491 


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 his request and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim.

2.  Counsel states, in effect:

	a.  the preponderance of evidence shows the applicant meets the criteria for at least a 90 day loss of not less than two activities of daily living (ADL) as a result of a 10 May 2008 car accident;

	b.  this 90 day loss of at least two ADL [inability to dress and transfer independently] qualifies the applicant to receive $75,000 in TSGLI benefits; and

	c.  the denials of the initial claim and each request for reconsideration were arbitrary and capricious.  Counsel bases this conclusion on the following:

* no substantive rationale explaining why the evidence presented by counsel failed to meet TSGLI criteria was ever provided
* in denying of the applicant's claim, the Army added a criterion negating ADL coverage where adaptive behavior can be performed to accomplish the ADL, even though there is no mention of this as a criterion in the TSGLI manual
* loss codes were not provided to advise the applicant the reason why his claim was denied 

3.  Counsel provides a compact disc (CD) with the following:

* TSGLI Claim Procedural History
* TSGI Application (Servicemember's Group Life V (SGLV) Form 8600 (TSGLI Claim Form))
* three TSGLI Denial Letters
* one letter of support and a doctor's certification
* medical timeline
* 444 pages of medical records and supporting evidence
* seven photos

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR), on 25 January 2006.  Upon completion of one station unit training he was awarded military occupational specialty 31B (Military Police).  

2.  On 10 May 2008, he was in a high speed head-on motor vehicle collision from which he sustained numerous injuries, to include a right ankle fracture.  He had surgery to repair the fractured ankle and he was released the next day.  At the time of his release, he was ambulatory with crutches and was able to negotiate stairs.  Upon his release from the hospitals instructions included keeping the right leg elevated, placing ice on his right ankle, and not putting any weight on his right ankle.

3.  The applicant's SGLV Form 8600, TSGLI Claim application, is available, though not with any supporting documentation.  On or about 5 December 2011, he submitted his TSGLI claim application based on the loss of three ADLs (unable to dress independently, unable to toilet independently, and unable to transfer independently).  On 5 March 2012, Prudential Insurance Company notified the applicant his claim was denied by the Army because it did not meet the standards for TSGLI.

4.  A request for reconsideration was filed, and, on 13 March 2012, this request was denied by the U.S. Army Human Resources Command (HRC).  The reason stated was the documentation provided did not indicate the applicant was incapable of performing at least two ADLs for 30 consecutive days.


5.  An appeal of the reconsideration decision was filed with HRC and it was denied on 18 October 2013.  The reason given was the medical documentation submitted did not indicate the applicant's ankle injury rendered him incapable of performing the ADL of bathing, dressing, toileting, or transferring for a consecutive 30-day period.

6.  The medical documents provided by counsel include four follow-up examinations with the applicant after the applicant's surgery:

	a.  On 21 May 2008 [11 days after surgery] the doctor who performed the surgery wrote that sutures were removed, X-rays showed the ankle was healing, and the applicant was to continue not putting weight on his ankle.

	b.  On 18 June 2008 [39 days after surgery] the nurse practitioner for the applicant's surgeon stated, while he had recommended no weight-bearing on the ankle, the applicant said he had been applying full weight while standing, though he had mostly been walking without putting weight on his ankle.  The doctor cautioned the applicant not to put weight on the ankle for three more weeks as he ran the risk of breaking the screws holding the bone in place.

	c.  On 16 July 2008 [67 days after surgery] the applicant's surgeon stated the applicant had progressed to 30 percent weight-bearing on his right ankle.  The doctor recommended he begin to bear weight on his right ankle while wearing a fracture boot.

	d.  On 15 August 2008 [97 days after surgery] the nurse practitioner for the applicant's surgeon stated the applicant was fully weight-bearing on his right ankle without the assistance of the fracture boot.  The applicant had full range of motion with his right ankle.  He recommended the applicant increase his activities and employ use of a lace-up brace.  He should avoid any impact activities.

	e.  The applicant missed his appointment with his doctor on 17 September 2008.

7.  Counsel provides a letter of support from the applicant's stepmother.  It essentially states:

* the applicant required her care for 4 months following the accident
* he was bedridden for the first 30 days, but required her assistance with daily tasks for about 130 days
* in the first 30 days, he needed her help to dress, use the bathroom, and shower; the applicant was completely dependent on her and could not be left alone
* the applicant needed help when transferring from bed to a chair and when he ate his meals
* he had strict instructions from his doctor to keep his leg elevated and not put any weight on his right ankle; and this continued until October 2008

8.  Counsel provides the Part B (Medical Professional's Statement), submitted as part of the applicant's TSGLI claim, where Doctor Hxxxxxx provides an assessment of the applicant's condition based upon a review of his medical records.  The form was signed on 25 November 2011.  Doctor Hxxxxxx essentially states:

	a.  The predominant reason the applicant was unable to independently perform ADLs were due to other traumatic injury:

* he was in a motor vehicle accident and treated for a closed head injury, multiple contusions, and comminuted closed fractures in his right ankle
* he received surgery to repair the fractured ankle
* he failed post-operative treatment with braces and a fracture boot; requiring further surgery on 4 September 2009

	b.  The applicant was unable to bath independently between 10 May and
10 August 2008.  He required physical and standby assistance to bathe, to get to a tub transfer bench, and to get dressed.

	c.  He was unable to dress independently between 10 May and 10 August 2008.  He required physical and standby assistance to put on his pants due to poor balance.

	d.  He was unable to toilet independently between 10 May 2008 to 10 August 2008.  He required physical and standby assistance to sit, stand, and balance while not putting weight on his right ankle.

	e.  He was unable to transfer independently between 10 May and 10 August 2008.  He required physical and standby assistance to transfer to and from the bed, chair, or car.  He displayed a decreased gait, balance, and strength.

	f.  He underwent surgery again on 4 September 2009:

* they found an abscess formation of the right ankle, a foreign body in the right ankle, and synovitis [inflammation of the membrane that lines the joints]
* he had continued pain and a decrease in range of motion
* he required surgery again on 29 and 30 December 2009 to resurface and graft the bone
* an external fixator was placed on his ankle and he was not able bear weight until its removal on 22 February 2010
* he continued to have ADL limitations
* medical disqualification paperwork was initiated on 8 June 2011 and finalized on 19 April 2011

9.  The available record, to include the medical documentation provided by counsel, is void of any documentation of physical therapy treatments the applicant may have received between 10 May and 10 August 2010.

10.  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 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense (DOD).  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 taken out each month to cover the cost of the TSGLI policy. 

11.  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-phalangeal joints, quadriplegia, paraplegia or hemiplegic, third (3rd) degree or worse burns covering 30 percent of body or 30 percent of the face, and coma or traumatic brain injury.

12.  There are six ADLs:  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 at least 2 of the 6 ADLs for 30 days or more.  ADL loss must be certified by a healthcare provider in Part B of the claim form, and must also include substantiating 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 won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends, in effect, the applicant's TSGLI claim should be reconsidered because he experienced the loss of three ADLs for a consecutive 
90-day period [between 10 May 2010 (the date of the accident) and 10 August 2010].  This loss qualifies the applicant to receive the $75,000 TSGLI benefit.

2.  The evidence clearly shows the applicant sustained a broken right ankle which required surgery to repair.

3.  There is evidence showing the applicant initially applied for TSGLI benefits in 2011 and his claim was reconsidered in 2012 and appealed in 2013.  His requests were denied because he failed to provide adequate medical documentation showing his injury resulted in a qualifying loss or the inability to carry out at least two of the six ADLs.

4.  Counsel provides Part B of the TSGLI claim form signed by a Doctor Hxxxxxx.  The form is dated 25 November 2011 and states the applicant's inability to perform ADLs began on 10 May 2010 and ended on 10 August 2010.  The doctor states the applicant needed assistance undressing and dressing, getting to and from the toilet, getting on and off the toilet, and transferring to and from the bed, chair, or car.  The doctor indicates that he did not observe the applicant's loss, but his findings are based on a review of the applicant's medical records.

5.  However, a review of the applicant's medical records fails to show he was completely incapable of performing at least two of his ADLs for 30 consecutive days as a result of his broken right ankle.  Rather, the medical documentation shows:

	a.  On the day of his release from the hospital following surgery, the applicant was ambulatory by the use of crutches.  He was noted as having used stairs with his crutches.



	b.  In the four follow-up visits with his surgeon, the applicant did not appear to be unable to perform ADLs.  

* during the 18 June 2010 visit [39 days after surgery], the applicant told the nurse practitioner he had been putting his full weight on his right ankle, though he was mostly walking without putting weight on the ankle
* by the next visit with his surgeon, 67 days after the surgery, the applicant's surgeon stated the applicant had progressed to 30 percent weight-bearing on his right ankle; the doctor recommended the patient begin to bear weight on his right ankle while wearing a fracture boot
* by 97 days after his surgery, the nurse practitioner for the applicant's surgeon stated the applicant was fully weight-bearing on his right ankle without the assistance of the fracture boot; the nurse practitioner recommended the applicant increase his activities and employ use of a lace-up brace

6.  Neither the applicant nor his counsel has provided sufficient documentation to support their contention that his TSGLI claims were improperly denied.  Neither the available records nor the medical documentation counsel provided establishes a basis to support this request.

7.  In view of the foregoing, this request should be denied. 

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)                                         AR20140009491



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140009491



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1