IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140012408 


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 applicant received $25,000.00 for his hospitalization and 30-day loss of activities of daily living (ADL), however the preponderance of evidence shows the applicant meets the criteria for the loss of at least two ADL for a period of 120 days or a Limb Salvage, all resulting from a fall on 24 January 2009.

	b.  The applicant's claims were arbitrarily denied without explanation, reasoning, or contrary evidence beyond a summary statement.

	c.  Counsel essentially asserts the following:

* the applicant was involved in an significant accident, on 24 January 2009, while deployed in Iraq
* he was rigging equipment to a beam when the beam swung, striking him and knocking him to the ground; he fell 10 feet
* he was hospitalized in Landstuhl, Germany for a closed left tibia fracture with compartment syndrome and fibula fracture with extension to the ankle
* he was eventually sent back to Fort Stewart, GA where he received further treatment
* he underwent manipulative treatments but his symptoms significantly affected him on a daily basis

	d.  Counsel continues:

* the applicant was unable to bathe, dress, use the toilet, and transfer independently from 24 January 2009 to 30 September 2009 (a period of over 120 days)
* medical records show increasing numbness in his foot, difficulty with basic ADL, inability to bear weight, difficulty walking, and persistent pain
* since the accident, the applicant has had six surgeries
* TSGLI defines Limb Salvage as a series of operations designed to avoid amputation of a limb; his medical records reflect lower extremity reconstructions, bone grafting, and state the applicant has a prosthetic device to assist with his left lower leg

	e.  Counsel argues, in effect:

* a material error or injustice occurred in the applicant's case
* his claim was arbitrarily denied despite the fact a medical professional affirmed, in Part B of the TSGLI application, the applicant met the criteria for ADL coverage
* the basis for claim denial was the addition of a criterion negating ADL coverage where there can be adaptive behavior to accomplish an activity
* in denying the applicant's claim, the Army did not provide Loss Codes which would adequately advise the applicant the reason for denial
* the applicant's claim merits his receipt of the maximum amount of $100,000.00

	f.  Counsel further argues, in essence:

* case law identifies an agency action as arbitrary and capricious when the agency has relied on factors which Congress did not intend to be considered, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence or is so implausible it cannot be ascribed to a difference in view or the product of agency expertise
* the applicant's injuries and ADL losses are well-documented and supported by undisputed medical evidence
* his medical records show he required stand-by assistance and physical help with bathing, dressing, toileting assistance, and help transferring for a period of 120 days
* Orthopedic Physician Assistant Jxxx Bxxxxxx contributed to and reviewed the applicant's medical records, certifying the applicant's inability to perform at least two ADLs for over 120 consecutive days
* the applicant's mother provided a written statement confirming she and her husband assisted the applicant with bathing, dressing, transferring and toileting
* his medical records show a follow-up visit to Tripler Army Medical Center (TAMC) on 30 March 2009 [sic, actually was 30 April 2009], over 90 days [correct if using 30 April 2009 date] after the accident, wherein he is described with ADL losses of "non-weight bearing and needs assistance with range of motion of knee and ankle"
* on 22 June 2009, marking over 120 days of ADL loss, his radiological report impression was a stable tibia and fibula fractures without hardware complication
* the applicant had his sixth surgery on 11 August 2009 and was having difficulty with basic ADL tasks
* on 24 August 2009, the applicant was provided a treatment plan by the orthopedic clinic which had him bear full weight as tolerated
* on 28 September 2009, x-rays shows his tibia and fibular fractures are healing without evidence of hardware complication 

	g.  Counsel contends, in effect, the preponderance of the evidence in the applicant's medical records show limb salvage.

* he underwent hospitalization
* had multiple surgeries
* underwent occupational and physical therapy

	h.  The applicant's surgeries entailed:

* four compartment fasciotomies (surgical procedure cutting the fascia (connective band of fibrous tissue) to relieve tension) and the application of an external fixator (metal pin)
* irrigation debridement (removal of nonliving tissue) of fasciotomy, Stryker nail placed in the left tibia and open reduction internal fixation of the posterior malleolus ankle and fibula fractures
* left leg incision and debridement
* left leg incision and debridement with skin grafting
* removal and replacement of an intramedullary nail with bone grafting
* exchange and placement of Stryker nails and interlocking screws
* the applicant is currently having a prosthetic made for his lower extremity

	i.  Based upon the foregoing, counsel requests favorable consideration of the applicant's request to reinstate his TSGLI claim for at least $75,000.00 due to the loss of two or more ADL for 120 days.

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

* TSGLI claim procedural history
* TSGLI application
* denial letters
* letters of support
* medical timeline
* medical records

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 May 1990.  After completing initial training he was awarded military occupational specialty 19D (Cavalry Scout).  He served a various positions, including one assignment as a First Sergeant for a deployed Armored Reconnaissance Troop.  He deployed to Iraq on three occasions.  He retired on 31 May 2012 and was placed on the Retired List.  He completed 22 years and 1 month of total service for retired pay.

2.  On 24 January 2009, the applicant was deployed in Iraq as part of the 25th Infantry Division.  He was attempting to rig equipment to a beam when the beam swung around, striking him and causing him to fall 10 feet.  He landed in such a way as to cause closed fractures in his left tibia, fibula, and ankle.  He was medically evacuated to Landstuhl Regional Medical Center (LRMC), Landstuhl, Germany where emergency surgery was performed.  The applicant's medical record is void of any mention of possible amputation of the left leg as a course of treatment.  Nor is there any indication the applicant specifically chose limb salvage rather than to have his leg amputated.  The surgeries performed were:

	a.  On 26 January 2009, a surgical team performed four compartment fasciotomies and applied external fixators.  The operation report describes pressure in the applicant's left leg resulting from internal bleeding near the broken bones.  The fasciotomies exposed the leg muscles, relieved the pressure, and allowed the surgical team to stem the bleeding.  Metal nails and screws were applied to the broken bones to stabilize them and facilitate healing.  No mention was made of any consideration of amputation as a potential alternative treatment.

	b.  On 30 January 2009, a surgical team performed an irrigation and debridement of the previous fasciotomies, placed a Stryker T-2 nail on left tibia, and conducted an open reduction internal fixation of the ankle and fibula.  The operation report describes the wounds created by the fasciotomies being irrigated, cleaned, and examined for bleeding.  No bleeding was found.  The broken ankle and fibula were then exposed and realigned (open reduction).  Once aligned, metal nails and screws were placed (internal fixation) to facilitate healing.

	c.  On 2 February 2009, a surgical team performed another irrigation and debridement of the previous fasciotomies, exchanged interlocking screws, and closed of one of the wounds left by the fasciotomies.  The operation report describes, after irrigating and cleaning the wounds, the team found one of the fasciotomies could be sutured and closed.  Another was not yet ready to be closed.  They also found one of the interlocking screws was too long and therefore replaced it with a shorter screw.

3.  The applicant was sent to the Winn Army Community Hospital (WACH), Fort Stewart, GA for further treatment and surgeries.

	a.  On 5 February 2009, a surgical team examined and cleaned the wounds created by the fasciotomies.  Dead tissue was removed.  The muscle was found to be viable.  An attempt was made to close the remaining wound, but, upon finding significant swelling, the wound was left open.

	b.  On 8 February 2009, a surgical team examined, irrigated, and cleaned the wounds created by the fasciotomies.  They then harvested tissue from the applicant's thigh and grafted the tissue to the open wound.

	c.  On 20 February 2009, the applicant was seen for physical therapy.  The notes indicate he had moderate pain and had difficulty moving on his bed and ambulating.  It also states he was going to his parent's home in Jacksonville, FL while on convalescent leave.  It did not specifically identify the dates of his convalescent leave.

	d.  On 13 April 2009 (80 days after the injury), the applicant was seen in the Orthopedic Clinic.  The physician notes the incisions were well-healed and that there was reduced swelling compared to the applicant's previous visit.  She stated there was a possibility further surgery might be required because of delayed union of the bones.  The applicant was released with work/duty limitations, was allowed to apply partial weight-bearing (PWB) to his leg, and instructed to continue use of a walker.  She noted the applicant was to return to his home duty station in Hawaii at the conclusion of his convalescent leave.  No assessment as to any limitations in ADL is mentioned.

4.  In late April 2009 he returned his unit's rear detachment in Hawaii.  He received follow-up care at the Tripler Army Medical Center (TAMC).  

	a.  On 30 April 2009, the applicant was seen in the Orthopedic Cast Room.  It states the applicant was non-weight-bearing and required further evaluation.  On the same record, there is an entry dated 4 May 2009 which notes nonunion of the fractured fibula.  The disposition shown is the release of the applicant without limitations.  No assessment as to any limitations in ADL is mentioned.

	b.  On 18 May 2009, the applicant was seen in the Orthopedic Clinic.  The notes say the applicant is PWB and continued PWB is prescribed.  Additionally, it states further revision/bone grafting surgery may be required.  No assessment as to any limitations in ADL is mentioned.

	c.  On 24 June 2009, the applicant went to the emergency room at TAMC for treatment of acute shoulder pain.  The medical record shows the applicant was unaccompanied and drove himself to the emergency room.  Following treatment, he drove himself home.

	d.  On 28 June 2009, the applicant went to the emergency room at TAMC for an injury to his left third toe.  The medical record shows the applicant dropped a plate on his toe.  Following treatment, he is discharged.  He is noted as being ambulatory.  He was driven home by a companion.

	e.  On 6 August 2009, the applicant had a pre-operative appointment in preparation for surgery which was to replace the tibial nail and include bone grafting.  The assessment states the applicant was using a cane.

	f.  On 11 August 2009, surgery was performed to correct the tibial nonunion.  The metal nails and screws holding the bone were removed and replaced.  

	g.  On 12 August 2009, the applicant received an inpatient physical therapy initial evaluation.  In the evaluation it is noted the applicant lives alone in an apartment.  Under the heading "Prior Level of Function" it shows ambulation: independent with a single point cane (SPC).  For "ADLs" it shows "independent."  Under the heading "Assessment/Physical Therapy Diagnosis" it states response to treatment: tolerated treatment well, independent with all mobility.  Under the heading "Plan" it stated the applicant was to be fitted for axillary crutches.

	h.  Also on 12 August 2009, the applicant received an occupational therapy assessment.  In this assessment it noted the applicant was using crutches and states "the patient is safe from an ADL standpoint for discharge to home."

	i.  On 24 August 2009, the applicant had a follow-up evaluation at the Orthopedic Clinic.  In the record it states the applicant was cleared for full weight-bearing.

	j.  On 28 September 2009, in a follow-up appointment with the Orthopedic Clinic, the physician stated the applicant had pain, but was doing very well.  He was to return to duty.

5.  In July 2010 the applicant had a permanent change of station from Hawaii to Fort Hood, TX.  While at Fort Hood he received follow-up care at the Carl R. Darnall Army Medical Center (CRDAMC) and the 59th Medical Wing at Joint Base San Antonio, TX.  The Orthopedic Physician's Assistant who completed Part B of the TSGLI application was assigned to CRDAMC.

6.  On 16 May 2011, the U.S. Army Human Resources Command (HRC) received the applicant's first application for TSGLI.  This application was approved for $25,000.00 based upon the loss of ADL for 30 days.  

7.  His second application, which was for limb salvage, was received on 29 February 2012 and this application was not approved.  The basis for disapproval was the lack of documentation, certified by a surgeon, which showed the applicant was in danger of losing his leg. 

8.  Counsel requested reconsideration of this second application and, on 14 March 2013, this request was denied.  The basis, again, was the lack of documentation, certified by a surgeon, which would show the applicant was in danger of losing his leg.

9.  Counsel appealed and, on 11 September 2013, HRC notified counsel the appeal was disapproved.  

	a.  The notification stated the medical documents submitted did not show the applicant was incapable of performing the ADLs of toileting, dressing, bathing, or transferring for more than 60 days.  

	b.  Additionally, the documentation did not meet the TSGLI standard to support payment for limb salvage.  To meet this standard, it would have to have been shown the applicant was offered amputation in lieu of other treatments, and that the series of operations performed were designed to avoid amputation while simultaneously maximizing the limb's functionality.

10.  Counsel provides a letter of support from the applicant's mother which essentially states:

* she and her husband cared for her son (the applicant) following his release from the hospital at Fort Stewart
* he required a great deal of help to function daily for about seven months
* he required complete bed rest for the first 2 1/2 months and he was only taken out of bed for medical appointments
* he required assistance with bathing, dressing, getting out of bed, use of the bathroom, and for meals and medication
* after his last surgery in August 2009, he was allowed to walk with the use of a cane
* he has never fully healed and medical evaluation board doctors placed him on the disabled list
* he still does not have complete feeling in parts of his lower leg, has constant swelling, and almost no rotation of his left ankle
* he walks with the assistance of a carbon fiber outer prosthetic

11.  Counsel provides an updated copy of the applicant's TSGLI application.  In Part B, it shows certification, dated 13 May 2011, by Orthopedic Physician's Assistant Jxxx Bxxxxxx of the Orthopedic Clinic of CRDAMC.  Shown are the following:

* salvage of left leg with a date of first surgery shown as 26 January 2009
* unable to bathe independently from 24 January 2009 to 30 September 2009; physical assistance and stand-by assistance were required
* inability to dress independently from 24 January 2009 to 11 September 2009; physical assistance and stand-by assistance were required
* unable to toilet independently from 24 January 2009 to 11 September 2009; physical assistance and stand-by assistance were required
* unable to transfer independently from 24 January 2009 to 30 September 2009; physical assistance and stand-by assistance were required

12.  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.  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. 

13.  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.

14.  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 two of the six ADLs for 30 days or more.  

	a.  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.  

	b.  While TSGLI claims won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  

	c.  If the applicant is able to perform an activity by using accommodating equipment, such as a cane, walker, or commode, he or she is considered able to independently perform the activity.

	d.  Payments for loss of at least two ADL are as follows:

* $25,000.00 at the 30th consecutive day of ADL loss
* $50,000.00 at the 60th consecutive day of ADL loss
* $75,000.00 at the 90th consecutive day of ADL loss
* $100,000.00 at the 120th consecutive day of ADL loss

15.  Under the TSGLI Loss Standards, Limb Salvage is defined as when a member opts to save a limb rather than have the limb amputated.  A member meets the standard when he or she undergoes a series of operations designed to save a leg rather than amputate, the option of amputation was offered to the member as a medically justified alternative to limb salvage, and the member chose to pursue limb salvage.

DISCUSSION AND CONCLUSIONS:

1.  Counsel acknowledges the applicant received $25,000.00 in TSGLI compensation for the 30-day loss of ADL.  He contends, however, the applicant's TSGLI claim should be reconsidered for more compensation because:

* he experienced the loss of at least two ADLs for a consecutive 120-day period [between 24 January 2009 (the date of the accident) and 30 September 2009]
* the ADLs specifically named are the inability to bathe, dress, use the toilet, and transfer independently
* this loss qualifies the applicant to receive a minimum TSGLI benefit of $75,000.00

2.  As to limb salvage, TSGLI Loss Standards require an eligible applicant to have been facing amputation as a medically justified alternative treatment, chosen to salvage his or her limb instead, and then undergone a series of operations to save the limb.  While the evidence clearly shows the applicant required multiple surgeries to repair the closed fractures of his left tibia, fibula, and ankle, there is no evidence that amputation was ever considered.  

3.  Regarding the loss of ADL, there is evidence in the applicant's medical record which supports the loss of ADL for at least a 30-day period.  Additionally, counsel offers evidence which he contends verifies the loss of ADL for as much as 120 days.

	a.  The applicant's mother states the applicant required extensive assistance while he stayed with her.  

	b.  In Part B of the TSGLI application, Orthopedic Physician's Assistant Jxxx Bxxxxxx states the ADL loss extended for at least 231 days for the inability to bathe, dress, toilet, or transfer.

4.  ADL loss standards, however, require not only the certification by a healthcare provider in Part B of the claim form, but also substantiating documentation in the form of Occupational/Physical Therapy Reports, Patient Discharge Summaries, or other pertinent documents which demonstrate the injury type and duration of ADL loss.  An examination of the applicant's medical records show the following:
* between 20 February 2009 and 13 April 2009, there are no entries addressing the loss of ADL or supporting the loss of the ADL identified by counsel
* on 13 April 2009, the physician at the Orthopedic Clinic, WACH notes the applicant should continue to use a walker, suggesting the applicant was ambulatory using accommodating equipment
* on 30 April 2009 an evaluation by the Orthopedic Clinic at TAMC states the applicant is non-weight-bearing; however the physician prescribes PWB and an entry on the same record, dated 4 May 2009, shows the applicant as being discharged with no limitations
* on 18 May 2009, notes from the Orthopedic Clinic at TAMC show the applicant as being PWB
* on 24 June 2009, his records show he drove himself to and from the TAMC emergency room where he sought treatment for acute shoulder pain; suggesting no loss of ADL
* on 6 August 2009, the applicant is shown as using a cane (accommodating equipment) when attending a pre-operative appointment
* on 12 August 2009, a physical therapy inpatient initial evaluation states the applicant is independent using an SPC, and ADL are shown as independent; he is fitted with crutches following surgery
* on 24 August 2009, the physician in the TAMC Orthopedic Clinic clears the applicant for full weight-bearing as tolerated

5.  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.

6.  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.



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ABCMR Record of Proceedings (cont)                                         AR20140012408



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