IN THE CASE OF:  	  

		BOARD DATE:  24 March 2015	  

		DOCKET NUMBER:  AR20140012855 


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 approval of his Traumatic Servicemember’s Group Life Insurance (TSGLI) injury request.

2.  The applicant states, in effect, that his denial for additional TSGLI benefits is unjust and believes that the adjudicating board members do not understand the effect that is spinal fusion surgery has had on his activities of daily living (ADL).  He had difficulty receiving his first $25K claim, which was eventually approved after his primary care physician provided him with a letter to verify his claim.  However, since he had spinal fusion surgery he had been unable to perform his ADLs without assistance for well over 90 days but his claims for additional benefits have been denied because the officials at the U.S. Army Human Resources Command continually denies his request for additional benefits contending that there is insufficient evidence to show that he was incapable of performing at least two of the six basic ADLs for 60 days or greater.  He has sent all of the documents he has, in addition to letters from his doctors and providers to no avail.   

3.  The applicant provides copies of his denial letters, letters from his providers, and copies of his applications for TSGLI. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the U.S. Army Reserve as a watercraft engineer in the rank of Sergeant First Class, E-7 when he was ordered to active duty on 29 June 2011.  He deployed to Kuwait on 31 January 2011 for duty on the Logistics Support Vehicle MG Smalls.

2.  On 9 August 2011, he fell backwards into an open hold door and sustained a back injury.  He departed Kuwait on 31 August 2011 and was transferred to the Walter Reed National Military Medical Center.

3.  The applicant submitted his first claim for TSGLI benefits on 5 December 2011 and his request was denied on 18 January 2012.  He appealed on 13 February 2012 and that request was denied on 14 March 2012.  He again appealed on 23 May 2014 and his request was approved in the amount of $25K for 15 days of hospitalization on 1 June 2012.

4.  On 15 September 2012, the applicant underwent a minimally invasive lumbar interbody fusion of L3-4 without complications. 

5.  On 30 January 2013, the applicant filed his second claim for TSGLI benefits claiming the loss of four ADLs for 120 days.  His claim was denied on 7 March 2013 because he had failed to show the loss of two or more ADLs for 60 days or more.  He appealed that decision on 19 April 2013 and that appeal was denied on 24 June 2013 because the documents he submitted did not indicate that he met the TSGLI standards for loss of ADLs.  He again appealed the decision on 8 October 2014 and it was again denied on 10 January 2014.

6.  The last denial letter informed the applicant that no further appeals would be considered and he could appeal to this Board.  A review of the physician’s write-up of his last appeals indicates that there was nothing in the evidence presented suggesting a significant sustained impairment of ADLs that could not be overcome by adopting adaptive behaviors to accomplish all activities of daily living in a modified independent manner within a period of 30 days.  Additionally, documents dated 46 days after injury state that the service member was independent or modified independent in all basic ADLs.  Documents dated 36 days after surgery indicate that the service member was ambulatory with cane and back brace (slow, steady gait) accompanied by NMA (non-medical attendant).  The 4 member panel, which included the command surgeon, voted unanimously to deny his request for 60 days of ADL.

7.  Meanwhile, on 9 January 2014, a formal physical evaluation board was convened in Washington D.C. which determined that the applicant’s unfitting conditions of post-traumatic stress disorder, lumbar spine, and right hip degeneration warranted a 90% combined disability rating and recommended that he be placed on the Temporary Disability Retired List (TDRL).

8.  On 30 October 2014, he was placed on the TDRL due to disability, temporary (enhanced).

9.  On 29 January 2015, he was issued his 20-Year Letter.  

10.  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.  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.  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 (Active, Reserve, or National Guard) or the location in which they incurred the injury, will be covered by TSGLI.

11.  There are specific circumstances under which a traumatic injury will not be covered by TSGLI.  A qualifying traumatic injury is an injury or loss caused by application of external force or violence (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:

	a.  total and permanent loss of sight in one or both eyes;

	b.  loss of hand or foot by severance at or above the wrist or ankle;

	c.  total and permanent loss of hearing in one or both ears;

	d.  loss of speech;

	e.  loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints;
	f.  quadriplegia, paraplegia, or hemiplegia;

	g.  3rd degree or worse burns covering 30 percent of body or 30 percent of the face;

	h.  coma or traumatic brain injury; or

	i.  other traumatic injuries resulting in the inability to carry out two of the six ADLs, which 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 (15 days or more in the case of traumatic brain injuries).  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.

12.  The TSGLI Schedule of Losses also provides for a TSGLI payment of $25,000 for a traumatic injury resulting in inability to perform at least two ADLs for 30 consecutive days.  An additional payment of $25,000 may be made for 60 consecutive days of ADL loss, 90 consecutive days of ADL loss, and 120 consecutive days of ADL loss. 

 DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is qualified for additional TSGLI benefits was carefully considered.

2.  Records clearly show he sustained an injury to his back during a fall on board a ship in August 2011.  They also show he received his first TSGLI payments of $25K for 15 days of hospitalization and that he underwent surgery for his injury.  However, it does not appear that his injury qualifies for additional TSGLI benefits without sufficient evidence to show a loss of ADLs for 60 days or more.

3.  After reviewing the summary of the applicant’s case, it appears that the applicant has not provided sufficient evidence showing he was unable to perform at least two of the ADLs for the required period.
4.  Absent evidence to show that the applicant's disabilities met the criteria for award of additional TSGLI benefits, there is no basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20140012855





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ABCMR Record of Proceedings (cont)                                         AR20140012855



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