BOARD DATE:	 31 March 2015 

		DOCKET NUMBER:  AR20140013339 


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 his claim fits the legal requirements for a TSGLI award; however, the Army TSGLI program office denied his appeal on 12 August 2013.

   a.  He states that his traumatic injury occurred on 15 May 2010 when his squad leader severely injured him during weekend drill/training at Fort McCoy WI.  While he was lying prone, the squad leader grabbed him by the helmet, resulting in a C5-C6 neck injury consisting of C5-C6 disc herniation with right foraminal stenosis, central canal stenosis, and mild C6 radiculopathy.

   b.  As a result of the injury, his right arm no longer experiences any sensation and he suffers from loss of motion (parallelization).  He requires another person to help him with bathing, dressing, and feeding.  He adds that Mr. M____ L. W____, who has been living with him since his injury, has detailed how he assists him with Activities of Daily Living (ADL).

   c.  His medical records from at least six doctors and nine hospitals support his claim that he cannot perform at least two ADLs.

    	(1)  On 16 August 2010, the applicant was examined by his primary care doctor (Dr. D____ R. S____) who documented limitations in range of motion and extension, muscle tenderness and loss of muscle mass, and diminished strength.  On 5 October 2010, the doctor issued a statement that the applicant was unable to work during the period 16 May 2010 to 30 November 2010.

    	(2)  In September 2010, Colonel (COL) K____ M____ noted that the applicant had persistent right arm and neck pain with "severe limitation to the extremity motion."

    	(3)  On 30 June 2011, Dr. N____ P. Y____, Neurologist, observed that the applicant lacked feeling and movement in his right arm.

    	(4)  On 7 July 2011, Dr. M____ M. K____ provided further support of the applicant's inability to perform two or more ADLs.  He noted the applicant could not feel anything below his right shoulder and that he suffered from total loss of all motor and sensory functions below the right shoulder.  Magnetic Resonance Imaging (MRI) confirmed the severity of his injuries.

    	(5)  On 14 July 2011, Dr. C____ K____, Radiologist, verified the extent of his injury.  Doctors at the Department of Veterans Affairs (VA) also noted the extent of his injury.

    	(6)  On 3 August 2011, First Lieutenant N____ S____ and Dr. (COL) J____ B____ documented the applicant's functional limitations.  They noted he could not perform "any fine manipulation, grasping, lifting/lowering/carrying, pushing/pulling, reaching (above shoulder), or weight-bearing, running, standing, or walking/marching at own pace and distance."  Thus, "reclassification or separation may be required."

    	(7)  On 3 August 2011, he was issued a permanent profile.

    	(8)  On 19 September 2011, Dr. D____ J. S____ noted the applicant's inability to perform at least two ADLs for over 120 consecutive days (back-dated to 15 May 2010).  The doctor certified that the applicant needed assistance with bathing, dressing, and eating.

    	(9)  On 6 October 2011, Dr. G____ D____ examined the applicant and concluded that the injury severely limited his ability to use his right arm.

    	(10)  On 14 October 2011, a physical therapist noted the applicant's limited range of motion and weakness of his right hand.  He could grip up to 
46 kilograms with his left hand, but he only had "trade finger flexion" on the right hand.  He scored 82 percent on the Vernon-Meyer Cervical Spine Questionnaire (100% being the worst).

   d.  His TSGLI claim was denied on 12 August 2013 because his loss did not meet the standard for TSGLI.  Specifically, his inability to perform two more ADLs for at least 30 days required certification by a medical professional.

   e.  He states that his injury qualifies as a traumatic injury because it resulted from the application of the external force of a sergeant violently pulling on his helmet.  In addition, one doctor has certified his inability to perform the ADLs of bathing, dressing, and eating without assistance, and several other doctors support this certification.

   f.  He notes he was awarded Social Security Disability Insurance based on his inability to perform ADLS or work and the VA has granted him service connection for his disabilities with a total rating of 100%.

   g.  He concludes that his injuries qualify him for TSGLI benefits in the amount of $100,000 and he respectfully requests the Board overturn the previous denial by the TSGLI program office.
 
3.  The applicant provides supporting documents that he lists as enclosures 
R1 – R34 with notations identifying/explaining the significance of each document.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) of the United States (ARNGUS) and Minnesota ARNG (MNARNG) on 9 October 2008 for a period of 8 years.

2.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty for training (ADT) on 5 January 2010, honorably released from ADT on 23 April 2010, and transferred to the MNARNG. He completed 3 months and 19 days of net active service this period.  It shows he was awarded military occupational specialty 11B (Infantryman).

3.  A DA Form 3349 (Physical Profile), dated 23 April 2012, shows the applicant was issued a permanent profile for a cervical spine herniated disc with right arm nerve damage and major depression.  It shows in item 8 (Functional Limitations and Capabilities and Other Comments):  "Running, Standing, or Walking/ Marching at own pace and distance.  No Fine Manipulation with Right Hand.  No Reaching (above shoulder) with Right Shoulder or Reaching (above shoulder) with Right Arm.  No Lifting/Lowering/Carrying with Right Shoulder; Lifting/ Lowering/Carrying with Right Arm; or Lifting/Lowering/Carrying with Right Hand for more than 10 pounds."

4.  On 10 September 2012, a Medical Evaluation Board (MEB) convened at Eisenhower Army Medical Center, Fort Gordon, GA.

   a.  The MEB referred the applicant to a Physical Evaluation Board (PEB) for the following conditions/defects that failed retention standards:

* C5-6 disc herniation
* Right C6 radiculopathy
* Major Depressive Disorder, recurrent

   b.  A review of the psychiatrist's report to the MEB dated 5 April 2012 shows, "[t]he Soldier reported he needs daily assistance to perform his ADLs because of his physical impairments."

   c.  A review of the MEB Narrative Summary, dated 24 April 2012, and his military medical records show during examination he reported, in pertinent part:
   
* on 25 January 2011 – Is there problem with activities of ADL?  "Yes" –

* Household Chores:  Moderate
* Toileting:  None
* Grooming:  None
* Shopping:  Moderate
* Self-Feeding:  None (emphasis added)
* Bathing:  None (emphasis added)
* Dressing/Undressing:  None (emphasis added)
* Engaging in Sports/Exercise:  Prevents
* Traveling:  None
* Driving:  Moderate
* Other Recreational Activities:  Moderate
* Description of Other Problem with ADLs:  Spinal injury affects ADLs

* on 28 June 2011 – Is there problem with activities of ADL?  "Yes" –

* Household Chores:  Moderate
* Toileting:  None
* Grooming:  Slight
* Shopping:  Moderate
* Self-Feeding:  None (emphasis added)
* Bathing:  Slight (emphasis added)
* Dressing/Undressing:  Slight (emphasis added)
* Engaging in Sports/Exercise:  Severe
* Traveling:  None
* Driving:  Prevents
* Other Recreational Activities:  Moderate
* Description of Other Problem with ADLs:  Friend helps him get dressed, chronic pain and right arm condition limits ADLs

5.  On 2 October 2012, a PEB convened at Fort Sam Houston, TX.

* The PEB determined that the applicant's unfitting conditions were –

* Major Depressive Disorder, recurrent – 50% disabling
* Right Upper Extremity Radiculopathy – 50% disabling
* C5-C6 Disc Herniation – 30% disabling

* The PEB determined the applicant was physically unfit and recommended permanent disability retirement with a combined disability rating of 80%

6.  U.S. Army Physical Disability Agency Orders D334-06, dated 29 November 2012, released the applicant from assignment and duty because of physical disability and placed him on the retired list effective 3 January 2013.

7.  The applicant applied for Traumatic Injury Protection under the TSGLI benefits and his claim was denied.
   
   a.  On 22 January 2013, his request for reconsideration was disapproved because the medical documentation he provided did not indicate that his physical injury would make him incapable of performing the ADLs of bathing, dressing, or eating that are covered by TSGLI standards for 30 consecutive days or greater.

   b.  His application for appeal of TSGLI Benefits (pages 3–13) shows –

* pages 3–7 (Member's Claim Information and Authorization) was completed, signed by the applicant, and dated 8 May 2013
* pages 8–13 (Medical Professional's Statement) completed by
D____ R. S____, MD, Family Medicine, and dated 19 September 2011 (emphasis added)

* page 11 – Inability to Independently Perform ADLs –

* What is the predominant reason the patient is/was unable to independently perform ADL?"  "X" indicating "Other Traumatic Injury" and the entry, "SGT grabbed patient's helmet and pulled backward and down resulting in a hyperextension injury and
C5-C6 radiculopathy leading to tingling/inability to raise right arm."

* a checkmark indicating "Unable to bath independently"

* Start Date:  15 May 2010, End Date:  is blank (no entry)
* A checkmark indicating "Inability is ongoing"
* Type of assistance required:  physical assistance (hands-on) and the entry, "Help washing back and left side."

* page 12 – Inability to Independently Perform ADLs (continued) –

* a checkmark indicating "Unable to dress independently"

* Start Date:  15 May 2010, End Date:  is blank (no entry)
* A checkmark indicating "Inability is ongoing"
* Type of assistance required:  physical assistance (hands-on) and the entry, "Needs help getting dressed."

* a checkmark indicating "Unable to eat independently"

* Start Date:  15 May 2010, End Date:  is blank (no entry)
* A checkmark indicating "Inability is ongoing"
* Type of assistance required:  physical assistance (hands-on) and the entry, "Help with cutting up food/dishing it out."

* page 13 – Medical Professional's Information –

* Name of Medical Professional –

* D____ R. S____, MD, Family Medicine
* A checkmark indicating, "I have observed the patient's loss." 
* The doctor signed the form on 19 September 2011
   
   c.  On 12 August 2013, his appeal was disapproved because the medical documents he submitted for the event that occurred on 15 May 2010 did not indicate his injuries rendered him incapable of performing the ADLs of bathing, dressing, or eating that are covered by TSGLI standard for 30 consecutive days or greater.


8.  In support of his application the applicant provides, in pertinent part, the following documents.

   a.  Mayo Clinic Health System, Family Practice medical records, dated:

   (1)  16 August 2010, that shows the applicant was having issues since
15 May 2010 for neck and shoulder pain and right arm pain and weakness.  Dr. D____ R. S____ wrote, "At one time he was noted to have a tick present.  The tick was taken off."  (A review of the record revealed no report of a traumatic injury or reference to assistance with ADLs.)

   (2)  dated 2 September 2011, that shows, "Early on he was seen in
Wisconsin where a deer tick was reportedly removed.  Had subsequent Lyme titers checked.  He did not develop a bull's eye rash.  He is not aware of any prior injury to his head or neck within the days or weeks before the onset of symptoms.  He has never had symptoms like this before.  During this training, he was requested to wear body armor that covered his neck.  He does not think this would have caused any injury.  He does remember having to lie in a prone position with his neck extended for prolonged periods of time during his training."  (A review of the record revealed no report of a traumatic injury or reference to assistance with ADLs.)

   b.  Medical records spanning the period 15 September 2010 to 30 November 2010, that document his consults, examinations, and treatment, including physical therapy.  A review of the records revealed no report of a traumatic injury or reference to assistance with ADLs.

   c.  A letter from Dr. D____ R. S____, MD, Austin Medical Center, Mayo Health System, dated 21 December 2010, that shows he referred the applicant for a second opinion regarding ongoing issues of neck pain, right arm pain and weakness.  He wrote, "It stems from his employment in the U.S. Army, in which a sergeant grabbed his helmet and pulled his head, and since that time he has had the ongoing above issues."

   d.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 May 2010, that shows the applicant was treated for an injured neck and right shoulder/arm sustained on 15 May 2010 while training at Fort McCoy.  On
4 February 2011, the unit advisor determined the injury was considered to have been incurred in line of duty.



   e.  DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 15 December 2010, that shows the investigation officer found, "[Applicant] was having arm and shoulder pain while conducting battle drills at Fort McCoy on 15 May 2010 due to the fact that his equipment was not properly sized and the incident involving his squad lead (SGT P____) forcefully trying to adjust his Kevlar.  It is my finding that [applicant's] line of duty is in line of duty."  The findings were approved on 17 May 2011.

   f.  Three DA Forms 3349, dated 11 September 2010, 14 November 2010, and 12 December 2011, that show the applicant was issued a temporary profile on those dates for a cervical root/plexus contusion; neck strain, neck pain; right neck and arm injury, respectively.  The symptoms occurred during annual training on 15 May 2010.

   g.  Four Attending Physician's Statements, dated 5 October 2010, 12 January 2011, 27 November 2011, and 16 December 2011, that show the applicant was unable to work from 15 May 2010 through "indefinitely."

   h.  VA Regional Office, St. Paul, MN rating decision, dated 14 March 2011, that shows, effective 13 December 2010, the applicant was granted service connection for –

* right arm C6 radiculopathy and right arm regional pain syndrome – 50%
* cervical spine with degenerative changes – 30%
* adjustment disorder with depressed mood, chronic associated with right arm C6 radiculopathy and right arm regional pain syndrome – 10%
   
   i.  Two VA Forms 21-4138 (Statements in Support of Claim), both dated 
12 June 2011, and made in support of the applicant's VA claim, that show:

    	(1)  M____ L. W____ stated, "I have been living [with the applicant] since the beginning of his injury on 15 May 2010.  I help him around the household with chores like mowing the lawn, taking out the garbage, washing dishes, walking his dogs, etc.  I also have to help him get dressed (tying of his shoes/boots any zippers or buttons, washing his clothes).  I have also had to help him bathe since date of injury due to him being unable to [raise] his right arm, as well as wash his hands (his right hand) after he uses the rest room and with shaving before drill.  I had to drive him around in my own personal car due to the fact he has been unable to drive.  I also have to cook most days and cut up food due to the lack of use of his right arm as well as his memory has deteriorated due to the constant pain and headaches he suffers from."
    	(2)  K____ W____ stated that she took the applicant to the emergency room on 17 May 2010 because he was having a problem moving his arm and also had a deer tick imbedded in his arm.  She provides a brief history of the medical treatment the applicant has received and the financial and physical support she provides (i.e., driving him to almost 99% of his appointments, taking care of his animals, paying his bill).  She states, "My son (M____ W____) lives with him and helps him on a daily basis with the personal care and upkeep of his home and property because he is unable to do so."

   j.  DA Form 2823 (Sworn Statement), made by the applicant on 21 June 2011.  He wrote, "September 2nd, 2010 I went to see Dr. N____ Y____ because of acute limb pain weakness he stated it was probably not due to complex regional pain syndrome.  He then referred me to physical therapy.  He then states I did not want to deploy to Iraq which was a false statement.  He then proceeds to say this could be a looming fact why my injury is not getting better.  That is also false I stated to him directly I wanted to be fixed in time to go onto the deployment."  He then provides a brief summary of his military personnel actions and medical processing.  (A review of the statement failed to reveal any reference to needing assistance with ADLs.)

   k.  Medical records spanning the period from 29 December 2010 to 6 October 2011 that document his consults, examinations, and treatment, including physical therapy.  A review of the records failed to reveal any reference to assistance with ADLs.

   l.  A DA Form 3349, dated 6 August 2011, that shows the applicant was issued a permanent profile for limited use of right upper extremity with pain, numbness, and tingling of right upper extremity along with associated pains in the cervical spine (neck).  It shows in item 8: No Fine Manipulation, Grasping, Lifting/Lowering/Carrying, Pushing/Pulling, Reaching (above shoulder), or Weight-Bearing, Running, Standing, or Walking/Marching at own pace and distance."
   
   m.  VA Medical Progress Reports, dated 28 December 2012 and 28 February 2013.  A review of the records failed to reveal any reference to assistance with ADLs.

   n.  VA Regional Office, St. Paul, MN rating decision, dated 30 April 2013, that shows, effective 1 September 2012, the applicant was granted service connection for loss of use of dominant hand – 70%.

   o.  Social Security Administration, Retirement, Survivors, and Disability Insurance, Notice of Award, that shows the applicant was entitled to monthly disability benefits beginning April 2012.

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.  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.  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.  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 (TBI); 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 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 TBI).  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his claim for TSGLI benefits based on a traumatic injury he suffered on 15 May 2010 should be approved because he has required assistance with more than two ADLs (i.e., bathing, dressing, and eating) since 
15 May 2010.

2.  The applicant's request for TSGLI benefits was carefully considered.

   a.  On 17 May 2011, the approving authority determined that injuries the applicant sustained from an incident on 15 May 2010 were in line of duty.  The investigating officer's description of the incident shows the applicant was having arm and shoulder pain while conducting battle drills at Fort McCoy because his equipment was not properly sized and his squad leader forcefully tried to adjust his Kevlar.  However, the line of duty investigation, in and of itself, does not offer evidence to substantiate "other traumatic injuries."

   b.  On 2 October 2012, a PEB determined that the applicant's unfitting conditions were –

* Major Depressive Disorder, recurrent – 50% disabling
* Right Upper Extremity Radiculopathy – 50% disabling
* C5-C6 Disc Herniation – 30% disabling

   c.  The applicant was placed on the retired list on 3 January 2013 based on permanent physical disability.

3.  The evidence of record shows the applicant's requests for Traumatic Injury Protection under the TSGLI benefits were denied on at least three occasions.  The reason for denial was that the medical documentation he provided did not indicate that his injuries rendered him incapable of performing at least two of the six covered by TSGLI standards for 30 consecutive days or greater.

4.  The evidence of record shows for other traumatic injuries resulting in the inability to carry out two of the six ADLs, TSGLI claims may be filed for loss of ADLs if claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more (emphasis added).  In addition, ADL loss must be certified by a healthcare provider, the 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. 

5.  The applicant's military medical records, dated 25 January 2011 and 28 June 2011, show he provided information to medical officials pertaining to his problems with activities of ADL.  His responses fail to show he was completely dependent on someone else to perform at least two of the six ADLs for 30 days.

6.  In his appeal of his request for TSGLI, the applicant provided an Application for TSGLI Benefits that appears to be comprised of two separate applications (i.e., administrative information completed by the applicant on 8 May 2013 and medical information completed by Dr. D____ R. Smith on 19 September 2011 (emphasis added).  The doctor's certification of the applicant's inability to independently perform three ADL's (i.e., bathing, dressing, and eating) since
15 May 2010 (emphasis added) is in direct contradiction with what the applicant reported to medical officials as recently as 28 June 2011 (emphasis added).

7.  In addition and more importantly, the ADL losses are not substantiated by appropriate documentation such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents.

8.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary 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)                                         AR20140013339



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ABCMR Record of Proceedings (cont)                                         AR20140013339



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