IN THE CASE OF:  	  

		BOARD DATE:  2 July 2015	  

		DOCKET NUMBER:  AR20140018787 


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, in effect, reconsideration of his denied claim for Traumatic Servicemembers’ Group Life Insurance (TSGLI) benefits as an exception to policy for the 2-year time limitation from the date of the incident to the date of loss.

2.  The applicant states:

   a.  He feels his denial by the U.S. Army Human Resources Command (HRC) was erroneous.  He is enclosing documentation showing that he was within the provisions of the required loss period.  Either due to lack of medical knowledge or sincere interest in his case, he was unfairly denied benefits.

   b.  He previously submitted a TSGLI claim and then appeals attempting to collect the designated payment for loss of an eye.  He has repeatedly been denied without, in his opinion, any regard for the circumstances that define this matter.  After almost 30 years of service (and paying SGLI payments) he is being medically retired from the Army that he dedicated his life to.  He is also being forced to retire from the Federal technician workforce.  This is all due to the same line of duty (LOD) incident that he is claiming for compensation.

   c.  He understands the technicality that Prudential has used to previously deny his claim for benefits and save them some money, but he does not understand though how the last appeal still fails to fall into their criteria for loss.  He honestly thought that after explaining the situation that his claim would be approved, but it was not to be.  He actively sought medical care and a diagnosis soon after his exposure in Area 25 of the Nevada Test Site while performing military active duty training due to the almost immediate and severe symptoms he experienced from exposure to radiation.  He was aware of the 2-year time limit from an incident to loss, but it took him almost 20 months and numerous doctors in order to find out what was wrong with him.

   d.  Due to the extended delay in medical care he not only lost his right eye, but also almost half of the sinus tissue.  He also suffered the loss of a generous portion of his facial bones including the lower edge of the right orbital opening, part of the cheekbone, and a portion of the bone and cartilage of his nose.  He was recently treated rather badly during his medical evaluation board (MEB)/physical evaluation board (PEB) process because his injury was not "combat" related.  He was part of a mission that he can never talk about with people.  He can never discuss this and he says things that most people will never see or even know about.  Due to the secrecy and massive non-disclosure issues with where he was and what he was doing, it took quite an effort to find enough information to prove that this inquiry was actually in LOD.

   e.  In his latest attempt to collect on his TSGLI claim, he felt that he more than proved the non-functional status of his eye before it was actually removed.  This falls within the 2-year time limit which has been repeatedly cited as the sole reason for the denial of his claim.  He sincerely hopes that this final appeal to the Board finds its way into the hands of someone who has an interest in Soldiers rather than simply saving an insurance company some money.  He served his entire career the best he could.  He accomplished every task, deployment, and mission to the utmost of his ability including State emergency missions too numerous to mention.

   f.  He understands that his situation is not as "easy" as a Soldier suffering a loss from an improvised explosive device or other combat injury.  Due to the unusual nature of his claim, he simply requests understanding and careful thought in this matter instead of the standard stamp of "tough luck" thrown his way once again.  

3.  The applicant provides copies of the following:

* Orders Number 068-064 (2 copies)
* Dean McGee Eye Institute New Patient Record
* St. Anthony Hospital Diagnostic Imaging
* Dean McGee Eye Institute Comprehensive Established Patient History Record
* two McGee Eye Surgery Center Operative Reports
* Mercy Health Center Operative Report
* Medical Center Pre- and Post-Operative Diagnosis
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* LOD investigation memorandum
* SGLV 8600 (Member's Claim Information and Authorization)
* three letters from the Dean McGee Eye Institute
* two letters from HRC, Special Compensations Branch (TSGLI)
* DA Form 3947 (MEB Proceedings) page 1
* TSGLI Appeal Board memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Oklahoma Army National Guard (OKARNG) on 3 May 1985 for 8 years.  He was awarded military occupational specialty 91X (mental health specialist).  

2.  He provided copies of the following:

   a.  Orders Number 068-064 issued by the OKARNG on 9 March 2007, ordering him to annual training from 13 March through 11 April 2007 to Mercury, NV; Flagstaff, AZ; and Amarillo, TX.

   b.  A Dean McGee Eye Institute New Patient Record dated 24 August 2007, which shows he was seen for tearing of his right eye around the tear duct.

   c.  A St. Anthony Hospital Diagnostic Imaging Report dated 27 December 2007, which shows he underwent  magnetic resonance imaging of the brain.

   d.  A Dean McGee Eye Institute Comprehensive Established Patient History Record dated 19 December 2008, which shows his established patient history.

   e.  A McGee Eye Surgery Center Operative Report, dated 22 December 2008, which shows he was diagnosed with an orbital tumor of the right eye and he underwent an orbital and ethmoid biopsy.

   f.  A Mercy Health Center Operative Report dated 14 January 2009, which shows he underwent a modified radical maxillectomy of the right side.  The report stated he had a history of a lesion that was identified in his right maxillary sinus, pushing on the right eye.  His ophthalmologist performed a biopsy through a conjunctival approach to the tumor.  The diagnosis was squamous cell carcinoma of his right maxillary sinus with extension into his right eye (orbit) and ethmoid sinus.  

   g.  A McGee Eye Surgery Center Operative Report dated 4 June 2009, which shows he underwent a right hypotropia with diplopia secondary to orbital fracture. 
   
   h.  A letter dated 29 September 2009, wherein the Associate Processor, Ophthalmic and Plastic and Reconstructive Surgery, Dean McGee Eye Institute, stated he saw the applicant on that date and reevaluated the applicant for surgery.  The applicant had continued epiphora on the right side and also a medial ectropion on that side.  The applicant was planning to have strabismus surgery on Thursday and they would do a joint procedure were he would do a dacryocystorhinostomy and medial canthal plasty following Dr. Fxxxxx'x eye muscle surgery.  

   i.  A McGee Eye Surgery Center Operative Report dated 1 October 2009, which shows he underwent an incyclotorsion of the right eye.

   j. A McGee Eye Surgery Center Operative Report dated 21 December 2010, which shows he underwent exoneration of the right orbital contents.

   k.  A DA Form 2173, dated 22 November 2011, which shows he was examined on 18 December 2008 for a permanent and total injury to his right eye while on active duty for training.  The form stated he was working at a high radiation level area at a nuclear radiation storage site and he contracted a fast growing cancerous tumor in his face that caused the removal of his right eye.

   l.  An LOD Investigation memorandum dated 30 November 2011, which showed his orbital mucoepadermoid adenocarcinoma was approved for LOD.

   m.  An SGLV 8600, dated 11 May 2012, he completed for compensation for the loss of his right eye.  

3.  On 13 July 2012, HRC, Special Compensations Branch (TSGLI), denied his first application.  His record is void of a copy of their initial denial notification letter.  

4.  He also provides copies of the following:

   a.  A letter dated 26 February 2013, wherein HRC, Special Compensations Branch (TSGLI), advised him that they were unable to overturn the previous decision.  The documents provided for his event which took place while he was stationed in Nevada on 9 April 2007 did not indicate that he suffered his claimed losses within the prescribed period (730 days) as defined by the regulation.  The letter also advised him of the basic eligibility requirements he must meet in order to be eligible for TSGLI benefits.  In addition, the letter identified losses not covered by TSGLI, which included medical or surgical treatment of an illness or a disease.

   b.  A letter, dated 1 July 2013, wherein the Professor, Ophthalmology, Dean McGee Eye Institute, stated the applicant had been followed at the McGee Eye Institute since early January 2010 with a diagnosis of recurrent squamous cell carcinoma of the right sinus.  The applicant had previously undergone radiation therapy and orbital surgery.  His ability to use his right eye since that time was poor due to the fact that he had constant double vision and an inability to move the eye normally.  Subsequently, his right eye was surgically removed in December 2010.

   c.  A letter, dated 1 July 2013, wherein the Professor, Ophthalmology, Dean McGee Eye Institute, verified that the applicant suffered from chronic trigeminal neuralgia on the right related to squamous cell carcinoma of his right sinus extending into his orbit.  He had an exoneration of his right eye with residual chronic discomfort.  There was no surgical procedure that could alleviate that type of pain.  He required continuous pain management.

   d.  A letter, dated 30 July 2013, wherein the Professor, Ophthalmic Plastic and Reconstructive Surgery, Dean McGee Eye Institute, stated the applicant had squamous cell carcinoma of his sinuses which extended to the orbit and he underwent a partial maxillectomy in January 2009.  At the time of the surgery, the inferior oblique muscle of the right eye was involved with the tumor, and as a result a portion of the inferior oblique muscle was resected.  Simultaneously a transection of the superior oblique muscle was done to try and compensate for the visual impact of losing the inferior oblique muscle.  Following his post-operative period, the applicant had rotary nystagmus and continued diplopia from that eye and as a result had to patch that eye.  The eye was nonfunctional at the time.  Subsequent to that he had recurrence of tumor in the eye socket and he had the eye and eye socket removed, undergoing a complete exenteration in December 2010.

   e.  A TSGLI Appeal memorandum dated 12 August 2013, wherein he stated the following:

		(1)  After his January 2009 surgery, his right eye was unusable even though it remained in the socket.  He was forced to wear an eye patch due to the extreme tilt of the eye itself and the erratic tracking caused by the muscles involved with the surgery.  


		(2)  Previous records sent in reference to his claim show Dr. Fxxxxx was brought in and performed surgery in an attempt to repair that flaw.  It was unsuccessful and he was never able to regain the use of his right eye at any time up to the removal of the eye in December 2010.  His doctor did everything possible to assist during this time to no avail.

		(3)  The TSGLI schedule of losses states the loss of sight for 120 days or more qualifies for compensation.  He states if he could not use his eye because of it being damaged and it was completely covered with an eye patch then it does not meet the definition for sight as listed.  

		(4)  The standards for loss stated that he either must have (1) blurred vision, or (2) no peripheral vision, or (3) complete loss.  Numbers 1 and 2 are listed with standards of "has lasted at least 120 days or will not improve (with reasonable certainty) throughout the member's life."

		(5)  If he looked at the definition of vision, "the act or power of seeing" then he fell under Number 1 as he could not have better than 20/200 vision if it was covered due to damage.  In effect, his eye was nonfunctional after the January 2009 surgery.  This would qualify him for Number 3 which is listed as "non-existent due to complete loss of the eye."  If something was considered useless then how could it not be considered as a complete loss?

5.  His records contain the following:

   a.  An MEB Narrative Summary, dated 22 October 2013, which states the applicant had reached the medical retention determination point for a history of cancer, eye removal, and headaches since those conditions had existed for more than 12 months and continued to required significant profile limitations.  A DD Form 3349 (Physical Profile) indicated "history of cancer" and "loss of eye as a result of cancer."  Those conditions prevented the applicant from being able to fire his weapon, from running and performing impact activities, from riding in vehicles except as tolerated, from wearing a Kevlar helmet or mission oriented protective posture gear, from ruck marching, and from being placed into austere environments.

   b.  An MEB convened on 23 October 2013 and considered the applicant's medically unacceptable condition of orbit malignant carcinoma squamous cell, in remission; right orbit removal; headache syndrome; and right trigeminal neuralgia.  The MEB recommended his referral to a PEB.  The findings and recommendations of the MEB were approved on 28 October 2013 and the applicant agreed with the findings and recommendations of the MEB on 16 December 2013.
6.  He also provided a copy of a letter dated 15 November 2013, wherein the HRC, Special Compensations Branch (TSGLI), advised him that they were unable to overturn the previous adjudication.  The TSGLI office received documentation for his event which took place on 9 April 2007 in Nevada.  However, the medical documentation provided did not indicate that he suffered a qualifying loss within 730 days of the traumatic event.  The TSGLI standard for vision loss was a visual acuity of 20/200, or worse, with corrective lenses or a visual field of 20 degrees or less.  The documentation provided did not indicate that his vision met the TSGLI standard for payment within 2 years of his claimed event.

7.  An informal PEB convened on 15 August 2014 and considered the applicant's condition of posterior capsular opacity, vision obstruction, claimed residuals of cancer of right eye to include removal; acquired absence of right eye; and allergic rhinitis associated with posterior capsular opacity.  The PEB found the applicant to be physically unfit with a combined rating of 50 percent and authorized permanent disability retirement.

8.  Orders D 266-17 issued by the U.S. Army Physical Disability Agency on 23 September 2014 medically retired him.

9.  He was medically retired from the OKARNG on 28 October 2014.

10.  Public Law 109-13 established the TSGLI Program to provide relief to Soldiers who are severely injured and incurred a loss as a result of a traumatic event.  The law stated:
   
   a.  For the purposes of TSGLI, a traumatic event is defined as the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being.  The term "traumatic injury" does not include damage to a living body caused by a mental disorder or a mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance.

   b.  A service member must meet all of the following requirements to be eligible for payment of TSGLI:

		(1)  Have been insured by SGLI at the time of the traumatic event;

		(2)  Have incurred a scheduled loss and that loss must be a direct result of a traumatic injury;
		(3)  Have suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services;

		(4)  Have suffered a scheduled loss within 2 years (730 days) of the traumatic injury; and

		(5)  Have survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case).

   c.  The TSGLI Schedule of Losses is comprised of two parts.  Part I lists specific losses that include items like loss of an extremity, an inability to speak or see, or hear.  Part II addresses the inability to carry out activities of daily living due to a loss directly resulting from a traumatic injury other than a brain injury.

	d.  Each Uniformed Service will certify the eligibility of its own members for traumatic injury protection benefits based upon Public Law 109-13, section 1032, and Title 38, CFR, section 9.20.

11.  The TSGLI standard for the loss of sight is the total and permanent loss of sight or loss of sight that has lasted 120 days.  When a member has a loss of sight, the member may be eligible for a TSGLI benefit of up to $50,000.  For total and permanent loss of sight, the member must meet one of the following three standards:

   a.  If the member’s visual acuity in at least one eye is 20/200 or worse with corrective lenses and the loss of vision has lasted at least 120 days or will not improve (with reasonable certainty ) throughout the members life.

   b.  If the member’s visual acuity in at least one eye is greater (better) that 20/200 with corrective lenses and their peripheral vision in at least one eye is a visual field of 20 degrees or less and the loss of vision has lasted at least 120 days or will not improve (with reasonable certainty) throughout the member’s life.

   c.  If the member’s visual acuity in at least one eye is non-existent due to complete loss of the eye(s).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows while on annual training in April 2007, the applicant was exposed to radiation while working at a nuclear radiation storage site.  On 22 December 2008, he was diagnosed with an orbital tumor of the right eye.  On 14 January 2009, he underwent a modified radical maxillectomy of the right side.  Following his post-operative period, he experienced rotary nystagmus and continued diplopia from that eye and as a result wore an eye patch and the eye was nonfunctional at the time.  In December 2010, he underwent a complete exenteration of the eye and eye socket.

2.  A PEB found him medically unfit for vision loss and removal of his eye and recommended his permanent disability retirement with a combined rating of 50 percent.  He was medically retired from the OKARNG on 28 October 2014.

3.  His initial TSGLI claim and subsequent requests were denied because the claimed losses for benefits for the loss of vision and his eye were greater than 2 years from the claimed traumatic event.

4.  There is no evidence and he did not provide sufficient evidence supporting his claim that his total/permanent loss of sight or loss of sight occurred less than 2 years from the claimed traumatic event.  By law, a member must have suffered a scheduled loss within 2 years of the traumatic injury (emphasis added).  His loss fell outside the qualifying period; therefore, he is not entitled to TSGLI benefits and reversal of the denial for these benefits.  There is no evidence and he did not provide sufficient evidence to show he was improperly disallowed the TSGLI benefits.

5.  The Board does not have the authority to grant an exception of policy that would violate the law.  Unfortunately, in this case the timing sequence from the date of the injury to complete loss is greater than 730 days.  Therefore, an exception to policy is not within the purview of this Board.  While the applicant alleges that his application was not carefully reviewed and only summarily dismissed due to time restrictions, the evidence of record does not support his contention.  Though frustrating to the applicant, the Army must work within the limitations of the law.  

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 our Nation.  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)                                         AR20140018787



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ABCMR Record of Proceedings (cont)                                         AR20140018787



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