IN THE CASE OF:	   

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20140019257 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests on behalf of the applicant, in effect, that his Traumatic Service members’ Group Life Insurance (TSGLI) claim be reconsidered.

2.  Counsel states in a 14-page notice of disagreement that the applicant's loss due to injury is supported by sufficient medical information to grant his claim for TSGLI benefits.

	a.  Counsel references statutes and regulations governing TSGLI, wherein the program provides a one-time payment to service members who have sustained a serious injury.

	b.  Counsel states that his firm submitted the applicant’s original claim on       18 April 2012 which was denied on 16 June 2012 because his loss did not meet the standards for TSGLI.

	c.  Counsel states that his firm submitted the applicant’s first reconsideration on 26 June 2012 and it was denied on 31 July 2012 because the medical documentation submitted did not indicate the injury to his left leg rendered him physically incapable of performing the activities of daily living (ADL) for bathing, dressing, toileting and/or transferring that are covered by TSGLI standards.  If a service member is able to perform the activity independently by utilizing adaptive measures or equipment, then they are considered able to independently perform the activity.

	d.  Counsel states that his firm submitted a third application for appeal on          2 November 2012, and despite the preponderance of evidence provided in support of the claim, the appeal was denied on 4 April 2013 because the medical documentation provided did not indicate the injury to his left rendered him physically incapable of performing the ADLs for bathing, dressing, toileting and /or transferring that are covered by TSGLI standards.  If a service member is able to perform the activity independently by utilizing adaptive measures or equipment, then they are considered able to independently perform the activity.  The applicant was subsequently advised that further appeals must be made to this Board.

	e.  Counsel states that on 29 April 2011, the applicant suffered several serious orthopedic injuries including a left femur fracture, torn anterior cruciate ligament (ACL), posterior cruciate ligament (PCL) and meniscus in his left knee from an all-terrain vehicle (ATV) rollover.  He was airlifted to the University of Tennessee Medical Center where he underwent debridement and irrigation for his left quadriceps.  He was discharged on 4 May 2011 with activity restrictions.  He was discharged home to his family to assist him with all activities.  Due to the extent of his injuries he was incapable of bathing and dressing independently from 29 April 2011 through 1 November 2011, a period of over 120 days.

	f.  Counsel states that the applicant’s medical records supports his claim for the inability to perform ADLs of bathing and dressing from 29 April 2011 through 1 November 2011 and he disagrees with the decision provided by the TSGLI officials.

	g.  Counsel states that the applicant’s injuries and ADL losses are well documented and are validated by undisputed medical evidence.  He required at least stand-by assistance and physical assistance with dressing and bathing.

	h.  Counsel states that Dr. DH noted that the applicant:

* was unable to perform at least two ADLs for over 120 consecutive days
* experienced a traumatic injury from a four wheeler vehicle accident
* required another person to help him bathe
* he was unable to bathe lower extremities or get in or out area without assistance
* required help from 29 April 2011 through 1 November 2011
* required another person to help him dress
* was unable to put on pants or left footwear without assistance

	i.  Counsel states that Dr. DH’s medical conclusions are uncontested in this case.  There are no other contrary medical opinions stating the applicant did not meet the ADL loss certified by Dr. DH.  Dr. DH’s conclusions correspond with the contemporaneous medical records and other evidence and serves as substantial evidence in support of an award of benefits to the applicant

	j.  Counsel contends that the applicant's left leg injury and resultant loss of ADLs for 120 consecutive days entitles him to the $100,000 TSGLI benefit.

3.  Counsel provides:

* a 14-page Letter of Disagreement
* U.S. Army Human Resources Command (HRC) denial memoranda dated 31 July 2012, 4 April 2013, and 25 October 2013
* letter of support from applicant’s wife
* medical timeline
* medical records
* SGLV Form 8600 (Application for TSGLI Benefits) dated 19 April 2012


CONSIDERATION OF EVIDENCE:

1.  Records show the applicant enlisted in the Regular Army on 9 January 2009.

2.  On 29 April 2011, he was involved in an ATV accident and was admitted to the University of Tennessee Memorial Hospital.  He was discharged on 3 May 2011.  His Discharge Activity Level Restrictions included no driving and no heavy lifting greater than 5 pounds.

3.  An SGLV 8600, dated 19 April 2012, shows he submitted a claim for TSGLI benefits.

4.  On 20 May 2012, he was honorably released from active duty and transferred to the U.S. Army Reserve.  He was released due to completion of required active service. 

5.  On 16 June 2012, by letter, the Prudential Office of TSGLI advised the applicant that his branch of service had evaluated his claim for traumatic injury under TSGLI.  His claim could not be approved because his loss did not meet the standards.

   a.  His claim for the inability to perform ADLs due to traumatic injury (other than traumatic brain injury (TBI)) was not approved because his loss did not meet the standards for TSGLI.  In order to qualify, he must have been unable to independently perform at least two ADLs for at least 30 consecutive days.  A member is considered to be unable to perform an activity independently if he or she requires at least one of the following without which they would be incapable of performing the task:  physical assistance (hands on), stand by assistance (within arm’s reach), or verbal assistance (must be instructed).

   b.  The inability to perform must have been certified by a medical professional.

6.  On 31 July 2012, by letter, the Special Compensation Branch (TSGLI), notified the applicant the TSGLI office had reconsidered the decision of his previous claim.  The TSGLI office stated they were unable to overturn the previous adjudication.

   a.  The medical documentation he provided did not indicate the injury to his left leg rendered him physically incapable of performing the ADLs of bathing, dressing, toileting, and/or transferring that were covered by TSGLI standards.

   b.  If a service member is able to perform the activity independently by utilizing adaptive measures or equipment (such as crutches, walkers, or the ability of other limbs of the body), then he or she is considered to independently perform the activity. 

7.  On 4 April 2013, by letter, the Special Compensation Branch (TSGLI), HRC, notified the applicant that the TSGLI office had reconsidered the decision of his previous claim.  The TSGLI office stated they were unable to overturn the previous adjudication.

   a.  The medical documentation he provided did not indicate the injury to his left leg rendered him physically incapable of performing the ADLs of bathing, dressing, toileting, and/or transferring that were covered by TSGLI standards.

   b.  If a service member is able to perform the activity independently by utilizing adaptive measures or equipment (such as crutches, walkers, or the ability of other limbs of the body), then they are considered to independently perform the activity. 

8.  On 25 October 2013, by letter, the Special Compensation Branch (TSGLI), HRC, notified the applicant’s counsel that the TSGLI office had received his appeal request.
   a.  The TSGLI office stated he had exhausted his client’s appeal rights with their office.

   b.  His client’s claim had been previously been denied at the Initial, Reconsideration, and Appeal levels.

   c.  He was directed to submit any further appeals to this Board. 
 
9.  Counsel provides Part B of the TSGLI claim form signed by a Dr. DH.  The form is dated 16 April 2011 (sic) and it states that the applicant's inability to perform ADLs began on 29 April 2011 and ended on 1 November 2011.  The doctor states that the applicant needed assistance getting to and from the bath, undressing and dressing, and getting clothing on.  The doctor stated the applicant had several MRIs of his left knee.  He was noted to have left medial collateral ligament (MCL), ACL, and PCL injuries.  His surgery for left knee reconstruction was delayed for 6 months.  He used a brace, cane, crutches, narcotics, and physical therapy but was disabled until after his 1 November 2011 surgery.  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.

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 (CRSC) 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.  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.  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 OIF and OEF or under orders in a Combat Zone Tax Exclusion (CZTE) 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 some 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 hemiplegic;

	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 2 of the 6 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 won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  

12.  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, that the applicant’s TSGLI claim should be reconsidered because the applicant's left thigh injury and resultant loss of ADLs for over 120 consecutive days entitles him to the $100,000 TSGLI benefit.

2.  The evidence shows the applicant was involved in an ATV accident.  This injury caused pain that subsequently required surgery.

3.  He initially applied in 2012 and his claim was reconsidered in 2013 and appealed in 2013.  His requests were denied because he failed to provide adequate medical documentation showing that his injury resulted in a qualifying loss or the inability to carry out two of the six ADLs.

4.  Counsel provides Part B of the TSGLI claim form signed by a Dr. DH.  The form states the applicant's inability to perform ADLs began on 29 April 2011 and ended on 1 November 2011.  The doctor states the applicant needed assistance getting to and from the bath, undressing and dressing, and getting clothing on.  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. He also noted the applicant’s use of a brace, crutches, and a walker.

5.  In order to qualify, he must have been unable to independently perform at least two ADLs for at least 30 consecutive days.  If a service member is able to perform the activity independently by utilizing adaptive measures or equipment, then they are considered to independently perform the activity

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)                                         AR20140019257



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140019257



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1