IN THE CASE OF:	  

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20140021530 


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 a $75,000.00 increase for Traumatic Servicemembers’ Group Life Insurance (TSGLI) for a total award of $100,000.00 

2.  The applicant states he suffered a traumatic event that resulted in a traumatic injury for a qualified loss.  He was unable to perform two activities of daily living (ADLs) for more than 120 days from 25 May 2007 to 30 August 2008. 

3.  The applicant provides his TSGLI applications and appeals with medical evidence and associated responses from the U.S. Army Human Resources Command (HRC).

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant was appointed as a Reserve commissioned officer of the Louisiana Army National Guard (LAARNG) and executed an oath of office on 18 August 1991.  He completed the Field Artillery officer basic course. 

2.  He served in a variety of assignments and transferred to the Utah Army National Guard (UTARNG).  In November 2002 he was promoted to major. 
In July 2004 the UTARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 


3.  He was ordered to active duty on 6 June 2006 and subsequently served in Afghanistan from 6 June 2006 to 30 August 2007 wherein he received the Combat Action Badge.  He was honorably released from active duty on 17 October 2008 and transferred to his ARNG unit.  He was promoted to lieutenant colonel (LTC) in March 2009. 

4.  He was ordered to active duty on 22 November 2010 and he was honorably released from active duty on 30 September 2011.  A review of his DD Form 214 issued at this time does not show he served overseas during this period of active duty service.  It appears he served in the Continental United States (CONUS). 

5.  On 23 May 2012, he resigned as a commissioned officer of the UTARNG.  His resignation was accepted.  As such, he was honorably discharged from the UTARNG on 18 June 2012.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement). 

6.  His records contain, and he provides, a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 May 2007.  It shows he injured his shoulder (rotator cuff) in Afghanistan when he was moving a heavy machine gun.  He tore his shoulder muscle.  He was evacuated to Landstuhl Army Medical Center in Germany.  He had trouble putting on his body armor.  He was issued multiple authorization letters by TRICARE authorizing him treatment and/or physical therapy.  He had surgery to repair the rotator cuff on 18 March 2008 by a civilian provider.

7.  On 16 March 2012, he submitted an "Other Traumatic Injury (OTI)" TSGLI application.  He indicated on 24 May 2007, in Afghanistan, he was moving a heavy machine gun under fire and tore the muscle and rotator cuff of his right shoulder. He was initially treated at Bagram Medical Hospital then transferred/ evacuated to Landstuhl and ultimately to Fort Gordon, GA and Jordan Valley Hospital, UT.  He claimed

* he was unable to bathe independently from 25 May 2007 to 30 August 2008; he required physical assistance to bathe left arm, right abdomen, and left shoulder blade; he also required assistance in and out of the tub
* he was unable to dress independently; he required physical assistance to put on his boots, socks, shirt, and armor; he also required assistance lacing his boots
* a medical professional in Family Medicine stated the applicant sustained a rotator cuff tear to the right shoulder; he had surgery on 18 March 2008; he was certified by the State Surgeon to be fit for duty on 3 September 2008; he still has some residual functional limitations but had no problems with ADLs  (the medical professional signed it on 8 March 2012).
8.  On 1 May 2012, by letter, Prudential Office of TSGLI advised the applicant that his branch of service had completed evaluating his claim for traumatic injury under TSGLI benefits.  His claim could not be approved because his loss did not meet the standards.  

	a.  His claim based on hospitalization is not supported.  Under TSGLI, hospitalization is defined as inpatient hospital stay, which lasts for 15 or more consecutive days in a hospital or series of hospitals that is accredited as a hospital.  

	b.  His claim of inability to perform ADLs due to traumatic injury beyond 30 days was disapproved because his loss did not meet the standards for TSGLI. In order to qualify, he must have been unable to independently perform at least 2 ADLs in at least 30 consecutive days.  A member is considered 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).  

9.  However, on reconsideration, dated 20 July 2012, all medical and TSGLI staff recommended disapproval, but, despite having not met the TSGLI standard for 30 consecutive days, the TSGLI branch chief ruled in his favor and authorized payment of $25,000.00 on 10 October 2012.  He was issued a $25,000 check by Prudential on 8 November 2012.

10.  On 14 November 2012, the applicant submitted an appeal for additional benefits.  He stated: 

* The payment of $25,000 is being disputed because he was unable to perform at least 2 ADLS for more than 120 days as certified by medical professionals; the total amount should be $100,000
* He already submitted documents that verified his qualified loss and documents that show he was unable to perform 2 ADLs from 25 May 2007 to 30 August 2008; this is over 464 days 
* The doctor verified that assistance was needed from the date of injury to end of care on 3 September 2008 
* The medical certification letter clearly stated he needed assistance with bathing and dressing 

11.  On 13 December 2012, his appeal was denied.  By letter, dated 31 January 2013, Prudential Office of SGLI informed the applicant that his branch of service completed an evaluation of his claim under the TSGLI benefits.  His claim for additional TSGLI benefits could not be approved.  He was previously awarded $25,000.00 for the inability to perform ADLs for 30 days due to a traumatic injury (other than traumatic brain injury).  In order to qualify for additional TSGLI benefits for ADL loss, his ADLs would have to be lost for 60 consecutive days or more.  The claim he submitted did not meet the standards.  The medical documents he provided did not indicate he was incapable of performing the ADLs of dressing or bathing for greater than 60 days, which is the next milestone required for further payment.  

12.  On 12 February 2013, he submitted a second appeal.  He contended that he was unable to perform at least two ADLs for more than 120 days.  He submitted the same application and medical documents he previously provided (signed) on 16 March 2012.

13.  On 5 September 2013, by letter, the Special Compensation Branch (TSGLI), HRC, notified the applicant that the TSGLI office conducted a review of his appeal request.  Based on his appeal and the documents he provided, the TSGLI office stated he was previously awarded $25,000.00 for loss of ADLs for 30 days for his event that occurred on 24 May 2007.  The medical documents he provided did not indicate he was incapable of performing the ADLs of dressing or bathing for greater than 60 days, which is the next milestone required for further payment. 

14.  On 16 September 2013, he appealed the decision to deny him the extra payments and contended that he was unable to perform at least two ADLs for more than 120 days.  He submitted the same application and medical documents he previously provided (signed) on 16 March 2012. 

15.  On 23 December 2013, by letter, the Special Compensation Branch (TSGLI), HRC, notified the applicant that the TSGLI office conducted a review of his appeal request.  The TSGLI office stated after reviewing his claim and supporting documentation, their office was unable to overturn the previous adjudication.  He was previously awarded $25,000.00 for loss of ADLs for 30 days for his event that occurred on 24 May 2007. The medical documents he provided did not indicate he was incapable of performing the ADLs of dressing or bathing for greater than 60 days, which is the next milestone required for further payment.  

16.  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 $25,000.00 and $100,000.00 to severely injured Soldiers who meet the requisite qualifications set forth by DOD.  As of 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 $1.00 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 or the location in which they incurred the injury will be covered by TSGLI.

17.  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 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- phalandeal joints, quadriplegia, paraplegia or hemiplegic, third (3rd) degree or worse burns covering 30% of body or 30% of the face, and coma or TBI.

18.  The six ADLs 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.  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 sustained a right shoulder injury during his tour in Afghanistan He was medically evacuated to a combat hospital.  He was then transferred through Germany to Fort Gordon, and ultimately to Utah.  After his release from active duty he underwent surgery to repair his rotator cuff. 

2.  He initially filed a TSGLI claim and received a payment of $25,000.00 based on his inability to perform 2 ADLs for 30 consecutive days.  Aside from his first application, his multiple appeals were in the forms of memoranda or letters disagreeing with the decision to award him TSGLI for only 30 days.  In each appeal, his claim of inability to perform ADLs due to traumatic injury beyond 30 days was disapproved because his loss did not meet the standards for greater TSGLI benefits. 

3.  In order to qualify for increased TSGLI benefits, the applicant must have been unable to independently perform at least 2 ADLs for more than 60 consecutive days.  A member is considered 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).  In addition, the ADL loss must have been certified by a healthcare provider and substantiated by appropriate documentation, such as occupational therapy/physical therapy reports, discharge summaries, and other medical documentation.  

4.  TSGLI analysts strive to apply a "reasonable person" standard to each claim with a bias in favor of the claimant while still maintaining a high degree of internal consistency among similar claims.  There is insufficient medical documentation indicating a physical incapacity of performing ADLs without assistance beyond 30 days.  The injury pattern appears to be consistent with up to 30 days of ADL loss.  In view of the foregoing, there is an insufficient evidentiary basis for granting him the 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)                                         AR20140021530



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ABCMR Record of Proceedings (cont)                                         AR20140021530



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