IN THE CASE OF:	  

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150001240 


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, her Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim for an additional $75,000 be reconsidered and approved (from $25,000 to $100,000).

2.  The applicant states, in effect:

	a.  Her TSGLI appeal was denied in part due to the adaptive equipment that she received and returned.  The adaptive equipment did not reduce any activities of daily living (ADL) deficits and would not have provided independence in (performing) ADL tasks.  This error is causing the TSGLI department to improperly pay her TSGLI claim.  The TSGLI standard of 120 days with two or more ADL losses has been established multiple times.  Reportedly, the self-care equipment (that was returned) negated her ADL loss and resulted in only a 
30-day payment.

	b.  Before coming to the Board, she exhausted her appeals at the lowest level.  She utilized every resource available to get a clear answer from the TSGLI office as to the true reason why her claim was being paid at the lowest level.  She was told she should have healed herself in 30 days, she should have used Velcro and she would not have ADL losses, the TSGLI office is not paying ADL claims at this time, and/or even though her record shows loss they are only paying gunshot victims at this time.  Due to the lack of a reasonable answer, it was hard to know what area in her record was causing a problem or the reason for the denial.  She hired a lawyer to help get answers and to help with her appeal.  The lawyer was told the adaptive equipment was causing an issue on her claim.  

3.  The applicant provides TSGLI applications and appeals with the medical documents and 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 Army and entered active duty on 14 May 2009.  

2.  On 15 July 2009, during a training exercise at Fort Sill, OK, she suffered a traumatic injury after she jumped off a tactical vehicle.  She fell and landed on her chest and wrists.  She continued the training exercise and was examined on site by the medics.  There was no indication of a long term injury.  However, she experienced pain and numbness in both of her arms and soreness in her neck and shoulders.  She was ultimately diagnosed with carpel tunnel syndrome and multiple nerve compression.  She underwent physical and occupational therapy but her pain was not resolved.  She also underwent surgery, including brachial plexus neuroplasty, first rib resection, and scalenectomy; but her nerve damage to the right hand was extensive.  

3.  She entered the disability system.  Her narrative summary shows: 

	a.  She was injured while at an Officer Leader Course at Fort Sill, OK in May 2009 and continued to have increasing symptoms of bilateral weakness, numbness, and pain in both upper extremities until a diagnosis was made in early 2010.  She underwent right first rib resection, right brachial plexus neuroplasty and right scalenectomy for right thoracic outlet syndrome on 2 August 2010.  Post-operatively she noted an inability to use her right dominant arm.  She reported daily pain in her right arm of 6-8 on a scale 10.  She developed claw deformity of the right hand, had undergone extensive occupational and physical therapy, and wore an "anti-claw" right hand splint.  Diagnostic testing showed severe axonesis involving the lower trunk of the right brachial plexus.  Her motor conduction was through a small portion of the trunk of the single motor unit. 

	b.  She had difficulty with any lifting with her right arm, and she could not perform ADLs with her right hand/arm.  Her condition was not medically stable based on the latest follow-up from the treating physician at the Mayo Clinic (Dr. Sh---), who stated it would take another 2 years (as of 27 July 2011) to determine whether or not more tendon transfers were needed in addition to more therapy.  
4.  In May 2011, she submitted an "Other Traumatic Injury (OTI)" TSGLI application.  She indicated she suffered from Reynaud's syndrome, bilateral carpal tunnel syndrome, bilateral peripheral nerve compression injury affecting the brachial plexus area, and severe nerve damage in the brachial plexus area on the right side.  She had only 3 percent function in the right hand and reduced function in the left.  With only the use of one hand, many ADLs were difficult at all times and with extreme pain.  She also stated left cramps and swells made it impossible to grasp or manipulate objects.  She claimed, in effect:

* she was unable to bathe independently from 6 January 2010 to an indefinite date; she required assistance to bathe areas of the back, shoulder, and hair; she required assistance with other parts of the body in times of extreme pain or loss of function on the left side as the right side only had 3 percent function
* she was unable to dress independently from 6 January 2010 to an indefinite date; she required assistance putting on and tying shoes, buttoning, snapping or zipping up clothes she required assistance with putting on articles of clothing in time of extreme pain or loss of function on the left side as the right side only had 3 percent function
* she was unable to toilet independently from 6 January 2010 to an indefinite date; she required assistance buttoning, snapping, or zipping up pants; she required assistance with putting on and taking off pants in times of extreme pain or loss of function on the left side as the right side only had 3 percent function
* a medical professional in Primary Care stated he observed the applicant's loss but did not provide any comments regarding loss of ADLs on the TSGLI application

5.  On 3 August 2011, she was approved for payment of $25,000 based on the loss of at least two ADLs ((bathing and dressing) for 30 consecutive days.  

6.  On 23 August 2011, she submitted an appeal (not available for review with this case).  However, on 1 September 2011, her appeal was denied.  By letter, an official at the Prudential Office of TSGLI informed her that: 

	a.  The Army completed evaluating her TSGLI claim but could not approve payment of her claim for the inability to perform ADLs due to other traumatic injuries (other than traumatic brain injury) beyond 30 days.  

	b.  She was previously awarded a $25,000 benefit for the loss of ADLs due to other traumatic injuries for 30 days.  Her claim for payment beyond 30 days was not approved because her loss did not meet the standards for TSGLI.  To qualify, a claimant must have been unable to independently perform at least two ADLs for at least 30 consecutive days.  The claimant is considered unable to perform independently only 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).  Her inability to perform two or more ADLs for at least 30 days must also have been certified by a medical professional.

7.  On 28 September 2011, she submitted an appeal (not available for review with this case).  However, on 18 October 2011, her appeal was denied.  By letter, an official at HRC informed her that the Army TSGLI program office had reconsidered the decision of her previous claim.  At that time, they were unable to overturn the previous adjudication.  The documentation provided did not indicate she met the TSGLI standards for loss of ADL.  A Soldier may be considered to have ADL loss if the Soldier was incapable of performing that activity if ADL assistance was not provided.  If the Soldier is able to perform the activity by the use of adaptive measures or equipment (such as a PDA, cane, crutches, wheelchair, or the ability of other limbs of the body, etc.), then the Soldier is considered able to independently perform the activity.

8.  On 12 January 2012, she submitted yet another appeal (not available for review with this case).  However, on 17 January 2012, by letter, HRC informed her that the TSGLI office conducted a review of her appeal request.  Based on her appeal and the documents she provided she did not meet the TSGLI standards for additional loss of ADLs.  The medical documents did not indicate her physical injury would render her incapable of performing the ADLs of bathing, dressing, or toileting that are covered by TSGLI standards.  

9.  On 4 April 2012, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions below.  The MEB recommended referral to a physical evaluation board (PEB).  She was counseled and disagreed with the findings.  Her rebuttal was considered but the original findings were affirmed:

Condition
Met retention standards 
Did not meet retention standards 
1.  Right brachial plexopathy, secondary to thoracic outlet syndrome, status post first rib resection brachial plexus neuroplasty and scalenectomy 

X
2.  Left upper extremity paresthesia's, weakness secondary to thoracic outlet and likely mild left brachial plexopathy

X
3.  Lumbar strain
X

4.  Raynaud's phenomenon
X

5.  ADHD inattentive type
X

6.  Recurrent migraine headaches
X

7.  Bilateral planter fasciitis
X

8.  Left cubical tunnel syndrome
X

9.  Left carpel tunnel syndrome
X

10.  On 12 September 2012, an informal PEB convened. 

   a.  The PEB found the applicant's conditions prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit due to "paralysis of right lower radicular group listed as right upper extremity listed as right brachial plexopathy, secondary to thoracic outlet syndrome, status post first rib resection brachial plexus neourplasty and scalenectomy" (rated at 70 percent) and "paralysis, left ulnar nerve, listed as left upper extremity paresthesias, weakness secondary to thoracic outlet syndrome and likely mild left brachial plexopathy" (rated at 10 percent).

	b.  The PEB also considered her other conditions, but since they did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended the applicant’s permanent retirement with a combine disability rating of 100 percent. 

	c.  On 1 October 2012, the applicant was counseled by a PEB Liaison Officer who explained her rights, the disability process, the MEB process and how to appeal; the PEB adjudication; the difference between an informal and formal PEB; and the role of the U.S. Army Physical Disability Agency (USAPDA).  She elected to concur with the PEB's findings and recommendation and waived her right to a formal hearing.  

	d.  On 8 November 2012, the USAPDA approved the PEB's findings and recommendations on behalf of the Secretary of the Army.  

11.  The applicant retired on 30 January 2013.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 3 years, 8 months, and 17 days of active service during the referenced period.  

12.  On 13 January 2014, in response to the applicant’s request for reconsideration, HRC notified her that her claim was previously denied at the initial, reconsideration, and appeal levels and that if she disagreed with the decision, she could appeal to this Board or file her petition in a court to contest this decision. 
13.  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 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.  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.

14.  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.

15.  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 medical records she provides, together with her narrative summary, MEB, and PEB, show she was injured in a fall from a tactical vehicle while in training at Fort Sill, OK.  She was later diagnosed with thoracic outlet syndrome.  She reported weakness and radiculopathy symptoms in the right arm/hand.  An examination in March 2010 showed minimal neuropathy suggesting thoracic outlet syndrome.  

2.  She underwent thoracic outlet syndrome surgery in August 2010, including first rib resection, scalenectomy, and brachial plexus neuroplasty.  Following surgery she initially had no motor function of the right hand and decreased strength in the right arm.  Her nerve damage was later determined to be permanent.  In September 2010, she reported that her ADLs were improving, and the occupational therapy assessment was that she was independent in ADLs with compensatory strategies.  The claim is for ADL loss ongoing from January 2010.  There is no evidence in the record of ADL impairment prior to surgery.  It is reasonable to presume that ADLs were impaired in the immediate post-operative period. 

3.  She was approved for payment of $25,000 based on loss of ADLs for 30 consecutive days.  This payment was based on the fact that her injury pattern, an isolated, but moderately complicated single limb injury in an otherwise uninjured Soldier, is generally sufficient justification for payment for a period of 30 days.  She was ultimately entered into the disability system.  An informal PEB recommended permanent retirement with a combined rating of 100 percent.  Accordingly, she retired by reason of disability on 30 January 2013.  

4.  Although she may have had difficulties with some ADLs, it is a reasonable expectation that a Soldier is capable of adopting, beyond 30 days of injury, adaptive behaviors to accomplish all activities of daily living in a modified independent manner in coping with a single limb injury.  Her records do not support ADL loss to the 60 day milestone.  If the Soldier is able to perform the activity by the use of adaptive measures or equipment (such as a cane, crutches, wheelchair, or the ability of other limbs of the body, etc.), then the Soldier is considered able to independently perform the activity.

5.  In order to qualify, the applicant must have been unable to independently perform at least two 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).  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.  

6.  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 to perform 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 no basis for granting 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)                                         AR20150001240



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ABCMR Record of Proceedings (cont)                                         AR20150001240



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