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BOARD FOR CORRF( “TION OF NAVAL RECORDS

loTLIP Ie RO SUITE 100°
SOLU. Ara PAE ee uu

ARLINGTON VA 22204-2490

Chairman, Board for Correction of Naval Records
Secretary Of the Navy

SE

(a) Title 10 U.B.G.. 1552

  

(1) DD Form 14° w/attachments

(2) Advisory Opinion (A/O) from Headquarters Marine Corps
(HOMC) meme Traumatic Servicemembers’ Group Life Insurance
(TSGLI) Co¢rdinator, Wounded Warrior Regiment of 16 Apr
2014

(3) Chronologi¢al Record of Medical Care of 24 Aug 2009 and

Radiology j.esults ico fof 25 Apr 2009

Statement rom of 27 Apr 2014

Statement ‘rom of 25 Mar 2013

)

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) Chronologi/:al Records of Medical Care
)

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Applicatioi for TSGLI Benefits

Title 38 Code of Federal Regulations Section 9.20 Traumatic

injury prosection guidelines of 1 Jul 2008

9) TSGLI Clain Certification Worksheet

10) Prudential Office of Servicemembers’ Group Life Insurance
(OSGLI) qenial letter of 2 Mar 2012

1) Findings jof the Physical Evaluation Board Proceedings ot
18 Jan 2(¢12

(12) “A Call Jor Help” memo of 6 Jan 2014 from eae ae
Dc medical separation date : arch 2012

(13) Appeal letter to prudential, OSGLI from Veteran Service
officer Df 2 Aug 2012

4) Regiment)il Surgeon TSGLI routing sheet of 27 Sep 2012

5) HOMC mem> of 1 Oct 2012

6) Appeal l2tter to Appeals Board, Claim No. 11235539 from

of 1

veteran 3ervice Officer GRRE RRR ASE F 12

Nov 2012

(17) Secretary of the Navy Council of Review Boards memo 1770
TSGLI 126 of 14 Dec 2012

(18) Secretary of the Navy Council of Review Boards memo 1770
CORB 003 of 12 Feb 2013

(19) Department of Veteran Affairs, Medical Disabilities of 28
Dec 201:

(20) Persona) Letter by eae = Oct 2012

(21) TSGLI Rusponse letter from uA one 27 At
2014

(22) 29° a/o |Erom HOMC, TSGLI Coordinator, of 29 May 2014
1. Pursuant to the pr¢visions of reference (a) Petitioner, filed
enclosure (1) with thif: Board requesting, in effect, that the
applicable naval recori| be corrected to show that he was entitled to
monetary compensation 7m the form of Traumatic Servicemembers’ Group
Life Insurance (SGLI) [or a Other Traumatic Injury which resulted in
the loss ot Activities) uf Daily Living (ADT) for a period in excess of

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thirty days, from injuies he sustained in a fall, on active duty, in
the Marine Corps on 25 April 2009.

2. The Board, consisting of Messrs. zsalman, George and Ruskin,
reviewed Petitioner's jJallegations of error and injustice on

30 June 2014 and, pursuant to its regulations, determined that the
corrective action indicated below should be taken on the available
evidence of record. lTocumentary material considered by the Board
consisted of the enclcsures, naval records, and applicable statutes,

regulations and policies.

3. The Board, having reviewed all the facts of record pertaining to
Petitioner's allegations of error and injustice, finds as follows:

a. Before apply-ng to this Board, Petitioner exhausted all
administrative remedi}:s available under existing law and regulations
within the Department] of the Navy.

b. In early 2003, Petitioner served as 4 corporal (Cpl) in the
U.S. Marine Corps, stationed with the Marine Special Operations
Command (MARSOC), in Twentynine Palms, California. On 25 April 2009,
while conducting training in the Field Radio Operators Course, he fell
approximately 25-30 feet down the side of a rocky mountain and claims
to have sustained mujtiple traumatic injuries, enclosures (3) and (4).°

c. Immediately|after the fall, Petitioner was sent to the
Twentynine Palms Navél Hospital and claimed to be treated for multiple
lacerations, given %| rays and to have been diagnosed with a Grade 3
concussion, enclosurt:s (3) and (4).? However, he claims that he was
later released to hij; command and given the “ok” to continue training.

d. Within the jiext 4 weeks, Petitioner graduated from the Field
Radio Operators Course and transferred to Camp Lejeune, North Carolina
pending orders back |-o MARSOC. Petitioner stated that for the next
seven to eight months, he continued to train, believing that he was

 

1 petitioner states in h)s letter dated 27 April 2014 that “J wasn’t just dealing with
the right shoulder {pain . I was passing kidney stones, urinating blood, in immense
amount of pain all over \jy body, I had a fractured [my] T-12 and [there were] discs
bulging in [my] L3, L4, land L5, nerve damage in my left leg, back, and right
shoulder/arm, testiculaz pain, and depression”, enclosure (4).

2 phe definition of a Grjide 3 level concussion, as defined by a Medical Dictionary, is
a loss of consciousness /for any period.
ok, just tattered and joruised. However, he stated that he continued
to have “.memory loss, broken back, tore everything in right shoulder,
nerve damage, kidney disease, seizures and more..loss of a creative
organ, numerous surgeries and a minimum of 37 days loss o£ 5
activities of daily living, all approved, witnessed, and signed off by
my doctor.”, enclosure (5). Furthermore, Petitioner states that he
continued to sech medical care and had multiple surgeries due to his

fall, enclosure (6).

e. On 3 October| 2011, Petitioner submitted a TSGLI* Application
to Prudential, Office|jof Servicemembers’ Group Life Insurance (OSGLI),
(the administrators o; TSGLI), requesting compensation for a 30 days
loss of ADLs‘ for am Cther than Traumatic Brain Injury (OTT) claim,
enclosure (7).

f£. On 18 January 2012, Petitioner received a Physical Evaluation
Board which recommend):d that he be separated from active duty with
severance pay due to yeing unfit for service, due to his medical
issues, enclosure (8)}.

g. On 2 March (012, Petitioner's request for TSGLI was
disapproved by Prudential OSGLI, concluding that his loss was not 4
direct result of a traumatic event,’ enclosure (10), a claim that
Petitioner disputes, jenclosure (13).

h. On 21 March| 2012,° HOMC via the TSGLI Claim Certification
Worksheet, ultimately disapproved the claim for a 30 days loss of ADLS
and hospitalization que to a lack of medical evidence supporting
Petitioner's claim t}.at his loss was a direct result of a traumatic

event, enclosure (La

i. Therefore, on 16 March 2012, he was medically separated with
an honorable discharije, enclosure (12).

j. On 2 August 2012, Petitioner appealed the denial by
Prudential OSGLI to }QMC stating that under the VA's TSGLI Procedural

 

3 mgcaLI is designed to piovide financial assistance to service members during their
recovery period from a sirious traumatic injury. Also, it is intended to provide
immediate cash assistanc:: to cover the expenses associated with the changes that

accompany a traumatic injury.

‘4 Bathing, dressing, toileting, transferring and eating. The requirement is to have

only two losses of ADLs.

5 under Title 38 CFR 9.2), a traumatic event is defined as “the application of
external force, violence, chemical, biological or radiological weapons, or accidental
ingestion of contaminated substance causing damage to a living being” by the OSGLI,
enclosure (9)

6 Mote: In enclosure (2), the advisory opinion states, the 21 March 2012 disapproval
letter is a typographic: 1 error and 2 March 2012 is the correct date of disapproval.
Guide, the definitionjof a traumatic event is not only ™..the
application of externi.1 force..[but,] the event must involve a physical
impact upon an indivillual. Some examples would include: an airplane
crash, a fall in the bathtub, or a brick that falls and causes a
sudden blow to the hed”, enclosure (13). His appeal was denied.

k. On 27 Septenper 20iz, Setitiones submitted 2 reconsideration
request to HOMC, via the TSGLI Section and the Wounded Warrior
Regimental Nurse for an OTI and a review of 30 days loss of ADL'S,
enclosure (14). On lj October 2012, HOMC @isapproved his request again
stating the medical dxcumentation Petitioner provided did not indicate
that the loss met the minimum TSGLI standard, enclosure (15) and (8).

1. On 12 November 2012, Petitioner then appealed the
reconsideration deniel to the Presiding Officer, TSGLI Appeal Board,
via a letter signed Hy himself and a Veteran Service Officer (VSO).
The letter stated that Petitioner and the VSO disagreed with the
HOMC’s determination) and they claim that Petitioner's injuries did,
in fact, meet the mirimum TSGLI standards, enclosure (16). On 14
December 2012, the TSGLI Appeals Board denied the claim, stating that,
“the preponderance oO} evidence does not support compensation for 30
days loss of ADLs. hegarding your claim for TBI characterization, the
medical professional has not indicated on your claim that your losses
were due to a TBI anji there is insufficient evidence to support that
you were not able to do your ADLs after your shoulder surgery due to a
TBI”, enclosure (479

m. Petitioner |appealed again to the Director, Navy Council of
Review Boards. On 1j2 February 2013, the Director denied his
reconsideration requ2st based solely on that fact that his appeal did
not present new and’ Inaterial evidence that was not already considered,
enclosure (18).

n. Finally, on 22 May 2013, Petitioner submitted a BCNR request
claiming that due tc his fall while in the Marine Corps, he suffered a
grade 3 concussion, TBI, memory loss, a broken back, tears in his
right shoulder that required surgery, nerve damage, kidney disease,
seizures, loss of a creative organ and had a minimum of 37 days of
loss for 5 ADLs; al] approved, witnessed and signed off by his doctor,
enclosures (1) and [|5). Additionally, Petitioner’s spouse submitted a
letter stating that| Petitioner is 100% disabled by the VA, enclosure

 

7 under Title 30 CFR 9.20 - Traumatic Injury Protection, you must meet all the of
following requirements 0 order to be eligible for traumatic injury protection
benefits: 1) You must bi: a member of the uniformed services who is insured by SGLI on
the date you sustained | traumatic injury, 2) You must suffer a scheduled loss that is
a direct result of a trvumatic injury and no other cause, 3) You must survive for a
period not less than sejren full days from the date of the traumatic injury, 4) You
must suffer a scheduled loss within two years of the traumatic injury, and 5) You must
suffer a traumatic injucy before midnight on the date of termination of your duty
status.

oh
(19), and that she, his caregiver, is certified by the VA asa
level provider," enclosure (20).

o. Enclosure (2) provided an unfavorable advisory opinion

stating that the medil:al documentation provided does not indicate the
member's loss met the TSGLI minimum standard.

p. On 27 April 7014, Petitioner responded to the A/O by
providing the medical) documentation by both the VA and from his

personal physician that states that he met all the requirements under

the TSGLI program requirements, including and that he incurred an OTI

due to an injury while in the military, +s unable to perform five ADLS
and that he submitted his claim within the 730 day deadline for an

TSGLI claim, enclosure (21).

gq. On 29 May 2014, HOMC, TSGLI Coordinator, Wounded Warrior
Regiment, enclosure 22), responded to Petitioner's rebuttal to the
original a/oO. Althot.gh HOMC state that they considered Petitioner's
additional informati(n, they still providing an unfavorable A/O and
concurred with their original opinion without further explanation.

CONCLUSION:

Upon review and consideration of all the evidence in the record, the
Board concludes that Petitioner's request warrants favorable action.
The Board believed taat Petitioner presented sufficient evidence to
justify TSGLI paymert since he ultimately provided the Board with
medical documentaticn, personal statements, including the Veteran
Administration's firdings that he is 100% disabled and his spouse’s
personal statement to prove he had met all the requirements under the
TSGLI guidelines to receive TSGLI compensation. Therefore, the Board
finds that in light}jof these circumstances, that it is only just and
fair for the Navy to grant his request. Accordingly, the Board
concludes that the ‘ecord should be corrected to show that Petitioner
submitted, in a timely manner, 4 TSGLI claim and that his claim was in
compliance to the T3GLI guidelines to award him $25,000 for his OTI
claim.

RECOMMENDATION :

That Petitioner's naval record be corrected, where appropriate, to
show that:

a. Petitioner is entitled to receive TSGLI OTI payment in the
amount of $25,000 cue to his traumatic injury that occurred while on
active duty in the in the United States Marine Corps.

 

® pnccording to the Vet/-rans Administration, level tier 3 is defined as the highest
level that will requir}: a caregiver to provide a maximum of 40 hours of care per week.
dey Pursuant to Gectidn 6(c) of the revised Procedures of the Board

for Correct
Section 723

ion of Nava: Records (32 Code of Federal Regulations,
.6(c)) it is certified that quorum was present at the

Board's review and del)berations, and that the foregoing is a true and
complete record of the|Board’s proceedings in the above entitled

matter
Mat

Recorder

i (
f
ROBERT D. ZSALMAN i r.

P77) PR

}
| ip
MONTGOMERY
acting Recorder

  
 
 

5. The foregoing action of the Board is submitted for your review

and action.

Reviewed a

ROBERT L.

  

TR 8S aca

ROBERT D. ZSALMAN
Acting Executive Director

Approved: Sm ahlachsd mM canara / ) a 2/lF
[

WOODS

Assistant General Counse!

(Manpower

and Reserve A fairs)

1000 Navy Pentagon, Rm 'D548
Washington, DC 20350-10 0