RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04721 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His disallowed Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI) claims be reconsidered. _________________________________________________________________ APPLICANT CONTENDS THAT: He was wounded in Baghdad, Iraq, when a dual-array Improvised Explosive Device (IED) struck his vehicle. He received a severe concussion, Traumatic Brain Injury (TBI), Post Traumatic Stress Disorder (PTSD), back and neck injuries (as well as fractured teeth, loss of hearing, and injury to nose/sinuses). His care for the first 18 plus months was disjointed and confused as there was no single point of contact for his care resulting in a dysfunctional and confused level of care. He was not enrolled in the Air Force Wounded Warrior Program (AFW2P) until March 2009, nearly two years after incurring his injuries; which resulted in his lack of awareness of the facilities, programs, options, and assets available. His records underwent a Medical Evaluation Board (MEB) on 15 March 2009, which indicated that he should not be returned to duty. On 14 May 2009, his records were evaluated by an Informal Physical Evaluation Board (IPEB), which recommended he be placed on the Temporary Disability Retired List (TDRL) with a 90 percent disability rating. He filed his first TSGLI claim for TBI in April 2009 and the second claim for inability to perform Activities of Daily Living (ADLs) in August 2009. His claims were subsequently denied. However, he feels his two claims meet the TSGLI eligibility requirements. In support of his request, the applicant provides a personal statement, and copies of Temporary Duty (TDY) orders, electronic communications, TSGLI denial letter, excerpt of TSGLI claim, Purple Heart Medal citation, Department of Veterans Affairs (DVA) letter, medical records, and a Defense Finance and Accounting Service (DFAS) letter. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who was relieved from active duty effective 13 October 2009 and placed on the TDRL effective 14 October 2009 in the grade of colonel (O-6), with a 90 percent compensable disability rating. The remaining relevant facts, extracted from the applicant’s master military personnel records, are contained in the Air Force evaluation at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPWC recommends denial (advisory opinion dated 8 February 2011). DPWC states that based on the eligibility criteria outlined in the TSGLI Procedures Guide, Version 2.4, dated 23 November 2010, and Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2205,(Public Law 109-13), the applicant’s claimed losses, in both TSGLI claims, do not meet the TSGLI eligibility criteria for payment. DPWC indicates that upon receipt of the applicant’s appeal, a thorough review of both of his claims was conducted. His claim for loss of hearing did not meet the criteria for hearing loss as the Audiologist’s report states the applicant’s air and bone conduction testing revealed hearing within normal limits bilaterally for frequencies through 2000 megahertz. His claim under hospitalization did not meet eligibility criteria because he was seen as an outpatient. The applicant’s second claim was for inability to perform ADLs (bathe, dress, transfer) due to Other Traumatic Injury (OTI) for at least 30 consecutive days. However, the loss must have occurred within 730 days from the traumatic event. The date of the applicant’s traumatic event was 28 April 2007. The cited ADL dates were from 1 July 2009 through 5 August 2009. Unfortunately, the cited loss does not meet the prescribed period as defined by the regulation. DPWC (additional advisory opinion dated 24 June 2011) states that while evaluating the applicant appeal, he simultaneously submitted an appeal package to AFPC/DPWCS and enclosed a third claim for the same traumatic event. On 11 March 2011, upon receipt of the needed medical documentation, their office requested the Air Force medical representatives (USAF-SAM/OEHT), make an assessment of the claim. They concluded the applicant does meet the TSGLI eligibility criteria for the inability to perform ADLs for at least 30 days due to OTI. Additionally, they further stated that “there is no evidence to suggest loss of 2 or more ADLs beyond 30 consecutive days.” Based on this evaluation, the applicant was approved for payment of $25,000 for the inability to perform two or more ADLs as a result of the surgery on 1 November 2007 due to the direct result of the traumatic event on 28 April 2007. The complete DPWC evaluations, with attachments, are at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response to the 8 February 2011 DPWC evaluation, the applicant indicates he understands the gravity of the Board’s task and realizes there is no true black and white answer to his problem; however, he asks that the Board apply a modicum of common sense to this issue. He is currently having a therapeutic pool installed at his house for aquatic therapy to allow his continued rehabilitation at home, as the Veteran Affairs treatment center is one and a half hours away and his out-of-pocket costs for local therapy is costing him approximately $150 plus per month, not including cost of transportation. The TSGLI funds would go toward offsetting some of the pool’s cost. The applicant’s complete rebuttal, with attachments, is at Exhibit E. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice in regard to the applicant’s claim for TSLGI compensation for hearing loss. After reviewing the evidence of record, we note the applicant’s appeal of his claim for inability to perform ADLs for at least 30 consecutive days was approved. Therefore, we will only address his request for TSLGI compensation for hearing loss. In that regard, we note that according to the Audiologist’s report, the applicant’s bone conduction test revealed hearing within normal limits bilaterally for frequencies through 2000 megahertz; therefore, his claim for hearing loss did not meet the criteria for TSGLI compensation. The applicant has provided no evidence showing that the Audiologist’s report is in error or invalid. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting relief. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04721 in Executive Session on 8 September 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-04721: Exhibit A. DD Form 149, dated 14 Oct 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPWC, dated 24 Jun 11. Exhibit D. Letter, SAF/MRBR, dated 1 Apr 11. Exhibit E. Letter, Applicant, dated 12 May 11, w/atchs.