RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00608 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: He receive additional payments under the Traumatic Servicemembers’ Group Life Insurance (TSGLI) in the amount of $50,000 for an Activities of Daily Living (ADL) loss of at least 90 days. APPLICANT CONTENDS THAT: He should be awarded TSGLI benefits for 90 days instead of 30 days. He sustained multiple injuries on 19 November 2009, when a T-Barrier fell on top of him. Subsequently, his injuries resulted in him requiring back surgery on 15 October 2010 and 7 February 2011. Following the first back surgery he required assistance with activities of daily living (ADLs), i.e., bathing, dressing, toileting, and transferring. After his second back surgery he required assistance with his ADLs for 90 consecutive days during the period of 7 February 2011 through 31 May 2011. Specifically, he was not able to dress and transfer on his own so his spouse assisted him with those two ADLS for at least 90 days. Nevertheless, he was only awarded $25,000 TSGLI benefits due to incurring assistance for 30 days (ADLs). Contrary to the preponderance of supported medical evidence he was denied any further TSGLI benefits beyond his initial award. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant served in the Air Force Reserve in the grade of technical sergeant (E-6) during the matter under review. On 18 November 2009, according to Standard Form 600, Chronological Record of Medical Care, the applicant sustained injuries when he was knocked to his knees by a T-Barrier. On 23 December 2011, the applicant initiated a claim for TSGLI benefits. Specifically, the applicant indicated that during his deployment to Iraq the base came under indirect fire attack and a rocket landed close to him, causing a shockwave of the blast to knock him down. In addition, a T-Barrier weighing approximately 5 tons fell on him. On 4 September 2013, AFPC/DPFD notified the applicant that his TSGLI appeal was denied because medical documentation did not support that he was unable to perform at least two of the six ADLs for at least 60 consecutive days. On 24 March 2014, the applicant’s Family/Flight Medicine Physician anticipated his inability to be currently deployable or in the future and determined the applicant would not be able to fulfill any Air Force Specialty Code (AFSC) functionally in the Air Force currently or in the future. On 25 April 2014, an AF Form 469, Duty Limiting Condition Report, was initiated that placed duty and mobility restrictions upon the applicant, which precluded him from running one-half mile, 2 kilometer walk, push-ups, sit-ups and restricted him from Reserve participation for pay or points. On 25 September 2014, a Medical Evaluation Board (MEB) convened to evaluate the applicant’s fitness for continued military service due to his diagnosis of low back pain and cervicalgia, right shoulder pain, right hip issues, chronic Post-traumatic stress disorder (PTSD), obstructive sleep apnea (OSA), depression disorder not otherwise specified (NOS) and anxiety, cognitive disorder NOS and Post-concussion disorder. The board recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB). On 17 December 2014, an Informal Physical Evaluation Board (IPEB) convened and found the applicant unfit for continued military service and recommended he be permanently retired with a combined compensable disability rating of 80 percent. On 30 December 2014, the applicant agreed with the findings and recommendation of the IPEB and waived his right to a Formal Physical Evaluation Board (FPEB). On 28 January 2015, the applicant was relieved from active duty and retired in the grade of technical sergeant (E-6) per Air Force Instruction 36-3212 with a compensable percentage of 80 percent for physical disability, effective 29 January 2015. He was credited with 13 years, 3 months, and 25 days of active service for retirement. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR), which is attached at Exhibit C and F. AIR FORCE EVALUATION: AFPC/DPFC recommends denial. On 5 May 2005, Public Law 109-13 was signed by President Bush establishing a traumatic injury program designed to provide financial assistance to servicemembers during recovery from a serious traumatic injury (not necessarily as a result of combat). The insurance TSGLI is a rider to the member’s Servicemembers’ Group Life Insurance (SGLI) policy. Also, the Code of Federal Regulations (CFR) Title 38, in part, prescribes that each uniformed service will certify its own members for traumatic injury protection benefits based upon Public Law, and whether a servicemember, at the time of the traumatic injury, was insured under SGLI and sustained a qualifying loss. The payment thresholds for ADL loss, due to Other Traumatic Injury (OTI), are: 30 days - $25,000; 60 days - $50,000; 90 days - $75,000; and 120 days - $100,000. In this case, based upon the applicant’s records he was approved for the period of 7 February 2011 to 28 March 2011 for loss of ADL. Although, he wore a back brace for many months and needed assistance with dressing past 28 March 2011, there is no evidence he required assistance with any other of the ADLs. Based on eligibility criteria and the recommendation of the physicians’ review of the original claim and appeal, the applicant’s claim does not meet the TSGLI eligibility criteria for payment of ADL loss for 60 or 90 consecutive days. He does not meet the threshold of loss of two ADLs after 28 March 2011. Given the vague information about the incident on 19 November 2009, the medical reviewers believed the applicant’s back condition and surgery on 7 February 2011 may not be attributable to the T-barrier incident. However, if it is accepted the T-barrier incident caused the back injury, medical evidence does not support the applicant’s inability to perform ADLs to meet the TSGLI criteria for ADL loss beyond the 30-day threshold for which he was already paid. The applicant’s attorney submitted an appeal on behalf of the applicant for ADL loss through 90-days payment threshold. The appeal and original claim documents were made available to the TSGLI claim appeal authority and another medical review was completed. The doctors reviewing the appeal indicated there is no documentation provided that the applicant required assistance transferring until 31 May 2011. Since there is question as to whether the applicant’s back issue has anything to do with the injury in Iraq, in which case, he should not have received any settlement, this matter does not need to be compounded by approving any further payment he is not entitled to receive. A complete copy of the AFPC/DPFC evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel argues that evidence material to the claim was not considered, the relevant standards for providing ADLs loss were misapplied, and the applicant’s underlying traumatic injury was questioned although he received an initial payment of $25,000. The preponderance of the evidence in the applicant’s case proves he sustained at least 90 day ADL loss due to his traumatic injury and he should be awarded an additional $50,000. Specifically, the applicant provided a statement describing the assistance required by his wife during the period of 7 February 2011 to 28 March 2011, as well as, medical documentation indicating that he was not allowed to bend or twist during the same period. Also, he was unable to and restricted from dressing or transferring independently. The TSGLI guidelines require that servicemen be able to show by preponderance that they require assistance performing ADLs and not that it is impossible to perform ADLs. A complete copy of the applicant’s counsel response is at Exhibit E. AIR FORCE EVALUATION: BCMR Medical Consultant recommends approval. The applicant’s legal counsel contends that a preponderance of evidence establishes that the applicant was unable to perform at least two activities of a daily living from 7 February 2011 through 31 May 2011. This is based upon the evidence supplied by the treating neurosurgeon. The Board may accept this reasoning outright, but the doubts raised by previous medical reviewers warranted discussion. Although a preponderance of evaluations and treatment were directed at the applicant’s neck pain, latissimus dorsi, and hip/thigh, it cannot be ruled out that the events of November 2009 were related to the applicant’s need for cervical spine and lumbar surgery. A complaint of back pain is mentioned in two of the four Line of Duty Determinations and some of the medical entries; however, there are shared concerns as to whether the applicant’s lumbar spine surgery was related to the injuries sustained in November 2009. As noted, the chief complaints, diagnoses, and treatment early on and for much of calendar year 2010 were largely directed to his neck pain, lateral chest wall [latissimus dorsi] and hip pain. The fact that the applicant unlikely received an actual direct crushing injury to the neck or torso, did not require immediate medical treatment, and reportedly “felt fine although shaken at the time”, raises doubt, but does not rule out some undefined aggravating factor that convinced the surgeon to operate on his cervical spine and later lumbar spine. The record does indicate the applicant’s somatic [neck and back] pain improved following his surgical procedures and he underwent a MEB and was returned to duty. It is apparent the applicant’s other medical issues began to escalate, leading to another MEB and the decision to find him unfit for further military service. There are conflicting recommendations, in which one physician recommended the applicant receive relief, but only for the period of 7 February 2011 through 28 March 2011, another physician raised concern that the applicant’s lumbar surgery was not even related to the alleged injury incurred in Iraq, and a final review by AFPC/DPFC recommended denial of the additional benefit. Nevertheless, a neurosurgeon made entries on the applicant’s TSGLI application indicating he was injured in combat in the Middle-East during November 2009 and listed the reasons he was unable to independently perform certain ADLS due to post-op cervical fusion and post-op lumbar fusion. Specifically, the neurosurgeon noted the applicant was unable to bathe independently during the period of 15 October 2010 through 1 November 2010 and 7 February 2011 through 28 March 2011. Also, he was unable to dress independently from 10 October 2010 through 1 November 2010 and 7 February 2011 through 28 May 2011. In addition, he was unable to toilet independently from 15 October 2010 through 1 November 2010 and 7 February 2011 through 28 February 2011. Lastly, he was unable to transfer independently from 15 October 2010 through 30 January 2011 and 7 February 2011 through 31 Mary 2011. The applicant’s cervical spine surgery of October 2010 impairment fell short of the minimum qualifying 30 days of ADL loss and only met 1 of the 2 required ADLs losses. However, the applicant met the two qualifying ADLs following the second surgical procedure of 7 February 2011. The comorbid emotional factors of PTSD, panic disorder, and depression may have influenced somatic symptoms and surgical decision-making, thus, making this a difficult case to prove or disprove. If association is given to the lumbar surgical pathology, and procedure with the applicant’s injury of November 2009, along with consideration of the printed evidence from the treating neurosurgeon to be truthful, then rendering the benefit of doubt in the applicant’s favor is prudent. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel agrees with the BCMR Medical Consultant and reiterates that the applicant should be awarded an additional $50,000 in compensation for which he is eligible for under the TSGLI criteria for 90 days of ADL loss. A complete copy of the applicant’s counsel response is at Exhibit H. 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 an error or an injustice. The applicant is requesting award of TSGLI benefits for 90 days instead of 30 days. His assertions that he sustained at least 90 day ADL loss due to his traumatic injury and therefore should be awarded an additional $50,000 was noted. However, given the TSGLI ADL loss criterion, the vague information about the incident on 19 November 2009, coupled with shared concerns as to whether the applicant’s lumbar spine surgery was related to the injuries sustained in November 2009, corrective action is not warranted. We noted the BCMR Medical Consultant’s recommendation to grant, however, we disagree. For the reasons noted above and absent evidence that relevant standards for providing ADLs loss were misapplied we agree with the opinion and recommendation of AFPC/DPFC and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2014-00608 in Executive Session on 24 June 2015, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00608 was considered: Exhibit A.  DD Form 149, dated 7 February 2012, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFPC/DPFC, dated 8 April 2014, w/atch. Exhibit D.  Letter, SAF/MRBR, dated 9 January 2015. Exhibit E.  Letter, Applicant’s Counsel Response, dated 29 January 2015. Exhibit F.  Memorandum, BCMR Medical Consultant, dated 28  April 2015. Exhibit G.  Letter, SAF/MRBR, dated 15 May 2015. Exhibit H.  Letter, Applicant’s Counsel Response, dated 19 May 2015.