RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01167 COUNSEL: HEARING DESIRED: NOT INDICATED APPLICANT REQUESTS THAT: His Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI) application be approved and he be paid $100,000 for the period of 20 Feb 08 to 20 Aug 08. APPLICANT CONTENDS THAT: The applicant thru counsel states that on 20 Feb 08, he fell 15 to 16 feet while performing an aircraft inspection. He injured his left shoulder, left wrist and knees and received emergency treatment that same day. He was discharged with a sling and restriction of no lifting. After his fall, he was diagnosed with a fractured humorous with possible torn ligament. He was recommended for physical and occupational therapy 3 times per week for 8 to 12 weeks. Under the TSGLI guidelines, a claimant is considered unable to perform an activity independently if he/she requires at least stand-by assistance, physical assistance or verbal assistance to perform such ADL. In this case, he required at least stand-by and physical assistance with bathing and dressing. His medical provider certified his inability to perform at least 2 of the ADL for over 90 consecutive days and that he required the assistance of another person to help him bathe from 20 Feb to 20 Aug 08. He was unable to bathe and dress independently from 20 Feb to 20 Aug 08. The medical records contain notations from his medical providers attesting to the loss of the Activities of Daily Living (ADL) and a timeline of treatment. He met the legal requirements for payment of TSGLI for the loss of the ADL for a period of 120 days as a result of a traumatic injury. On 19 Aug 08, he continued to have difficulty with the ADL. Despite numerous non-surgical efforts to alleviate his pain, he ultimately required surgery on 22 Jun 09 which resulted in additional recovery time and loss of the ADL. His claim was first denied on 27 Jun 13 and no reasoning was given except that the medical documentation provided did not indicate the loss met the standards for TSGLI. On 10 Oct 13, his request for reconsideration was denied. The reason was that the medical documentation did not support he was unable to perform at least 2 of the 6 ADL for at least 30 consecutive days. His claim for ADL benefits was arbitrarily denied, even though a medical professional provided a Part B form affirming that he met the criteria for ADL coverage. The Air Force denied his claim and did not adequately advise him of the reason for a denial or factual justification for the denial in light of the preponderance of the evidence in support of awarding benefits in this case. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to NGB Form 22, Report of Separation and Record of Service, the applicant was discharged from the West Virginia Air National Guard (ANG) on 30 Jul 10. According to an emergency department report dated 20 Feb 08, he was treated and diagnosed with left proximal humorous fracture, bilateral knee contusions and left wrist sprain. His left arm was placed in a sling and he was discharged with a prescription for pain medications. In a letter dated 27 Jun 13, the Office of Servicemembers’ Group Life Insurance (OSGLI) advised the applicant his request for TSGLI was denied. His claim for the inability to perform the ADL due to traumatic injury was not approved as the medical documentation provided did not indicate the loss met the standards for TSGLI. The applicant was advised he could submit an appeal within one year. AIR FORCE EVALUATION: AFPC/DPFC recommends denial. On 5 May 05, Public Law 109- 13 established a traumatic injury program designed to provide financial assistance to service members during recovery from a serious traumatic injury (not necessarily as a result of combat). TSGLI is a rider to the SGLI policy. TSGLI pays a monetary benefit from $25,000 to $100,000 for covered losses that are incurred by the member as a result of traumatic injury. Code of Federal Regulations (CFR) Title 38 Para 9.20 prescribes that each service certifies whether a service member was insured under SGLI and whether they sustained a qualifying loss. The TSGLI loss criteria are prescribed in the TSGLI Procedures Guide. A member is considered to have a loss of ADL if the member requires assistance to perform at least 2 of 6 ADL (eating, bathing, dressing, toileting, transferring and continence). Payment for loss of ADL due to traumatic injury other than brain injury is paid as follows: $25,000 at the 30th consecutive day, an additional $25,000 at the 90th consecutive day, and an additional $25,000 at the 120th consecutive day. On 20 Feb 08, he fell down the crew entrance ladder of an AC- 27 aircraft resulting in a fracture of the left arm (non-dominant) with labial tear. He submitted a TSGLI application claiming the inability to perform the ADL of bathing and dressing for the period of 20 Feb to 20 Aug 08. The physician certifying the ADL loss indicates on the claim form that he had not observed the patient’s loss but reviewed the patient’s medical records to determine the loss claimed. There is no issue with the traumatic event; however, the physicians that reviewed the original claim and appeal packages disagreed with the applicant’s physician with regard to the applicant meeting the TSGLI criterion for ADL loss (bathe and dress) for any payable threshold. The physician, from USAFSAM/OET, that reviewed the initial TSGLI and medical records stated the following: "I can support his claim for loss of ADL (bathe) from 20 Feb 08 to 21 April 08. From the records, he returned to work within one week after the accident and beginning 21 April could use his left (non-dominant arm) for minimal activities. The therapy notes mention limitations with self-care ADLs, but the ROM measurements and treatment (sling only with no mention of movement restrictions) suggest that he had the capacity to dress himself. Gripping and reaching right sided body parts (during shower) is possible for requiring assistance." The certifying official denied the claim based on the doctor's review that only one ADL (bathing) met TSGLI loss criteria for a minimum of 30 consecutive days. The AFPC/DPFDI physician that reviewed the appeal package and original claim documents said there was no direct evidence in the medical record that the applicant could not dress himself. He stated the applicant had persistent limitations in range of motion in the left shoulder as well as weakness of grip and these symptoms extended well past 20 Aug 08 but they did not create a medical necessity for assistance with dressing and bathing for even 30 days, let alone the 120 days which the applicant claims. When the applicant’s Doctor signed the claim form, he indicated he did not observe the applicant’s loss. The burden of proof is on the applicant to demonstrate that he suffered a scheduled loss as a result of his traumatic event. After reviewing the original claim and appeal, DPFC’s position remains that he did not meet the TSGLI criteria for ADL loss for any payable threshold. It is reasonable to believe that having an arm in a sling may make bathing and dressing more difficult; however, it is also reasonable to believe that he would be able to use the uninjured arm to perform the basic functions albeit at a slower pace. Based on eligibility criteria outlined in CFR Title 38 9.20 and Emergency Supplemental Appropriations Act for Defense, the Global War on Terror and Tsunami Relief, 2005 (Public Law 109-13), the applicant’s claim does not meet the TSGLI eligibility criteria for payment of ADL loss for 120 consecutive days or a lessor payment threshold. A complete copy of the DPFC evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A sworn affidavit from the applicant’s wife/caretaker is provided. She provided direct physical and stand-by assistance to the applicant following his injuries and was with him on a daily basis. She verifies the facts outlined by the applicant’s medical provider in certifying the applicant’s 120 days of loss in ADL and that the applicant still requires some assistance with the ADL due to the ongoing nature of his injuries. The preponderance of the evidence supports the applicant’s claim for the inability to bathe and dress independently for at least 120 days. Accordingly, the Board should find in his favor for TSGLI benefits in the amount of $100,000. Should the Board desire to take testimony in this matter, they would be willing to accommodate that upon request. The applicant’s complete submission, with attachment, 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. After a thorough review of the available evidence and the applicant’s complete submission we are not persuaded the applicant’s TSGLI application should be approved. We note the applicant’s spouse provides a sworn affidavit stating the applicant loss 120 days of ADL and still requires assistance due to the ongoing nature of his injuries. However, in our opinion, substantial evidence has not been presented to successfully refute the assessment of his case by the Air Force Office of Primary Responsibility (OPR). Therefore, we agree with the opinion and recommendation of the Air Force OPR and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of either an error or an injustice. Absent persuasive evidence that he was denied rights to which he was entitled, we find no basis to recommend granting the relief sought in this application. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-01167 in Executive Session on 26 Feb 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 18 Mar 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFC, dated 15 May 14. Exhibit D. Letter, SAF/MRBR, dated 5 Jun 14. Exhibit E. Letter, Counsel, dated 18 Jun 14, w/atch. Exhibit F. Letter, Counsel, dated 5 Aug 14.