RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-00565 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI) claim be approved. APPLICANT CONTENDS THAT: Though counsel, he could not perform at least two of the six Activities of Daily Living (ADLs) for 120 consecutive days. His TSGLI claim and subsequent appeal were denied. His original claim was submitted on Aug 31, 2012 and denied on Nov 15, 2012. The Board stated the following reasons for its denial: “your claim for the inability to perform activities of daily living (ADLs) due to traumatic injury (other than traumatic brain injury) was not approved because your loss did not meet the standards for TSGLI.” Reconsideration was filed and denied on Jan 31 2014 with the stated reason of: “The medical documentation you submitted did not indicate that your injuries rendered you incapable of performing the ADLs that are covered by TSGLI standard.” These decisions were incorrect as the applicant suffered an inability to independently perform activities of daily living for at least 120 consecutive days’ which qualifies him for $100,000.00. The applicant’s injuries and ADL loss are well documented and supported by medical information. It shows his specific injury of Hawkins III talus fracture dislocation with comminution and avulsion fracture of the distal fibula and illustrates an extensive timeline of treatment including a surgery and many months of medical treatment. The pain and restriction lasted through at least April 2012. He could not preform the activities of bathing and/or dressing. He continued to require assistance with dressing, especially with pants, socks and shoes. He also required assistance with bathing, especially bathing and drying his lower extremities, drying and balance. Although not noted specifically at the time of the event (except for slight references), Dr. Hopkins, supplemented the certification and testified that, the applicant, did in fact, need assistance with bathing and dressing. All other references have been provided by licensed medical providers, physical therapists and other medical professionals -- in short, all the types of valid information referenced in the denial letter. This information supports the applicant’s inability to bathe or dress independently for at least 120 days. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of Staff Sergeant. On 4 Dec 11, the applicant fractured his ankle in a motocross accident. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR) and BCMR Medical Consultant which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPFC recommends denial indicating there is no evidence of an error or an injustice. Based on the eligibility criteria outlined in CFR Title 38 9.20 and the recommendation of their physicians’ review of the original claim and appeal, the applicant’s TSGLI claim does not meet the TSGLI eligibility criteria for payment of ADL loss for 120 consecutive days or lessor payment threshold. In order to qualify for TSGLI, there must be a traumatic event, as defined by the TSGLI law, which caused physical damage to the body resulting in a scheduled loss. In this case, there is no issue with the traumatic event element; however, the physicians that reviewed the original claim and appeal package disagreed with the lawyer’s doctor with regards to the applicant meeting TSGLI criteria for ADL loss (bathe and dress) for any payable threshold. The burden of proof is on the applicant to demonstrate that he suffered a scheduled loss meeting criteria defined by the TSGLI regulation. After reviewing the original claim and appeal, their position remains firm that the applicant does not meet TSGLI criteria for ADL loss due to OTI for any payable threshold. Neither the original nor the appeal was arbitrarily denied. Even though he was non-weight bearing on the left leg for three months, there is no objective evidence that he was unable to bathe and dress independently. The applicant submitted a TSGLI application claiming the inability to perform the ADLs of bathing and dressing (due to other traumatic injury (OTI)) for the period 4 Dec 11 to 23 Apr 12. The physician certifying the ADL loss is a doctor used by the applicant’s law firm to prepare the TSGLI claim. The doctor indicates on the claim form that he has not observed the applicant’s loss, but has reviewed his medical records to determine the loss claimed. The physician, from USAFSAM/OET, that reviewed the initial TSGLI and medical records said the following: “I’ve reviewed the documents provided regarding the TSGLI claim for …. Based on those documents, I cannot support the claim for loss of ADLs because I cannot support that he required assistance to dress. It seems reasonable to me that he could have managed dressing himself while seated and there is minimal information about any protective footwear that would possibly require assistance in putting on. Being non-weight bearing can contribute to be dependent, but this seems to be the only reason for claiming loss of ADLs.” The physician, from AFPC/DPFDI, that reviewed the appeal package and original claim documents said the following: “… sustained a left fracture while doing motor cross on 4 Dec 11. He had ORIF (open reduction internal fixation) of the fracture the same day. He was discharged from the hospital on 6 Dec with a front wheeled (2 wheels) walker and instructed to remain non-weight bearing on the left leg. He was directed to begin left leg weight bearing on 12 Mar 12. … is claiming he required help for bathing and dressing from the day of injury through 23 Apr 12. There is no indication whatsoever that … could not bathe or dress on his own with a left leg ankle fracture. While the ADLs would have been easier with assistance, there is no indication … was unable to bathe or dress and required assistance. Recommend DENIAL of this appeal.” Based on this medical review, the appeal authority (AFPC/DPFD) denied the appeal. A complete copy of the AFPC/DPFC evaluation is at Exhibit C. BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice. They concede that likely during the first week to 10 days following the applicant’s surgical treatment, the applicant was required to exercise extreme caution in avoidance of getting his surgical site wet and avoidance of any weight-bearing. However, following this period, the record indicates the applicant was an eager and active participant in his physical therapy program; as indicated by his early inquiry on when he may resume certain activities. His surgeon was pleased with his progress, although there was some early evidence of delayed healing of a small segment of his surgical wound; which was treated with daily wet- to-dry dressing changes until healed. They do not find reason to doubt the truthfulness and sincerity of the applicant’s surgeon in completing the necessary document to support the applicant’s desire for the TSGLI benefit. However, taken in the context of the availability of recognized measures to facilitate certain activities of daily living (ADLs) for individuals undergoing lower extremity surgery, they opines use of such measures would mitigate the applicant’s need for the physical or stand-by assistance another individual; instead, proving he could have reasonably performed his dressing and bathing activities prior to the reaching the qualifying 30 consecutive days of alleged impairment in ADLs. The devices commonly prescribed and demonstrated by an occupational therapist in most accredited medical facilities prior to discharge of the patient and with which the patient must demonstrate the capability to perform necessary maneuvers, e.g., bathing [entering and safely exiting a shower], pulling up pants, and putting on socks and shoes prior to discharge. It should also be noted that the applicant’s upper extremities, hips, and spine were not involved in his injuries or surgical treatment, and, thus, should not have interfered with his ability to perform forward cervical and thoracolumbar flexion, hip and knee flexion, reaching, and grasping movements which are attendant with dressing without affecting his left ankle and foot. They opine the applicant has not met the burden of proof of error or injustice to warrant the desired change of the record. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, they contend that both AF and Medical Advisories ignored the opinion furnished by the certifying physician, who unambiguously certified the applicant’s ADL loss for 120 days. The preponderance of evidence (which was also seemingly ignored) favors a full award of benefits. The advisory opinion, without foundation, inexplicably states that, “[t]here is no indication whatsoever that applicant could not bathe or dress on his own with a left leg ankle fracture.” This conclusion is simply unsupported by the medical evidence and is contrary to the medical certification furnished in this case. This is an arbitrary denial of benefits in a case where the Servicemember required assistance to perform both ADLs. He could not independently perform those ADLs safely without assistance. We assume it is not the wish of the AFBCMR that Servicemembers recovering from a traumatic injury should risk re-injury during their recovery by forgoing assistance to safely perform ADLs. That would seem to be bad public policy and contrary to the purpose of the TSGLI program. The applicant reasserts the arguments, facts and evidence outlined in the letter to the AFBCMR dated January 27, 2015 in support of his claim. Assuming the claim continues to be denied the applicant intends to press his claim in federal court, and will seek attorney fees and cost in addition to the underlying benefits for his wrongfully denied claim. 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 injustice. We took notice of the applicant’s complete submission, to include rebuttal comments, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR) and BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2015-00565 in Executive Session on 17 Nov 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00565 was considered: Exhibit A. DD Form 149, dated 17 Jan 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFC, dated 5 Mar 15. Exhibit D. Memorandum, BCMR Medical Consultant, dated 6 Oct 15. Exhibit E. Letter, SAF/MRBR, dated 7 Oct 15. Exhibit F. Letter, Applicant, dated 15 Oct 15.