RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02666

  XXXXXXXXXX				COUNSEL:  XXXXXXXXXX
	
						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The 9 April 2015 decision to deny his Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) appeal be reversed and his claim for 120 days' loss of ability to independently perform two or more Activities of Daily Living (ADL) be reinstated with an additional $75,000 (for a total of $100,000) award, or the maximum award the Board believes is justified by the available evidence.

APPLICANT CONTENDS THAT:

Counsel argues the applicant had a qualifying injury which required physical assistance to bathe and dress for at least 120 consecutive days from the date of the accident [2003], particularly while he was non-weight bearing, and through his surgery and recovery.  A physician certified and documented the applicant’s requirement for assistance on his TSGLI application.

In support of his request, counsel provides copies of the applicant’s TSGLI claim, treatment records pertaining to his injury, and various other documents related to his appeal.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 10 June 1988.

On 31 August 2010, the applicant was furnished an honorable discharge, and was credited with 22 years, 2 months, and 21 days of active service.

According to the TSGLI Program guide, the TSGLI program is an automatic provision under Servicemembers Group Life Insurance. TSGLI provides for payment to Servicemembers who are severely injured (on or off duty) as the result of a traumatic event and suffer a loss that qualifies for payment under TSGLI.  TSGLI is designed to help traumatically injured Servicemembers and their families with financial burdens associated with recovering from a severe injury.  TSGLI payments range from $25,000 to $100,000 based on the qualifying loss suffered.  ADL are routine self-care activities that a person normally performs every day without needing assistance.  There are six basic ADL: eating, bathing, dressing, toileting, transferring (moving in and out of bed or chair) and continence (managing or controlling bladder and bowel functions).  A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADL. If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior, the patient is considered able to independently perform the activity.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force office of primary responsibility (OPR) and the BCMR Medical Consultant, which are attached at Exhibits C and F. 

AIR FORCE EVALUATION:

AFPC/DPFCS recommends denial indicating there is no evidence of an error or injustice.  Based on eligibility criteria outlined in Code of Federal Regulations, Title 38, paragraph 9.20, Traumatic injury protection, the applicant’s TSGLI claim does not meet the TSGLI eligibility criteria for payment of ADL loss for the 60-day or higher threshold.  TSGLI is a rider to the SGLI policy and pays a monetary benefit from $25,000 to $100,000 for covered losses that are incurred by a member as a result of traumatic injury.

On 13 December 2003, the applicant was injured in a motorcycle accident, which resulted in a left comminuted femoral neck fracture, a right thumb metacarpal fracture, and lower extremity abrasions.  The applicant also complained of pain in the right shoulder but radiographs were negative.  His femur fracture was stabilized on 14 December 2003, by open reduction internal fixation.  Although records initially indicated no fracture of the right thumb, there is a comment in the inpatient record regarding a fractured thumb.  Based on an orthopedic note from 21 April 2004, it appears the applicant was found to have a fracture of the base of the first metacarpal.  This was treated with closed reduction and percutaneous pinning.  The thumb was then immobilized with a thumb spica splint.  On 19 March 2014, AFPC/DPFCS received a TSGLI claim on the applicant.  The claim was for the inability to perform ADLs from 13 December 2003 (date of injury) to 28 June 2004.  After a review of the claim form and medical records by a physician educated in TSGLI loss criteria, the claim was approved for ADL loss for 30 consecutive days and denied for the 60, 90 and 120 consecutive day payment thresholds due to the absence of objective evidence supporting the inability to perform the cited ADLs meeting the TSGLI program criteria.  The Office of SGLI sent payment of $25,000 to the applicant’s counsel on 27 May 2014. Counsel submitted an appeal on 25 March 2015 and again, after physician review, the appeal authority (AFPC/DPFD) denied the appeal on 9 April 2015, citing that while it is certainly reasonable to argue that assistance from another individual would make all ADLs more efficient and easier to accomplish, there is no objective evidence [the applicant] was incapable of accomplishing the ADLs before the 60-day threshold.

A complete copy of the AFPC/DPFCS evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The TSGLI Procedures Guide does not have force of law.  Accordingly, forensic certification of a TSGLI claim by a medical professional, is entirely appropriate and should be given due consideration.  The same is true with the assertion that use of assistive devices disqualifies a Servicemember from eligibility for TSGLI benefits.  That assertion does not have force of law.  The evidence in this case is clear that the applicant sustained very serious orthopedic injuries as the result of a motorcycle collision.  The evidence clearly establishes that he was unable to bear weight for a period of for well over 120 days from 13 December 2003 to 28 June 2004 and required both physical and stand-by assistance for his ADLs.  Regardless of the facts, the government physician reviewers arbitrarily conclude, that despite the clear evidence the applicant was able to perform ADLs of bathing and dressing without assistance after the injury.  These conclusions contradict the clear substance of the documents submitted by the applicant; and do so with little or no explanation or analysis.  Respectfully, the advisory opinion in this case mischaracterizes the eligibility criteria in the applicant’s claim.  The physician assessments are apparently forensic paper reviews of the information previously submitted, and to wit, are unsigned and unverified.  The AFPC/DPFD physician admits that the applicant needed assistance with the ADLs of bathing and dressing [sic] from 13 December 2003 to 28 June 2004 and yet, despite this, still recommended against approval for a 60 day loss (through 10 February  2004) or beyond. The other physician assumes that any service member with severe traumatic injuries is ineligible for TSGLI benefits simply because they employ some assistance devices.  That is unsupported by the evidence in this case that shows the applicant in fact required assistance with ADLs during the claimed period of loss.

The applicant reasserts the arguments, facts, and evidence outlined in support of his claim, as well as those contained in this rebuttal.  Assuming the claim continues to be denied despite the evidence and law, the applicant intends to press his claim to federal court, and will seek attorney fees and costs in addition to the underlying benefits for his wrongfully denied claim.

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant concurs with AFPC/DPFCS’s assessment and recommends denial.  The applicant likely required personal assistance and/or stand-by assistance of another individual in more than two ADLs at a given time, during the 10 to 14 days immediately following hip surgery [and suture removal] and during the four to six weeks following his ORIF surgical treatment; during which time he was likely required to exercise extreme caution and avoidance of full weight-bearing.  However, following this period, the government’s reviewer indicates the applicant was an active participant in his physical therapy program; using an exercise bike and had returned to work prior to 60 days post-injury.  Additionally, use of crutches would require use of both hands to grasp and bear body weight, indicating that the applicant had sufficiently recovered from his thumb and shoulder injuries as to no longer interfere with bathing or dressing.  Further, returning to duty, albeit reportedly partial duty, and participation in active physical therapy [which likely included active range of motion and strengthening exercises] prior to 60 days post-injury, would unlikely preclude independent dressing and bathing; particularly with use of certain assistive appliances.  Thus, while the BCMR Medical Consultant finds no reason to doubt the truthfulness and sincerity of the assessment and recommendation of the physician who certified the applicant’s TSGLI claim, taken in the context of the availability of recognized measures to facilitate certain ADLs following surgery, use of such measures would have likely mitigated the applicant’s need for the physical or stand-by assistance of another individual for the requested period.  Instead, the applicant would have been reasonably able to perform his dressing and bathing activities prior to the reaching the 60-day point with the use of assistive devices.

As a final note, individuals undergoing surgical/orthopedics procedures are normally visited by an occupational therapist and/or physical therapist early in the post-operative and sometimes pre-operative period; but definitely prior to hospital discharge.  The purpose of such a visit would have been to establish the applicant’s physical capabilities and to document any possible appliances to facilitate the safe performance of all ADLs in the home environment.  The devices [example attached] are 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.  The applicant would have also been encouraged to wear shoes or slippers not requiring tying of shoe strings during recovery of his upper and lower extremity injuries.  When such devices eliminate the need to assistance or stand-by assistance, the qualifying criteria have not been met.

The complete BCMR Medical Consultant evaluation, with attachment, is at Exhibit F.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel states the applicant’s request should be awarded not only based on the “preponderance of the evidence” standard, but also by applying the “benefit of the doubt” standard, similar to how the Department of Veterans Affairs handles benefit claims consistent with 38 United States Code (U.S.C.) Section (§) 5107(b): Claimant responsibility; benefit of the doubt.

Counsel argues that the standard of evidence in TSGLI cases is generally a “preponderance of the evidence” standard, meaning that if the evidence proves the Servicemember's claim is more likely true than not, they are entitled to benefits.  However, this standard is commonly misapplied in TSGLI claims and Servicemembers are held to a much higher standard of proof - especially in close call situations.  Pursuant to 38 U.S.C. § 5107(b), veterans are given the benefit of the doubt when there is an approximate balance of positive and negative evidence on a material issue.  Thus, when the positive and negative evidence relating to a veteran's claim for benefits are in “approximate balance,” thereby creating a reasonable doubt as to the merits of his or her claim, the veteran must prevail.

Counsel’s complete 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 error or injustice.  Counsel argues the Board should apply the benefit of the doubt standard pursuant to 38 U.S.C. in the applicant’s case.  However, the Board's authority to correct records is prescribed by 10 U.S.C. § 1552 and this Board can only recommend correction when it considers it necessary to correct an error or remove an injustice.  In this case we took notice of the applicant's complete submission, to include counsel’s rebuttal responses to the Air Force and BCMR Medical Consultant’s evaluations in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force OPR and the BCMR Medical Consultant 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-2015-02666 in Executive Session on 14 June 2016 and 15 August 2016, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02666 was considered:

Exhibit A.  DD Form 149, dated 5 June 2015, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DPFCS, dated 10 August 2015, 
  w/atchs.
Exhibit D.  Letter, SAF/MRBR, dated 21 October 2015.
Exhibit E.  Letter, Counsel, dated 20 November 2015.
Exhibit F.  Memorandum, BCMR Medical Consultant, dated 
  29 December 2015, w/atch.
Exhibit G.  Letter, AFBCMR, dated 11 January 2016.
Exhibit H.  Letter, Counsel, dated 15 July 2016.