RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02814

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI) application be approved.

APPLICANT CONTENDS THAT:

The applicant’s counsel contends the applicant needed assistance with ADLs (bathe, dress and toilet) from 18 Jun 13 to 17 Oct 13 and the applicant’s spouse performed the assistance.  

The applicant also contends that a Colorado District Court decision, dated 27 Sep 13, makes it clear that a “wife’s statement as to the ADL assistance given to the soldier was sufficient to certify his claim.”

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

STATEMENT OF FACTS:

On 18 Jun 13, the applicant injured his non-dominant left hand while working on his vehicle.  On 2 Jun 14, he submitted a TSGLI claim for the inability to perform ADLs (bathe, dress and toilet) from 18 Jun 13 to 17 Oct 13.  On 25 Jun 14, the claim was denied.

On 29 Sep 14, the applicant submitted an appeal of the denied TSGLI claim and on 6 Nov 14, the appeal was denied by the appeal authority.  

On 30 Sep 15, the applicant was relieved from active duty and retired, effective 1 Oct 15.  He was credited with 20 years and 25 days of active service.   

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

AIR FORCE EVALUATION:

AFPC/DPFCS recommends denial indicating there is no evidence of an error or an injustice.  After reviewing the original claim and appeal, DPFCS still remains firm that the applicant does not meet TSGLI criterion for ADL loss due to other traumatic injury for any payable threshold.

In order to qualify for a TSGLI payment, there must be ADL losses, meeting TSGLI loss criteria, for at least 30 consecutive days (17 Jul 13).  The subsequent payment thresholds are: 60 days – 16 Aug 13; 90 days – 15 Sep 13, and 120 days – 15 Oct 13.

Public Law (PL) 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).  The insurance (TSGLI) is a rider to the Servicemember’s Group Life Insurance (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 a traumatic injury.

CFR Title 38 Part 9.20 prescribes that each uniformed service will certify its own members for traumatic injury protection benefits based upon section 1032 of PL 109–13, section 501 of PL 109–233, and this section.  The uniformed service will certify whether a servicemember, at the time of the traumatic injury, was insured under SGLI and whether they have sustained a qualifying loss.

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

The BCMR Medical Consultant recommends denial in concurrence with the advisory and recommendation provided by AFPC/DPFCS.  The Medical Consultant acknowledges the likelihood the applicant could not hold two utensils concurrently in order to cut meats during the first 30 days of injury and repair; but there are also other means of nutrition not requiring cutting.  Additionally, the applicant, using his dominant right upper extremity, should have had no problem lowering trousers and pulling up trousers for toileting or for personal perineal hygiene; particularly after his sutures were likely removed well in advance of 30 days.  It is likely the applicant was initially placed in a bulky wound dressing that he required assistance or stand-by assistance spanning at least 2 to 3 weeks post-injury; but nowhere near the requested 120-day period.  

Therefore, the assistance given by the applicant’s spouse may have facilitated performance of all mentioned ADLs, but such assistance or stand-by assistance was not clinically required to carry out these functions beyond 30 days.

A complete copy of the BCMR Medical Consultant evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel refutes virtually every point made by the BCMR Medical Consultant and argues while the TSGLI procedural guide, in commenting on ADLs, states that a claimant who could use "adaptive behavior" is considered able to independently perform that activity, it is difficult to fathom the applicant could tie his shoes or boots or button his shirt using one hand as suggested. Or, could go to the toilet, bathe or eat without assistance.  The Medical Consultant also suggests the applicant could use “other means of nutrition” and says the caregiver was not “clinically required” to assist with ADLs.   This is not the correct standard of review.  

Loss of ADL is different with each individual who may be injured and struggling to get through the day.  The Medical Consultant ignores the plain language of the TSGLI law and the Procedural Guide.  It could not possibly be the intent of Congress in passing the TSGLI law that payment of benefits be this restrictive.  Also, in many contexts the benefit is referred to as “insurance.”  Members of the military are told it is insurance and it is paid for like an insurance policy by monthly payment.  It is basic in insurance law that language in the policy should be construed in favor of policyholders.

The procedural guide clearly shows that a claimant has met the ADL restriction requirement if he needs assistance or standby assistance in two of the six categories on a daily basis.  The fact that he might have reported for duty after receiving assistance from his wife at home, does not mean he does not meet the ADL standard.

Counsel indicates that he included two additional sworn affidavits of the applicant and his wife that are more detailed.  Additionally, the applicant was also properly certified by his physician as needing ADL assistance for four months.

Counsel also states that he previously cited the Fail case, which states that caregiver testimony should be given great weight.  The Opinion and Order provided grants reconsideration.  The Order simply states the Army should be given an opportunity to further develop the case with new evidence and remanded the claim for “further proceedings consistent with the Court's opinion.”  The Judge's ruling that the statement of a caretaker is important evidence has not been overruled in any way.

Also provided are emergency room and hospital records and physical therapy treatment notes which clearly contain evaluations by various medical professionals and show the extent of the applicant’s ongoing disability during the first four months of his treatment.  The applicant sustained a very serious disabling hand injury and he should be approved.

In support of his response, counsel provides copies of affidavits from the applicant and spouse, hospital and emergency room records, orthopedic surgery notes, and various other medical documentation (Exhibit F).

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.  After a thorough review of the available evidence and the applicant’s complete submission, to include counsel’s rebuttal to the Air Force evaluations, we are not persuaded the applicant’s TSGLI application should be approved.  While we note the argument of counsel that the BCMR Medical Consultant used the wrong standard of review and ignored the plain language of the TSGLI law and the Procedural Guide, in our opinion, after reviewing the evidence provided, substantial evidence has not been presented to successfully refute the assessment of his case by the Air Force OPR and the BCMR Medical Consultant.  Therefore, we agree with the opinions and recommendations of the Air Force OPR and the BCMR Medical Consultant and 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. 

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-2015-02814 in Executive Session on 16 Aug 16 under the provisions of AFI 36-2603:

					 , Panel Chair
					 , Member
					 , Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02814 was considered:

	Exhibit A.  DD Form 149, dated 30 Jun 15, w/atchs.
	Exhibit B.  Applicant’s Available Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFCS, dated 17 Aug 15.
	Exhibit D.  Memorandum, BCMR Medical Consultant, 
  dated 7 Dec 15.
	Exhibit E.  Letter, AFBCMR, dated 11 Jan 16.
	Exhibit F.  Letter, Counsel, dated 9 Mar 16, w/atchs.