RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04249

 						COUNSEL:   

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI) application for payment of $100,000 be approved.  

APPLICANT CONTENDS THAT:

Counsel, on behalf of applicant, requests her appeal for TSGLI in the amount of $100,000 for the injuries she sustained on 11 September 2005 be approved.   

Her initial and subsequent appeal for TSGLI were denied.  On 18 June 2014, her initial application was denied stating the loss did not meet the standards for TSGLI.  The reconsideration request submitted on 7 April 2015 was again denied on 27 May 2015.  The second denial letter stated the medical documentation did not support that she was unable to perform at least two of the six Activities of Daily Living (ADL) for at least 30 consecutive days.  The letter advised the applicant that further appeals should be directed to the AFBCMR for consideration.

On 11 September 2005, she was running on a cinder track when she fell face first on the track.  She was placed on a backboard with a cervical collar and taken by ambulance to the emergency department.  As a result of the fall, she sustained injuries to her right shoulder and the right side of her face and also her head with loss of consciousness.  She does not make any claim for hospitalization and her loss of ADL and corresponding injuries are supported by evidence.  As a result of the injuries and pain, the restrictions endured were through at least January 2006.  

She provides medical evidence addressing her specific shoulder and eye injury which illustrates an extensive timeline of treatment including surgery and many months of medical treatment.  Although not noted specifically at the time of the event, her doctor supplemented the certification of her inability to independently perform ADL and that she needed assistance with bathing and dressing.

On 11 September 2005, a CAT scan of her face showed she had a right periorbital fracture with interorbital emphysema as well as soft tissue swelling and subcutaneous emphysema.  An MRI of her right shoulder also showed anterior dislocation and severe soft tissue swelling of the right shoulder with focal distal rotator cuff tear.  She had an orthopedic consultation on 1 November 2005 and underwent arthroscopic surgery on 7 November 2005.  She continued with physical therapy through 6 February 2006.  As a result of her traumatic injury, she had substantial physical limitations that made it impossible for her to perform certain ADL during her recovery.

The evidence clearly supports her inability to bathe or dress independently for at least 120 days.  These two activities are qualifying ADL; she was unable to perform them without physical and standby assistance from 11 September 2005 to 27 January 2006, a period of 139 days day.  The decision of the TSGLI office to deny her claim on grounds of insufficient medical evidence should be overturned.  Her inability to bathe and dress independently for at least 120 days entitles her to a $100,000 TSGLI benefit.  

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

STATEMENT OF FACTS:

The applicant retired 24 May 2009 in the grade of Senior Master Sergeant (SMSgt, E-8).  She was credited with 29 years, 2 months and 27 days of service for basic pay.  

In a letter dated 27 May 2015, AFPC/DPFD denied the applicant’s appeal for TSGLI stating the medical evidence provided did not support that she was unable to perform at least two of the six ADL for at least 30 consecutive days.  The examination of the medical documentation provided revealed no ADL loss meeting TSGLI criteria for 30 consecutive days during her recovery.  While there were clearly periods of time that her mobility and strength in the shoulder were reduced, there was unrestricted use of the lower extremities and left arm.  

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).  The insurance (TSGLI) is a rider to the member’s Servicemembers’ 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.

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

AIR FORCE EVALUATION:

AFPC/DPFC recommends denial.  The burden of proof is on the applicant to demonstrate she suffered a loss as a result of her traumatic event.  After review of the original claim and the appeal, their position remains firm she does not meet TSGLI criteria for ADL loss.  Based on the facts pertaining to the Code of Federal Regulations (CFR) Title 38, Part 9.20 and the medical analysis, the applicant’s claim of ADL loss at the 30 day and higher threshold levels do not meet TSGLI eligibility criteria.

On 5 May 2005, 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 pays a monetary benefit from $25,000 to $100,000 for covered losses that are incurred as a result of the traumatic injury suffered from 7 October 2001 to present.  CFR Title 38, Part 9.20 prescribes that each uniformed service will certify its own members for traumatic injury protection based on the law.  The uniformed service will certify that the member was insured under SGLI at the time of the traumatic injury and whether they sustained a qualifying loss.

On 11 September 2015 [sic], the applicant injured her right shoulder and submitted her TSGLI claim for inability to perform ADL (bathe and dress) from 11 September 2005 to 27 January 2006 which was denied.  The applicant submitted an appeal and the appeal was also denied on 27 May 2015.  In order to qualify for a TSGLI payment, there must be ADL losses meeting the TSGLI loss criteria for at least 30 consecutive days (10 October 2005).  The subsequent payment thresholds are: 60 days (9 November 2005), 90 days (9 December 2005) and 120 days (8 January 2006).  The applicant’s claim and other pertinent records were evaluated by a physician educated in TSGLI loss criteria.  The TSGLI loss criteria is as follows:

	Bathe: Patient is unable to bathe independently if he/she requires physical, stand-by or verbal assistance from another person to bathe more than one part of the body.

	Dress – Patient is unable to dress independently if he/she requires physical, stand-by or verbal assistance from another person to get and put on appropriate clothing.

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

The BCMR Medical Consultant recommends denial of the applicant’s request for a TSGLI benefit of $100,000.  At best, the Board may elect to grant her partial relief by awarding a TSGLI benefit for 30 days but not beyond this period and excluding the period of time following her November 2005 elective surgical procedure and rehabilitation thereafter.

AFPC/DPFD concluded in the denial memorandum dated 27 May 2015 the evidence did not prove she was unable to perform at least two ADL for at least 30 consecutive days; bearing in mind the applicant also entered an interrupted period of possible impairment in ADL following elective surgical repair of her right shoulder rotator cuff and labrum in November 2005.  In reaching a fair and equitable decision, the Board is left with competing medical opinions and the truthfulness of the applicant’s disclosures to her practitioners with the assistance of an attorney 10 years post-injury.  

The Board should bear in mind an individual’s inability, or perceived inability, to perform a given physical task may vary from person to person and may be influenced by other factors affecting performance such as fear of further injury, fatigue, low energy or motivation due to depressed mood.  The Medical Consultant believes the applicant’s intact ocular function of the uninjured eye and the completely intact and functioning left upper extremity, the intact musculoskeletal functioning of the right elbow, wrist and hand and the intact cervical, thoracic and lumbosacral spine functioning, she should have been reasonably able to bathe and dress without requiring the assistance or stand-by assistance, particularly beyond 30 days post-injury and the intervening period before she underwent surgical treatment in November 2005.  Additionally, on 26 October 2005, the applicant disclosed she was capable of driving a vehicle, albeit with pain.  

Addressing the applicant’s capabilities, most accredited medical institutions assure patients who have sustained a significant injury or undergone major musculoskeletal surgery will be visited by a physical therapist or occupational therapist before discharge to assure the individual is capable of safely performing ADL.  During such an assessment, the patient is supplied or advised the procurement of assistive devices that facilitate independent performance of certain ADL, particularly emphasis on transferring, bathing and dressing.  The patient must also demonstrate the capacity to use the devices before discharge, if deemed necessary.

In conclusion, the BCMR Medical Consultant concedes the combined effect of the applicant’s ocular injury and her right shoulder dislocation may have impaired her ability to safely, in her mind and by her actions, and independently perform the claimed ADL without fear of recurrent dislocation and precipitation of acute pain.  The acute phase of the applicant’s pain should have subsided by day 30 and definitely before day 60 post-injury.  

A complete copy of the BCMR Medical Consultant’s evaluation, with attachment, is at Exhibit D.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In an e-mail dated 21 November 2016, counsel, on behalf of the applicant, provides a copy of their rebuttal response originally submitted on 22 June 2016 which was not previously received.  Counsel states the TSGLI Procedures Guide does not have a force of law.  Accordingly, the certification of a TSGLI claim by a medical professional is appropriate and should be given due consideration.  The assertion that the use of assistive devices disqualifies a service member from eligibility for TSGLI is unsupported by law or facts.  The evidence in this case establishes the applicant sustained traumatic injuries to her right shoulder and the right side of her face, as well as her head with the loss of consciousness as the result of a fall.  She was unable to perform her ADL independently well over 120 days from 11 September 2005 to 27 January 2006 and required both physical and stand-by assistance during the period.  Despite the evidence, the BCMR Medical Consultant arbitrarily concluded the applicant was able to perform ADL of bathing and dressing without assistance after the injury.  The conclusions are unsupported by any substantial evidence and contradict the evidence.  The BCMR Medical Consultant’s conclusions are also unsigned.

The BCMR Medical Consultant recommends a partial award of TSGLI benefits for 30 days of ADL loss for 30 days but the evidence establishes entitlement to TSGLI for 120 days of ADL loss.  His opinion rests on the generalization that any service member with severe traumatic injuries is ineligible for TSGLI benefits simply because they employ some sort of assistive device during their recovery.  This disregards the evidence that the applicant required assistance with ADL during her claimed period of ADL loss.  Counsel suspects it is not the position of the AFBCMR that service members recovering from a traumatic injury should risk re-injury during their recovery by foregoing assistance to safely perform ADL even if they are provided with assistive devices.  Such a position runs contrary to the policy of helping service members recover expeditiously from traumatic injuries and the TSGLI program.  Assuming the claim continues to be denied despite the evidence and law, the applicant will be pursuing a lawsuit in Federal District Court to overturn the denial and will seek attorney fees and costs in addition to the benefits for her wrongfully denied claim.

The standard of evidence in TSGLI cases is generally a “preponderance of the evidence” standard meaning that if the evidence provides the claim is more likely true than not, they are entitled to benefits.  However, the standard is commonly misapplied and service members are held to a much higher standard of proof, especially in “close call” situations.  While it is their position the applicant’s claim is clearly supported by the evidence and is meritorious based on the preponderance of the evidence, it is their position that the agency should apply the “benefit of the doubt” standard similar to how the DVA handles benefit claims should this be seen as a “close call” type case.  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 “reasonable doubt” as to the merits of the claim, the veteran must prevail.  Ortiz v Principi, 274 F.3d 1361, 1364 (Fed. Cir 2001).  Counsel requests the Board apply this standard in the TSGLI benefit determination, consistent with 38 U.S.C. § 5107(b), Ortiz and the intent of the TSGLI program, which is to provide monetary assistance for traumatically injured service members.  

A complete copy of the applicant’s submission is at Exhibit F.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the signed BCMR Medical Consultant’s evaluation was forwarded to counsel on 28 November 2016 for additional review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.

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 to warrant granting the applicant’s request for approval of her TSGLI claim in the amount of $100,000 for loss of the ADL of bathing and dressing for 120 days.   Counsel argues in his rebuttal the Board should grant the applicant’s claim based on the “reasonable doubt” standard; however, we are persuaded insufficient evidence has been presented to substantiate the applicant suffered a loss of two ADL for a period of 120 days and required physical or stand-by assistance  for payment of $100,000 per Public Law 109-13 and TSGLI criteria.  While the applicant clearly had periods of time her mobility and strength in her right shoulder were reduced, counsel has not sustained the burden of proof required to warrant granting the requested relief.  Counsel also asserts the BCMR Medical Consultant recommends denial based on the availability of assistive devices in performing the ADL.  However, in our opinion, we find the medical evidence, with or without the use of the assistive devices, insufficient to warrant granting the requested relief.  Moreover, we note the applicant by her own admission stated she was able to drive herself on 26 October 2005 (45 days after her injury).  The applicant’s case has undergone an exhaustive review by TSGLI subject matter experts and the BCMR Medical Consultant and we did not find the evidence provided sufficient to overcome their assessment of the case.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant partial relief.  Based on the nature of the applicant’s in the LOD injury and the medical evidence, she incurred physical limitations and acute pain which in our opinion required her to have physical and stand by assistance to perform the ADL of bathing and dressing for 30 consecutive days following her traumatic injury.  Accordingly, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has been the victim of an error or injustice to warrant partial approval of her TSGLI claim in the amount of $25,000 for loss of ADL bathing and dressing for 30 consecutive days.  Accordingly, we recommend the applicant’s records be corrected to the extent indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that her application for Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI) was approved on 27 May 2015 based on the determination that she suffered the loss of two Activities of Daily Living (ADL) for 30 consecutive days and she is entitled to payment in the amount of $25,000. 

The following members of the Board considered AFBCMR Docket Number BC-2015-04249 in Executive Session on 6 October 2016 and 12 January 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence was considered for AFBCMR Docket Number BC-2015-04249:

	Exhibit A.  DD Form 149, dated 23 September 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFC, dated 18 February 2016.
	Exhibit D.  Memorandum, BCMR Medical Consultant, dated
			  7 April 2016, w/atch.
	Exhibit E.  Letter, AFBCMR, dated 2 June 2016.
	Exhibit F.  E-mail, Counsel, dated 21 November 2016, 
  w/atch.  
	Exhibit G.  Letter, AFBCMR, dated 28 November 2016.  	

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.