RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01836
 	
						COUNSEL:   

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states he was unable to perform at least two Activities of Daily Living (ADL) for a period of more than 66 days which supports entitlement for compensation per the TSGLI criteria.  

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

STATEMENT OF FACTS:

The applicant is in the Air Force Reserve currently serving in the grade of Senior Master Sergeant (SMSgt, E-8).  

On 22 November 2013, the applicant submitted a claim for TSGLI benefits as a result of injuries incurred in a motorcycle accident on 4 October 2010.  He was struck by a sport utility vehicle and sustained a compound fracture of his left tibia and fibula and a broken pelvis.  He had a rod placed in his left leg, a plate to repair his pelvis and a four inch screw to repair his hip.   He indicated he was unable to bathe, maintain continence, dress, toilet and transfer independently for the period of 4 October 2010 to 8 December 2010.  On 13 December 2013, a medical professional signed the claim indicating he had had observed the applicant’s loss of ADL.  

On 6 December 2014, the applicant’s request for TSGLI was denied as the medical documentation provided did not indicate his loss met the TSGLI minimum standard.    

Counsel provides notarized transcribed witness statement dated 10 November 2014 from the director of the orthopedic trauma center which states the applicant presented to their trauma center on 4 October 2010 following a motorcycle collision.  He was consulted in a follow-up to treat the applicant’s pelvic injury.  The applicant sustained fairly severe orthopedic injuries, to include compound tibia and fibula fractures that required surgical intervention.  He also sustained a pelvic fracture where he disrupted his pelvis from his tailbone area in the back and near the symphysis pubis.  He essentially injured both lower extremities.   On 13 December 2013, he noted the applicant needed assistance in performing the ADL of bathing, toileting and transferring from 4 October until 8 December 2010.  The applicant was an established patient who he physically saw in his outpatient office as well as in the operating room.  He performed surgery on the applicant, saw him in follow-up appointments and performed secondary surgery on him months later.  

Counsel provides notarized transcribed witness statement dated 28 January 2016 from the applicant’s physical therapist.  On 29 December 2010, he noted the applicant’s condition was about the same as it was on 22 December 2010, with the exception of prolonged standing.   He had a weakness in the right hip that gave him a peculiar gait pattern and there was weakness in both legs and his right hip rotation was limited compared to the left.  He had severe problems with flexibility in the hamstrings, hip flexors and left ankle.  The physical therapist stated the applicant was restricted and required assistance to perform the ADL of bed mobility, transfer, general mobility, stairs, prolonged standing, squat and carrying objects from 4 October to 22 December 2010.  

Counsel provides notarized transcribed witness statement dated 17 February 2016 from the applicant’s son.  He stated he did not recall specifically how long he provided assistance with the ADL but that it was more than 30 days.  In response to counsel’s questions, he stated he and his younger brothers assisted their father with hands-on and stand-by assistance for more than 60 days with the ADL of showering, getting up and dressing and moving around the house.  He concurred with counsel that it was about 79 days that he assisted the applicant with hands-on and stand-by assistance to perform the ADL, to include toileting, dressing and transferring.

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 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.  

Code of Federal Regulations (CFR) Title 38 Para 9.20 prescribes each service certifies whether a service member was insured under SGLI and whether they sustained a qualifying loss.  The TSGLI loss criteria prescribes that a member is considered to have a loss of ADL if the member requires assistance to perform at least two of six ADL (eating, bathing, dressing, toileting, transferring and continence).  

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

AIR FORCE EVALUATION:

ARPC/DPTT recommends denial.  The applicant had full function of his upper extremities.  Between 30 and 60 days, he should have been able to toilet himself, either using his regular toilet facilities or through the use of a bedside commode.  He should have been able to dress himself well before the 60 day threshold and should have also been capable of independent hygiene activities well prior to 60 days.  There is no evidence in the applicant’s medical record he lost control of bowel and or bladder function at any time.  

A member is considered to have a loss of ADL if they require assistance to perform at least two of the six ADL.  If a member is able to perform the activity by using accommodating equipment (such as a cane, walker or commode) or adaptive behavior, the member is considered able to independently perform the activity.  The applicant was hospitalized from 4 to 12 October 2010.  During that time, he underwent open reduction and internal fixation of his pelvic and lower leg injuries.  At the time of his discharge, he was described as able to transfer himself from bed to wheelchair.  The discharge note also indicated he would have home physical and occupational therapy.  An orthopedic follow-up note dated 26 October 2010, indicated he was instructed to continue weight bearing for transfer only on his left leg and not to bear any weight on his right leg.  An additional follow-up was conducted on 12 November 2010 and the applicant was instructed to begin progressive weight bearing of the right lower extremity and could be fully weight bearing on his left.  Home care evaluations performed in November indicate the service member had assistive appliances in the home to allow for him to be at least modified independent in ADLs.  These included hospital bed with trapeze, bedside commode, wheel chair and a hand held shower.  It was also documented the applicant was capable of transferring on his own.  The first detailed assessment of the applicant’s ability to perform ADL is dated 22 December 2010.  The applicant is afforded the opportunity to submit an appeal to the board for possible additional compensation.  This is considered additional information and an entirely new TSGLI claim should be submitted along with any new medical findings.  

A complete copy of the ARPC/DPTT evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to counsel and applicant on 12 April 2017 for review and comment within 30 days (Exhibits D and E).  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.  We note counsel has provided witness statements indicating the applicant had a loss of two ADL for the period of 4 October to 8 December 2010 and requests payment of TSGLI.  However, we are persuaded the medical documentation provided is insufficient to substantiate this claim.  In view of this, we agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Should the applicant submit medical evidence in support of his request, the Board would be willing to reconsider his request.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 RECOMMENDS 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-2016-01836 in Executive Session on 7 September 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01836 was considered:

	Exhibit A.  DD Form 149, dated 17 March 2017, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, ARPC/DPTT, dated 29 July 2016.
	Exhibit D.  Letter, AFBCMR dated 12 April 2017.
	Exhibit E.  Letter, AFBCMR, dated 12 April 2017.  

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.