IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150000090 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150000090 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150000090 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an additional $25,000 from the Army Traumatic Servicemembers Group Life Insurance (TSGLI) Program. 2. The applicant states, in effect, he suffered from multiple traumatic injuries due to an accident on 24 April 2012. His motorcycle was hit by a teenage girl doing an illegal U-turn. He needed facial reconstructive surgery on his jaw, eyes, and nose. He also suffered from a traumatic brain injury (TBI), a broken right femur, dislocated left knee, broken left wrist, broken left thumb, a dislocated left shoulder and he cracked two upper ribs. He qualified for a $75,000 TSGLI payment for facial reconstruction (surgery) as well as a $25,000 payment for a traumatic brain injury due to his inability to perform activities of daily living (ADL). 3. He received payment for 15 days of hospitalization and loss of ADLs for a period of 60 days which resulted in a payment of $50,000. Later he was approved for facial reconstruction of the right and left periorbital facial subunits resulting in an additional $25,000 payment. He believes he should have been paid $25,000 for each eye according to the Schedule of Losses, Appendix A. This additional payment of $25,000 would result in him receiving the full benefit he is entitled to receive in the amount of $100,000. 4. The applicant provides: * Two SGLV 8600 (Applications for TSGLI Benefits) * medical records * two Electronic Payment Notifications from Prudential, dated 15 February and 31 December 2013 * a letter from Prudential, dated 13 March 2013 * a letter from Dr. H_____, Antelope Valley Orthopedic and Rehabilitation Specialists, dated 2 July 2013 * two letters from the U.S. Army Human Resources Command (HRC), dated 24 October 2013 and 11 November 2014 CONSIDERATION OF EVIDENCE: 1. The applicant is a specialist/pay grade E-4 serving in a troop program unit in the U.S. Army Reserve (USAR). 2. On 24 April 2012, the applicant was injured riding his motorcycle when a 17-year old girl made an illegal U-turn in front of him. He hit her truck at 50 miles per hour. He broke almost every bone in his face, his right femur, two ribs, left wrist, left thumb, and dislocated his left knee and left elbow. When his knee was dislocated he tore a main nerve that allows him to lift his foot. He was told he will have "drop foot" due to his neve being cut. He will need to wear a brace to help him lift his foot for the rest of his life. He also suffered a TBI and he was initially put into an induced coma at the hospital. 3. On 17 December 2012, he filed an SGLV 8600, claiming TSGLI for inpatient hospitalization, limb salvage, and loss of ADLs. Part B consists of the medical professional's statement. a. Section 2 (Inpatient Hospitalization Information) shows he was hospitalized from 24 April 2012 - 15 June 2012. b. Section 3 (Qualifying Losses Suffered by Patient) shows "Salvage of left leg" and the date of first surgery was 10 May 2012. Dr A_____, whose specialty was orthopedics, signed the form on 20 December 2012. c. Section 3 shows his inability to independently perform ADLs. The predominant reasons he was unable to perform ADLs were TBI and other traumatic injury. The following reasons were given as causing him to be unable to perform ADLs: * left wrist fracture * right femur fracture * left knee fracture, left knee reconstruction * compartment syndrome traumatic * thumb fracture * left foot drop requires “AFO” * neuralgia * facial trauma * TBI * Patient required physical and standby assistance to perform ADLs d. Section 3 indicated he was unable to perform the following ADLs: * unable to bathe independently from 24 April - 6 August 2012 - needed assistance to bathe and transfer in and out of shower/bath * unable to maintain continence independently from 24 April - 15 June 2012 - had to have assistance to manage catheter * unable to dress independently from 24 April - 6 August 2012 - required assistance in daily dressing * unable to eat independently from 24 April - 25 June 2012 - required assistance getting food from plate to mouth * unable to toilet independently from 24 April - 25 June 2012 - required assistance getting to and from toilet, cleaning, transferring on/off toilet, and removal of clothing * unable to transfer independently from 24 April - 6 August 2012 - assistance required transferring in/out of bed and in/out of vehicle e. Section 5 (Medical Professional's Statement) shows Dr. A_____'s specialty as orthopedics and he indicated he observed the applicant's loss. He signed the form on 20 December 2012. 4. The applicant provided medical reports from Antelope Valley Hospital. a. A Consultation Report, dated 24 April 2012, from Antelope Valley Hospital shows x-ray examinations of all the extremities revealed the following: * open comminuted fracture of the right distal femoral shaft region * left knee fracture dislocation with an evulsion of the proximal fibula with a proximal fibula fracture * a left elbow dislocation * a left wrist fracture, cistal radius, with shortening and angulation * a Rolando's fracture at the base of the proximal first metacarpal b. An Operative Report, dated 24 April 2012, showed the following postop diagnoses: * open grade 2 right displaced comminuted femur shaft fracture * open traumatic arthrotomy, right knee * right thigh hematoma * left knee fracture dislocation with avulsion of the proximal fibula * peroneal nerve neuropraxia, left knee * traumatic effusion, left knee c. An Operative Report, dated 26 April 2012, showed the following postop diagnoses: * displaced intraarticular comminuted fracture of the left distal radius * displaced intraarticular comminuted fracture of the base of the left proximal first metacarpal * status post closed reduction of a left elbow dislocation * poly-traumatized patient d. An Operative Report, dated 3 May 2012, showed the following postop diagnoses: * left knee fracture/dislocation * traumatic disruption to the posterior cruciate ligament * traumatic disruption to the anterior cruciate ligament * traumatic disruption to the posterolateral corner with avulsion of the lateral collateral ligament with a fibular head avulsion fracture * traumatic hemarthrosis of the left knee * status post application of multi-lane spanning external fixator after a closed reduction of a left knee traumatic knee dislocation on 24 April 2012 * compartment syndrome, left leg e. An Operative Report, dated 10 May 2012, showed the following postop diagnoses: * status post motorcycle accident with poly-traumatized patient * left knee dislocation * status post application of multi-plane, spanning external fixator * status post anterior cruciate ligament and posterior cruciate ligament reconstruction, last week * compartment syndrome * status post four-compartment fasciotomy, left leg * status post application of wound VAC, left leg * posterolateral corner injury * neuropraxia of the common peroneal nerve, with complete foot drop * neuropraxia of posterior tibial nerve, with near complete inability to plantar flex the left foot, and sensory loss * complete avulsion and axonotmesis of the common peroneal nerve above the fibula head * fibula head avulsion fracture, left knee * posterior lateral capsule avulsion * complete tear of popliteus tendon * traumatic hemarthrosis, left knee 5. On 18 December 2012, he filed an SGLV 8600, claiming TSGLI for facial reconstruction. Part B consists of the medical professional's statement. a. In Section 3, the following items were checked and initialed by the surgeon for facial reconstruction: * Upper or lower jaw * 30 percent (%) of left periorbital * 30% of right periorbital * 50% of left zygomatic * 50% of right zygomatic * 50% of forehead b. The date of his first surgery was 1 May 2012. The name and signature of the surgeon are on the form. c. He was unable to eat independently from 24 April - 13 June 2013, requiring physical assistance (hands-on). He was on a liquid diet due to his jaw being wired shut. d. The medical professional noted the applicant sustained Le Fort III and I fractures. e. Section 5 (Medical Professional's Statement) shows Dr. P___'s specialty as plastic surgery and he indicated he observed the applicant's loss. He signed the form on 5 January 2013. 6. The applicant provided the Operative Report, dated 1 May 2012, from Antelope Valley Hospital, Lancaster, CA with his SGLV 8600. a. The postop diagnoses were: * Le Fort III fracture * Le Fort I fracture * bilateral mandibular condylar fracture * bilateral orbital floor fracture * nasal septal fracture b. The operation showed: * open reduction and internal fixation of Le Fort III fracture * open reduction and internal fixation of Le Fort I fracture * repair of bilateral orbital floor fracture with alloplast * closed reduction of nasal septal fracture * pericranial flap 11 x 11 centimeters 7. An Electronic Payment Notification, dated 15 February 2013, from Prudential shows he received a $50,000 payment for traumatic injury. 8. A letter, dated 13 March 2013, from Prudential notified the applicant his claim for facial reconstruction was not approved because the medical documentation provided did not indicate his loss met the TSGLI standard. He was also notified that under TSGLI, facial reconstruction is defined as “traumatic avulsions of the face or jaw that cause discontinuity defects.” 9. The applicant appealed Prudential’s 13 March 2013 denial of TSGLI for facial reconstruction. a. He stated he qualified for TSGLI benefits for: * jaw - surgery to correct discontinuity loss of the upper or lower jaw - $75,000 * eye - surgery to correct discontinuity loss of 30% or more of the periorbital - $25,000 - for each eye b. He stated he had already received payment for the limb salvage of his leg ($50,000) but he was still due payment for his jaw and eyes. c. He provided a diagnostic report text for a CT scan - brain without contrast, dated 27 April 2012, which found the ventricles had a normal size, shape, and position. There was no evidence for mass-effect or midline shift. There were no definite intracranial areas of abnormal density. Note that the previously identified shear injuries were not well appreciated on the current examination. There was no evidence for acute intra or extra axial blood. The calvarium appeared intact. There was diffuse scalp soft tissue swelling most prominently over the right parietal and left temporal regions. There was diffuse facial soft tissue swelling. Multiple facial bone fractures were again visualized. There was extensive mucosal thickening and per patient material throughout the paranasal sinuses. The mastoid air cells were without significant soft tissue. d. He provided a diagnostic report text for an x-ray - facial bones including orbits, dated 1 May 2012, which found fracture fixation plates identified on the lateral and inferior aspects of the orbits, surrounding the maxillary sinuses and just above the nasal bones. Mildly displaced mandibular rami fractures is needed to be observed. Surgical screws and wires holding the maxilla and mandible together were noted. Skin staples were seen overlying both sides of the skull. e. He provided a letter, dated 2 July 2013, from Dr. H_____, his follow up physician. Dr. H_____ described in detail the applicant's injuries and in summary stated the applicant appeared to have significant facial avulsion injury with air communication within the soft tissues. He had discontinuity of his upper and lower facial segments. He had separation in Le Fort patterns bilaterally, what appeared to be a Le Fort II. He additionally had subcondular fractures bilaterally causing discontinuity of his mandible with disruption of essentially all facial osseous structures. 10. A letter from HRC, dated 24 October 2013, notified the applicant the TSGLI program office had reconsidered the decision on his previous claim and was unable to overturn the previous adjudication. a. He had been previously awarded $50,000 for hospitalization and loss of ADLs for 60 days for his event which took place on 24 April 2012 in California. b. The losses for facial reconstruction of his left and right periorbital were also found; however, according to TSGLI guidelines these losses cannot be combined for payment. c. The medical documents submitted did not indicate he met the TSGLI standard for limb salvage in place of amputation. The documentation provided did not indicate that a series of operations were performed that were designed to avoid amputation while simultaneously maximizing the limb's functionality, per the TSGLI guidelines. d. The documentation provided did not indicate that he was incapable of performing the ADLs of toileting, dressing, bathing, transferring, continence, or eating for greater than 90 days, which is the next milestone required for further payment, per TSGLI guidelines. 11. The applicant filed a second appeal. He stated he should have been paid TSGLI in the following amounts for: * jaw - $75,000 * eyes - (found according to the recent denial letter) - $50,000 * hospitalization due to traumatic brain injury - $25,000 * $150,000 total; however, the maximum payout is $100,000. He received $50,000 and believes he is still due an additional $50,000. 12. An Electronic Payment Notification from Prudential, dated 15 February 2013, shows he received a $25,000 TSGLI payment for traumatic injury. 13. The applicant submitted a third TSGLI appeal letter seeking an additional $25,000. He had already been awarded a total of $75,000. However, he had not been awarded payment for ADL loss due to TBI. He believed he should receive benefits for ADL loss due to TBI combined with another injury, his facial reconstruction. 14. A letter, dated 11 November 2014, from HRC notified the applicant the TSGLI program office had received his appeal request. After reviewing the claim and supporting documentation, they were unable to overturn the previous adjudication. a. He was previously approved for 15 days of hospitalization and loss of ADLs for a period of 60 days which resulted in a payment of $50,000. b. Later he was approved for facial reconstruction of the right and left periorbital facial subunits resulting in an additional $25,000 payment. His total payment of $75,000 is what he would receive for reaching the 90-day milestone for loss of ADLs due to physical disability. In order to reach the next milestone for additional payment, his medical documentation must indicate ADL loss of 120 consecutive days due to physical disability or 30 consecutive days due to a TBI related cognitive disability. 15. On 11 December 2014, he filed a fourth appeal letter with HRC. He stated the denial letter indicated he was approved for his facial reconstruction injuries from his left and right periorbital facial subunits resulting in an additional payment of $25,000. This payment should have been $50,000 because each eye should have resulted in a payment of $25,000. 16. In the processing of this case an advisory opinion was received from HRC on 9 March 2016. a. The applicant was initially approved for: (1) 15 days of inpatient hospitalization due to TBI. HRC's physician found that his TBI related issues were resolved prior to meeting the second milestone for TBI ADL loss, which is 30 days. This loss is found in Part 1 of the Schedule of Losses and provides a payment of $25,000. (2) Loss of ADLs for 60 days due to traumatic injury other than TBI (OTI). This loss is found in Part 2 of the Schedule of Losses and provides a payment of $50,000. (3) He was paid the greater amount of the two approved losses, $50,000. b. He was subsequently approved for facial reconstruction of the left and right periorbital. These losses each provide for a $25,000 payment in Part 1 of the Schedule of Losses. c. The approved losses from Part 1 (TBI hospitalization ($25,000), left and right periorbital ($50,000)) were combined and resulted in a total award of $75,000. d. Additional claims of limb salvage and facial reconstruction for other facial subunits were not approved. 17. On 15 March 2016, the applicant submitted a rebuttal to the HRC advisory opinion. He indicated: a. He had provided evidence that showed he suffered many injuries under the facial reconstruction section, which should have resulted in the full payment of $75,000. The TBI hospitalization approved for 15 days should have been approved for 30 days. b. The doctors he has seen cannot understand why the advisory opinion doctor did not clearly understand the operation reports and the severity of his reconstruction. c. The advisory opinion letter was mistaken in that there were "…simple fractures as discontinuity and a standard repair of the La Forte III fracture." The operation report clearly states "the patient appears to have significant facial avulsion injury with air communication within the soft tissues. He has discontinuity of his upper and lower facial segments…" "…fixation of the complex combined Le Fort III and Le Fort I fractures…" Therefore, these are not simple fractures. d. He again provided a copy of the operative report. REFERENCES: 1. Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on 11 May 2005, established the TSGLI program. The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. TSGLI provides between $25,000 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage. Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1 taken out each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI, it is a package. 2. A qualifying traumatic injury is an injury or loss caused by a traumatic event. HRC's official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount. a. Part I losses include sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, and facial reconstruction. b. Part II losses include traumatic injuries resulting in the inability to perform at least two ADLs for 30 or more consecutive days and hospitalization due to a traumatic injury resulting in the inability to carry out two of the six ADLs, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more. ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. 3. A member who is hospitalized for 15 consecutive days as the result of a traumatic injury is eligible for a $25,000.00 payment under TSGLI. The count of consecutive hospitalization days begins when the injured member is transported to the hospital, includes the day of admission, continues through subsequent transfers from one hospital to another, and includes the day of discharge. If a member is hospitalized for 15 consecutive days, the member's hospitalization takes the place of the first ADL milestone payment only. The 15 days of hospitalization cannot be substituted for any other ADL milestone payment. Payment will be made for the 15-day hospitalization or the first ADL milestone, whichever occurs first. 4. ADLs are routine self-care activities that a person normally performs every day without needing assistance. There are six basic ADLs: 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 an ADL loss if the member requires assistance to perform at least two of the six ADLs. If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.), the patient is considered to be modified independent. 5. TSGLI claims may be filed for ADL loss if the claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more (15 days or more in the case of traumatic brain injuries). Any ADL loss must be certified by a healthcare provider in part B of the claim form and ADL loss must be substantiated by appropriate documentation, such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 6. The Traumatic Injury Protection Under Servicemembers’ Group Life Insurance (TSGLI)-A Procedural Guide provides the provisions for the TSGLI. Part 4 - Schedule of Losses states a scheduled loss is a loss that is suffered as a result of a traumatic event and is listed on the schedule of losses. The Schedule of Losses (see Appendix A) outlines the injuries covered under TSGLI and the amount payable for each injury. Certain injuries listed in the schedule may be combined and treated as a single scheduled loss. Payments range from a minimum of $25,000 to a maximum of $100,000. This section is a guide for using the schedule to combine injuries as a single loss, evaluating the type of loss suffered, and determining the TSGLI benefit payment amount. a. The Schedule of Losses is divided into two parts. (1) Part 1 lists injuries that may be combined with each other and treated as a single scheduled loss (except where noted otherwise). The total payment amount may not exceed $100,000. (2) Part 2 lists injuries that cannot be combined with injuries in Part 1 or with each other. If the member has multiple injuries that are listed in both parts of the schedule, the member will receive payment for the highest paying loss up to a maximum of $100,000. b. Losses must meet the TSGLI standard in order to be eligible for a benefit payment. This section is a guide to evaluating these losses. There are nine categories of losses covered including inpatient hospitalization. (1) Inpatient hospitalization for coma/TBI may be combined with other injuries provided inpatient hospitalization is primarily due to TBI or coma. If a member is hospitalized as an inpatient for 15 consecutive days due to TBI or coma and the member has another injury that is listed on the schedule of losses, the member’s TSGLI benefit will include the benefit for the 15-day inpatient hospitalization plus the benefit for the other injury (up to $100,000). In order to combine the two benefits, the member’s hospitalization must be due to coma or TBI. (2) Inpatient hospitalization for traumatic injuries other than coma/TBI may be not combined with other injuries. If a member is hospitalized as an inpatient for 15 consecutive days due to a traumatic injury other than coma/TBI and the member has another injury, the member’s TSGLI benefit will be for the highest paying injury. DISCUSSION: 1. The applicant was initially approved for 15 days of hospitalization for TBI related issues. His TBI related issues were resolved prior to meeting the 30 day milestone. This loss is found in Part 1 of the Schedule of Losses and provides a payment of $25,000. 2. He was also approved for loss of ADLs for 60 days due to OTI. This loss is found in Part 2 of the Schedule of Losses and provides a payment of $50,000. Losses in Part 2 cannot be combined with losses in Part 1 for payment. 3. He was payed the greater amount of $50,000. 4. The applicant was then approved for facial reconstruction of the left and right periorbital. These losses are found in Part 1 of the Schedule of Losses and provide a payment of $25,000 for each eye. 5. The losses from Part 1 were then combined to provide the maximum benefit to the applicant. The approved losses for TBI hospitalization for 15 days at $25,000 and the approved losses of facial reconstruction for the left and right periorbital at $25,000 for each eye were combined for a payment of $75,000. 6. Prudential made TSGLI Electronic Payment Notifications (deposits) in his account on 15 February and 31 December 2013 in the total amount of $75,000. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150000090 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150000090 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2