IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150005477 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests award of Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits to the applicant. 2. Counsel states: a. On 12 December 2007 while serving as a member of Company A, 6th Battalion, 4th Psychological Operations Group (Airborne), the applicant was directed to participate in an airborne operation as part of his required duties. During the 1,650-foot jump, he experienced a parachute malfunction which caused his parachute to deploy at approximately 100 to 200 feet, plunging the applicant toward the ground at a speed which was significantly faster than the normal rate of descent. This increased rate of descent caused the applicant to hit the ground with extreme impact. Upon landing, the applicant immediately experienced severe pain and tension in his lower back, as well as numbness and tingling in his face and hands. X-rays and a magnetic resonance imaging performed on 14 December 2007 determined he suffered a severe compression fracture of the L1 vertebrae as a direct result of the extreme impact he suffered during the landing. b. On 16 December 2007, he was placed in a Jewett back brace, a device which runs from the collarbone to pelvis, and is designed specifically to restrict movement in an effort to prevent further injury in cases of fracture. He was required to remain in the brace for approximately 18 weeks following the date of the injury. In regard to this fact, the back brace which the applicant was required to use for this extended period of time is, in fact, an immobilizing device and is not to be considered adaptive equipment/adaptive technology as defined in Title 29, U.S. Code, section 3002(4). This title states the term "assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities. c. On 13 August 2008, the applicant underwent a vertebroplasty and fluoroscopy procedure in an effort to stabilize the severe spinal injuries he sustained as a result of the landing incident. The vertebroplasty and fluoroscopy procedure proved unsuccessful and the applicant was then referred to Duke University Hospital where he underwent surgery (i.e., L1 corpectomy, T12-L2 fixation and fusion, and insertion of an internal plating system and cage system) on 13 October 2008 in an attempt to repair and stabilize his spine. d. Following the major surgical intervention required to repair the severe spinal injuries the applicant sustained in the line of duty as a result of his parachute malfunction and subsequent high-impact landing (as is clearly evidenced and defined in the applicant's TSGLI Part B certification completed by the surgeon who performed the procedure and supporting documentation attached), the applicant was completely unable to perform multiple activities of daily living (ADL), to include dressing/undressing, bathing, toileting, and transferring for a period of not less than 90 days without full assistance from another person. e. The applicant required standby assistance from another person to perform the above mentioned ADL for an additional period of not less than 30 days, for a total of not less than 120 days of loss of ADL. Despite ongoing treatment, the applicant remains permanently disabled as a result of this incident and was subject to medical discharge from the Armed Forces as a result of his inability to perform his assigned duties directly due to the injuries he sustained. f. Given the substantial evidence regarding his injuries and consequential loss of ability to perform ADL, the applicant clearly meets the criteria for eligibility set forth in the TSGLI Schedule of Losses. 3. Counsel provides: * applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) * applicant's TSGLI application * applicant's TSGLI denial letters * statements from the applicant's company commander, company first sergeant, and wife * applicant's medical documentation CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 2 February 2006 for a period of 4 years. He completed his training and was awarded military occupational specialty 37F (psychological specialist). 3. Counsel provides medical records which show: a. The applicant reported for sick call at the Womack Army Medical Center on 14 December 2007. The reason for his visit states he had a parachute malfunction and hard landing while participating in an airborne operation on 12 December 2007 and immediately experienced pain and tension in his lower back. He also experienced numbness and tingling in his face and hands. His medical history noted he was informed in April 2007 that he has three degenerative discs in his back, L3-5, as a result of a jump injury. He was diagnosed with a closed fracture of lumbar vertebral body L1 compression and placed in a Jewett back brace. He was released from Womack Army Medical Center without limitations on 14 December 2007. b. He began physical therapy on 12 May 2008. c. On 13 August 2008, he underwent surgery (i.e., L1 vertebroplasty and fluoroscopy). d. On 13 October 2008, he underwent surgery (i.e., left thoracoabdominal approach for L1 corpectomy and T12-L2 fixation and fusion using a plating system and cage system). 4. On 1 February 2010, he was honorably released from active duty by reason of completion of required active service. He completed 4 years of net active service during this period. 5. Counsel provided a TSGLI application, dated 19 February 2015, wherein counsel, having power of attorney for the applicant's interests relating to his TSGLI claim, reported the applicant experienced a parachute malfunction on 12 December 2007 which caused his parachute to deploy at approximately 100 to 200 feet, plunging the applicant toward the ground at a speed which was significantly faster than the normal rate of descent. Counsel reiterated the same contentions as previously addressed in these proceedings. Counsel also stated the applicant was completely unable to perform the ADL of dressing, bathing, toileting, and transferring without the assistance of another person for a period of not less than 120 days following his initial injury and the major surgical intervention required to repair the severe spinal injuries he sustained in the line of duty as a result of his parachute malfunction and subsequent high impact landing. 6. Part B (Medical Professional's Statement) of the applicant's TSGLI application, dated 18 June 2012, shows the attending physician stated the applicant could not perform bathing, dressing, or toileting independently during the period 12 December 2007 to 13 August 2008. 7. Part B of the TSGLI application also shows the applicant's attending physician stated: a. The applicant was in an airborne operation on 12 December 2007 when his parachute partially deployed at 1,250 feet and he suffered a 25-percent compression fracture of L1. He continued to have pain and muscles spasms in his back, even with the Jewett brace, medications, and physical therapy. On 13 August 2008, he had left-sided L1 vertebroplasty surgery. b. The applicant needed physical and/or stand-by assistance to undress, get in and out of the bath, and to bathe his lower extremities. c. The applicant needed physical and/or stand-by assistance to put on his pants, socks, and shoes. d. The applicant needed physical and/or stand-by assistance to take his clothes off and on and to get off the toilet. e. The applicant had a second surgery on 13 October 2008 for fusion because of persistent pain and back spasms and notes, dated 20 May 2009, describe his continued disability. 8. On 17 June 2013, the U.S. Army Human Resources Command Special Compensations Branch (TSGLI) reconsidered the decision of the applicant's previous claim and was unable to overturn the previous adjudication. The letter to the applicant states his claim was not approved because the medical documents submitted for his event which took place on 12 December 2007 did not indicate he met the TSGLI standards for loss of ADL. The medical documentation did not indicate his back injury rendered him incapable of performing the ADL of bathing, continence, dressing, eating, toileting or transferring that are covered by TSGLI standards for 30 consecutive days or greater. The letter advised him that if a Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (e.g., cane, crutches, wheelchair), then the Soldier is considered able to independently perform the activity. 9. On 9 October 2013, the U.S. Army Human Resources Command Special Compensations Branch (TSGLI) denied the applicant's appeal request for TSGLI. 10. Counsel provided the following additional documents in support of the applicant's request: a. An undated letter from the applicant's company first sergeant attests that the applicant was a subordinate Soldier in his company from July 2007 to February 2010. On 12 December 2007, the applicant performed a static line parachute jump for training. The applicant stated he experienced a minor malfunction that caused his rate of descent to be substantial enough to cause an injury to his back. The assigned medic for this operation determined that it was not necessary for the applicant to be further examined. The applicant's pain condition continued to worsen after 2 days of rest and, upon recommendation, the applicant went to the Womack Army Medical Center on 14 December 2007. Medical staff determined he had sustained a compression fracture of his L1 vertebrae during that evaluation. He continued to experience pain until his departure from active duty. b. A letter from the applicant's wife, dated 24 February 2014, states her husband was injured in December 2007 when his parachute didn't open and he broke his back. During the following 5-6 months, she had to help him with everything involving the use of his back. She helped him get in and out of bed, use the restroom, and stand. Over the next year she had to help him put on his socks, pants, and shoes. She had to help him stand up after getting dressed. She would give him a sponge bath while he stood in the shower. After the initial injury, he had a procedure in August 2008 that was supposed to help, but it only made his back worse because it was done improperly. Two months after that he had major surgery. She continued to help him with almost everything over the course of that year. It's been over 6 years since he was injured in the jump and he still needs her to help him get in and out of bed, get on and off the couch, and sometimes assist with putting on his socks, shoes, and pants. c. A letter from his company commander, dated 12 December 2004, states the applicant was under his command from July 2007 to February 2010. Due to the applicant's military occupational specialty and his assignment to the 4th Psychological Operations Group (Airborne), he was required to conduct regular static line parachute jumps. On 12 December 2007, he was directed to take part in an airborne operation as part of his required duties. During this jump, he experienced a parachute malfunction which caused him to fall faster than the normal rate of descent. Upon landing, the higher rate of descent caused him to impact much harder than normal and the applicant experienced immediate pain in his lower back. Based on the recommendations of the medic working at the drop zone, he was sent home to rest for a period of 2 days. After the 2 days of rest, the applicant continued to experience severe lower back pain. On 14 December 2007, the command sent the applicant to Womack Army Medical Center for further evaluation and testing which revealed a compression fracture of the L1 vertebrae due to the extreme impact of the parachute landing. This injury was determined to be in the line of duty. 11. A letter from the U.S. Army Human Resources Command Special Compensations Branch (TSGLI), dated 4 March 2015, stated: * the applicant's TSGLI appeal request had been received * he had exhausted his appeal rights * his claim was previously denied at the initial, reconsideration, and appeal levels * he may submit any further appeals to the Army Review Boards Agency 12. The Center for Prosthetics Orthotics, Incorporated, defines the Jewett hyperextension thoraco lumbar sacral orthoses (TLSO) as a device used mainly to treat fractures between T6 and L3. Every TLSO is designed to provide support and immobilization of the thoracic and lumbar regions following various surgical procedures/ traumatic injuries. TLSOs are commonly used to help treat post-operative thoracic/lumbar fusion, laminectomy or discectomy, compression fractures, degenerative disc disease, osteoporosis, single column spinal instability immobilization, and facet syndrome. 13. 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. U.S. Army Combat-Related Special Compensation (CRSC) was designated as the lead agent for implementing the Army 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 $25,000.00 and $100,000.00 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. 14. There are some specific circumstances under which a traumatic injury will not be covered by TSGLI. A qualifying traumatic injury is an injury or loss caused by application of external force or violence (i.e., traumatic event) or a condition whose cause can be directly linked to a traumatic event. Traumatic injuries covered may include but are not limited to the following types of losses: a. total and permanent loss of sight in one or both eyes; b. loss of hand or foot by severance at or above the wrist or ankle; c. total and permanent loss of hearing in one or both ears; d. loss of speech; e. loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints; f. quadriplegia, paraplegia, or hemiplegia; g. third-degree or worse burns covering 30 percent of the body or 30 percent of the face; h. coma or traumatic brain injury; or i. other traumatic injuries resulting in the inability to carry out two of the six ADL, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform two of the six ADL for 30 days or more (15 days or more in the case of traumatic brain injuries). 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record does not support counsel's contention that the applicant was medically discharged as a result of his inability to perform his assigned duties directly due to the injuries he sustained. The evidence shows he was honorably released from active duty on 1 February 2010 by reason of completion of his required active service. 2. The evidence shows the applicant was injured in December 2007 during an airborne operation, he suffered a back injury, and he was placed in a back brace for a few months. He underwent corrective surgery in August 2008 and a second surgery in October 2008. 3. Counsel contends the back brace which the applicant was required to use is an immobilizing device and is not adaptive equipment/adaptive technology as defined in Title 29, U.S. Code, section 3002(4). However, section 3002(4) specifically defines an assistive technology device as any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities. A Jewett brace is a hyperextension brace that prevents the patient from bending forward too much and is often used to facilitate healing of a compression fracture involving the T10 to L3 vertebrae. 4. Counsel also contends the applicant was unable to bathe, dress, toilet, and transfer independently for a period of not less than 120 days. 5. 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. Counsel provided a TSGLI application filed 5 years after the injury in which the applicant's attending physician stated the applicant was unable to perform three ADL during the period 12 December 2007 to 13 August 2008. However, no substantiating documentation was attached. 7. Counsel's remaining contentions and the supporting documentation provided were carefully considered. However, the documentation submitted does not indicate the injury rendered the applicant incapable of performing any ADL for 30 days or more per TSGLI guidelines. Further, it appears he first applied a claim for TSGLI approximately 5 years after the injury occurred. 8. In view of the aforementioned evidence, there is an insufficient basis for granting the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ___X_____ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20150005477 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005477 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1