IN THE CASE OF: BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150012456 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150012456 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his application for Traumatic Service Members Group Life Insurance benefits was approved and paying him in accordance with the program rules. __________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: 10 January 2017 DOCKET NUMBER: AR20150012456 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, in effect, consideration of the applicant's Traumatic Servicemember's Group Life Insurance (TSGLI) claim for loss of activities of daily living (ADLs) for 120 days. Counsel requests a teleconference (via Skype or any other service) if a review of the applicant’s records is determined not to be enough to warrant a reversal of the decision to deny the TSGLI claim. 2. Counsel states: a. The TSGLI office has denied the applicant’s application and subsequent appeals for the loss of ADLs and limb salvage claim. The finding is not consistent with the statements submitted and medical reports. b. The TSGLI office refused to consider new and material evidence on 17 June 2015. As such, ignoring new and material evidence as well as the underlying decisions were in error and an injustice. c. Statements and evidence in the applicant's medical records show he required assistance in performing at least two of his ADLs over 120 days and the limb salvage surgery was due to heat stroke, which is specifically covered by TSGLI guidelines. d. The statements and medical records were ignored or unjustifiably discounted, which makes the findings of the TSGLI office unjust and erroneous. 3. Counsel provides: * Proof and Acknowledgement of Representation * excerpt of the TSGLI Procedures Guide * Application for TSGLI Benefits with supporting documents CONSIDERATION OF EVIDENCE: 1. On 11 October 2006, with 7 years, 8 months, and 14 days of net active Regular Army (RA) service, the applicant was discharged to accept appointment in the RA as a commissioned officer in the rank of second lieutenant (O-1). He was promoted to first lieutenant (O-2) on 12 April 2008 and he was promoted to captain (O-3) on 23 March 2010. 2. Records from WakeMed Health and Hospital, Raleigh, NC, show on 30 October 2010 the applicant was admitted for altered mental status, rhabdomyolysis (a condition in which damaged skeletal muscle breaks down rapidly), coffee-ground emesis (vomit that looks like coffee grounds due to the presence of coagulated blood), and compartment syndrome (a painful condition that occurs when pressure within the muscles builds to dangerous levels). Per family and friends, the applicant "went drinking last night" and came home around 3:00 a.m. He was not seen again until 5:00 p.m. when he was found down at home by his wife. He was covered in coffee ground emesis and melena (dark sticky feces containing partly digested blood). He was altered and essentially unresponsive. He was transferred by emergency medical services to WakeMed. The doctor's impression was: a. Altered mental status – Concerning for anoxic brain injury/versus substance abuse or alcohol abuse, less likely infectious etiology. Also, possible seizure with postictal confusion, possible cerebrovascular accident. b. Rhabdomyolysis – This is secondary to lying on the ground for a prolonged period of time. c. Acute renal failure secondary to rhabdomyolysis. d. Lactic acidosis secondary to renal failure and rhabdomyolysis. e. Transaminitis (elevated levels of certain liver enzymes) – This is secondary to alcohol. f. Gastrointestinal bleed – Also secondary to alcohol. g. Bilateral upper extremity compartment syndrome – secondary to lying on the ground. h. Leukocytosis and elevated hematocrit. i. Elevated INR (an indicator of how long it takes blood to clot – an elevated INR indicates increased risk of internal bleeding). 3. On or about 9 August 2011, the applicant completed and submitted his application for TSGLI benefits, which was later denied. He claimed OTI (other traumatic injury) ADL loss (salvage of his left and right arms) due to multiple surgeries that resulted from a heat stroke, which left him with severe and debilitating compartment syndrome. In Part B (Medical Professional's Statement), a physician form Womack Army Medical Center, Fort Bragg, NC, reported that the applicant had suffered heat stroke and had multiple surgeries for bilateral compartment syndrome that was caused from lying on the floor for over 18 hours. The physician reported that, due to the loss of use of his hands, the applicant was unable to independently perform the following ADLs for the periods indicated: * unable to bathe independently – 30 October 2010 to 1 July 2011 * unable to dress independently – 30 October 2010 to 15 April 2011 * unable to eat independently – 30 October 2010 to 1 February 2011 * unable to toilet independently – 30 October 2010 to 1 March 2011 * unable to transfer (i.e., get in and out of bed) independently – 30 October 2010 to 24 November 2010 4. The applicant's Medical Evaluation Board Proceedings are not available for review. His record does contain his Physical Evaluation Board (PEB) Proceedings, which show that on 18 November 2011 the PEB convened to determine whether the applicant was physically unfit for retention on active duty. The PEB found the applicant unfit based on the following conditions: * cognitive disorder and anxiety with panic attacks (listed as heat stroke with neurocognitive deficits on the DA Form 3947 (Medical Evaluation Board Proceedings)) rated at 50 percent * right upper extremity compartment syndrome, dominant, (listed as complex regional pain syndrome, bilateral upper extremities on the DA Form 3947) rated at 20 percent * left upper extremity compartment syndrome, non-dominant, (listed as late effects of bilateral forearm compartment syndrome on the DA Form 3947) rated at 20 percent 5. The PEB noted the onset of the applicant's conditions was on 30 October 2008 (sic) when he suffered a heat stroke at his residence and that his conditions were unfitting for retention in the Army. The PEB recommended that he be permanently retired by reason of physical disability with a combined disability rating of 70 percent. (The applicant's case was adjudicated as part of the Integrated Disability Evaluation System (IDES), which means he was concurrently assessed for conditions that did not meet military retention standards as well as service-connected disabilities eligible for compensation by the Department of Veterans Affairs (VA). Under IDES, the VA examines the Soldier and assigns disability ratings. The Army then applies those ratings to any unfitting conditions.) 6. On 28 February 2012, the applicant was retired by reason of permanent physical disability. He completed 13 years, 1 month, and 1 day of total active service. 7. On or about 9 April 2012, the applicant submitted a request for reconsideration of his TSGLI claim. By letter dated 6 July 2012, he was notified by the U.S. Army Human Resources Command, TSGLI Branch, that the TSGLI program office had reconsidered his previous claim and they were unable to overturn the previous adjudication. He was told the documents provided for his claim did not indicate that his losses were the result of a qualifying traumatic event. He was told the TSGLI Procedures Guide defines a traumatic event as "the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body." 8. On 7 July 2013, the applicant submitted an appeal of the denial of his TSGLI claim. On 1 October 2013, by letter, the Special Compensations Branch, U.S. Army Human Resources Command, notified him that after reviewing his claim and supporting documentation, they were unable to overturn the previous adjudication. He was told the documentation he submitted immediately following the event that took place on 30 October 2010 did not support the event as claimed. He was told that his documents did not indicate he suffered a loss resulting from a qualifying traumatic event. He was again told the TSGLI Procedures Guide defines a traumatic event as "the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body." He was advised that if he chose to appeal the decision, he was required to submit his notice of disagreement to the Army Review Boards Agency. 9. On 29 June 2015, the Special Compensations Branch, U.S. Army Human Resources Command, advised the applicant that he had exhausted his appeal rights and again advised him of his right to appeal to the Army Review Boards Agency. 10. Counsel provides page 4 of the TSGLI Procedures Guide which provides the basic definition of a traumatic event. It states, "A traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body." It also states, "Exposure to the elements includes heat stroke and frostbite. In such cases the severe exposure to the heat and cold are traumatic events in and of themselves. For example, being diagnosed with heat stroke after collapsing during a physical training run in scorching temperatures would be a traumatic event." 11. In a letter to the U.S. Army Human Resources Command, dated 17 June 2015, counsel described the cause of the applicant's heat stroke. He stated: [O]n October 30, 2010, [the applicant] was chopping down trees in his back yard. A fire was started to burn the debris. Hours later, he felt extremely tired and weak. So, he went in the house and laid down on the couch. When he did not show up at a family gathering the next day, a neighbor was called to check on him. He was found unconscious on the floor, with both arms crushed underneath him. EMS was called to transport him to WakeMed Hospital, Raleigh, NC, for emergency care. [Following diagnosis and surgery] he remained hospitalized until November 24, 2010. At which time, he was discharged home to the care of his wife…With dressings on both arms/hands he was unable to use his upper extremities for months. Counsel continued, noting that heat stroke may be the result of a traumatic event and contending that, "Like collapsing during a physical training run in scorching temperatures, [the applicant] physically exerted himself while chopping wood with an axe, which coupled with the heat from the fire, caused heat stroke." 12. An Independent Nurse Reviewer reviewed medical records provided to her by the applicant and his counsel. In a memorandum dated 17 June 2015, she summarized the medical treatment the applicant received. a. She noted that, while in WakeMed Hospital, the treating physician found his injuries were secondary to passing out after alcohol abuse. The Independent Nurse Reviewer noted no alcohol was detected in his blood. His blood alcohol level was negative at <5 on a range of 0 to 80 micrograms/deciliter. Once he was discharged, the applicant's care was transferred to his military primary care doctor at Fort Bragg, NC. The military doctor informed the applicant his injuries were due to heat stroke, not alcohol intoxication. The applicant was referred to medical specialists for after-care treatment of heat stroke and he was given a pamphlet on heat stroke. b. The Independent Nurse Reviewer compared the applicant's circumstances to the criteria for TSGLI, and she argued that he met the criteria. She again addressed the misdiagnosis of alcohol intoxication, noting that with acute failure of the liver, the applicant's body would have been unable to break down the alcohol resulting in an elevated blood alcohol level. With acute renal failure, there would have been no excretion of the alcohol, resulting in an elevated blood alcohol level. Had he even a small amount of alcohol present in his system, the blood alcohol level would have been elevated as the body would have been unable to filter and excrete the alcohol. 13. In a statement dated 16 June 2015, the applicant provided his version of the events that took place on 30 October 2010. a. He admitted he could not remember the events, but now "pretty much" knew what happened based on paper records and speaking with individuals who were there. He recalls burning debris from the yard and going into the house at about midnight and laying down on the couch. The next day a neighbor who was a police officer came over and looked in the window after receiving a call from the applicant's wife. His wife was at her sister's house about an hour away and he was supposed to be there. His wife could not reach him, which is why she called the neighbor. The neighbor found him lying face down and called another neighbor over to assist. They found him in very poor condition and called a nurse who lived next door to assist. She came over, and the other neighbors had already call 911. b. He went to the hospital and woke up a week later, still not knowing what had happened. His doctor at WakeMed Hospital was saying that, because his neighbors stayed out at the fire pit drinking and hanging out, he must have been drinking, too, and passed out as a result. He stated his wife said she only saw this doctor once. He states, in effect, that the doctor made assumptions based on statements the nurse who lived next door made to the emergency medical services crew to transported him to the hospital. The nurse didn't like her husband "hanging out" and her husband probably had a hangover the next day as he and others were hanging out by the fire in the applicant's back yard. His neighbors were the ones partying. He was in the house "the whole time." c. When he was released from the hospital and transferred to his military primary care physician, who disagreed with the emergency room doctor's assessment of the cause of his condition. His primary care physician stated any alcohol would have stayed in his body because his organs were in failure. He further stated that his primary care physician explained to him that he was overheated from using an axe and from the fire, which was the cause of his condition. 14. The applicant's spouse also provided a statement, dated 16 June 2015, in which she essentially confirms the events described by the applicant. She states he could not have been out all night drinking because she saw him on the couch asleep at 1 a.m. She had left him at 11:30 p.m. and he had not finished his beer. She contends, in effect, that no one could consume enough alcohol in that amount to time to put him in that condition. Based on his test results, his military doctor said he had heat stroke. 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. U.S. Army Combat-Related Special Compensation (CRSC) has been 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 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. 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 (a 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 metacarpophalangeal joints; f. quadriplegia, paraplegia or hemiplegic; g. third degree or worse burns covering 30 percent of body or 30 percent of the face; h. coma or traumatic brain injury; and i. other traumatic injuries 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 (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 won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 3. The TSGLI Procedures Guide provides the following definitions: a. Traumatic Event – The application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body. b. External Force – A force acting between the body and the environment, including a contact force, gravitational force, or environmental force, or one produced through accidental or violent means. c. Direct Result – There must be a clear connection between traumatic event and resulting loss. d. Traumatic Injury – The physical damage to one's body that results from a traumatic event. 4. The revision history of the TSGLI Procedures Guide shows an explanation of heat stroke/frostbite as traumatic events was added on 4 October 2013 in revision 2.21. The TSGLI Procedures Guide provides that exposure to the elements includes heat stroke and frostbite. In such cases, the severe exposure to the heat and cold are traumatic events in and of themselves. For example, being diagnosed with heat stroke after collapsing during a physical training run in scorching temperatures would be a traumatic event. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends that he should be paid TSGLI benefits for loss of ADLs after he suffered heat stroke. 2. WakeMed Hospital records show that on 30 October 2010 the applicant was admitted to the hospital with several debilitating conditions. Hospital medical records state that, per family and friends, the applicant went drinking and came home around 3:00 am. He was not seen again until 5:00 pm later that day when he was found down at home by his wife. He was covered in coffee ground emesis and melena. He was altered and essentially unresponsive. The WakeMed Hospital records, in effect, attribute his condition to alcohol use. 3. On 18 November 2011 a PEB convened to determine whether the applicant was physically unfit for retention on active duty. In the PEB proceedings, it was noted that the onset of the applicant's unfitting conditions was when he suffered heat stroke at his residence. 4. The available Army records clearly show he was found to have had heat stroke that led to the conditions that resulted in his retirement for permanent disability. The available Army records make no mention of alcohol use as a contributing factor to his condition. 5. A qualifying traumatic injury is defined as a physical injury or a loss caused by the application of external force or violence or a condition whose cause can be directly linked to a traumatic event. A traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body. The TSGLI Procedures Guide provides that exposure to the elements includes heat stroke and frostbite. In such cases, the severe exposure to the heat and cold are traumatic events in and of themselves. For example, being diagnosed with heat stroke after collapsing during a physical training run in scorching temperatures would be a traumatic event. 6. The Special Compensations Branch, U.S. Army Human Resources Command, advised the applicant that documentation immediately following the event that took place on 30 October 2010 did not indicate that he had suffered a loss resulting from a qualifying traumatic event. Their correspondence with the applicant did not address the diagnosis of heat stroke later confirmed by his Army physician and further confirmed by the PEB as the precipitating factor leading to the conditions that led to his retirement for permanent physical disability. The TSGLI Procedures Guide was revised to add an explanation of heat stroke/frostbite as traumatic events shortly after denial of the applicant's claim on 1 October 2013. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012456 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012456 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2