BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150014980 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 BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150014980 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. BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150014980 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 his request and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's earlier request to grant his Traumatic Service Members' Group Life Insurance (TSGLI) claim. 2. Counsel states her firm represents the applicant in his appeal for TSGLI benefits. Counsel provides new evidence on behalf of the applicant that was not considered by the Board when it denied his application. The new evidence is written by his observing doctor who was treating him at the time of the traumatic event. 3. Counsel provides: * Army Board for Correction of Military Records (ABCMR), Record of Proceedings, Docket Number AR20130015389, dated 18 June 2014 * Department of Veterans Affairs (VA) letter, issued by Hunter Holmes McGuire Medical Center, Richmond, VA, dated 20 August 2014 * Colonial Orthopaedics letter dated 4 November 2014, CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by ABCMR in Docket Number AR20130015389, on 18 June 2014. 2. The applicant submitted an initial petition for TSGLI and the Board denied his request on 18 June 2014. Through counsel, the applicant now offers new evidence in the form of a letter from Colonial Orthopaedics and a letter from the VA Medical Center, which the Board did not previously consider. Based on the foregoing, his request warrants consideration by the Board. 3. The applicant served in the Regular Army from 22 July 1992 through his retirement for permanent disability on 27 June 2015. He completed 22 years, 11 months, and 6 days of active duty service and achieved the rank/grade of master sergeant/E-8. 4. On 16 April 2010, the applicant was admitted to the Medical College of Virginia Hospitals and Clinics after suffering injuries in a motorcycle accident. His motorcycle went into a ditch and he was thrown 20 feet. He was wearing a full-face helmet and leather jacket. A Virginia Commonwealth University Health System Radiology Department Report, dated 16 April 2010, found there was a comminuted fracture of the body and neck of the scapula with numerous small displaced fracture fragments. Computed tomography (CT) scans revealed a severe and complex shoulder fracture. He was released the next day and referred to orthopedic surgery for consultation and possible surgery. 5. On 20 November 2012, the applicant filed a TSGLI claim for loss of ability to perform two activities of daily living (ADL) based on injuries he suffered from his motorcycle accident on 16 April 2010. (1) Unable to bathe independently from 16 April 2010 to 15 November 2010. Physical assistance and stand-by assistance were indicated. Assistance needed was described as getting in and out of the shower, opening shampoo, and toweling. (2) Unable to dress independently from 16 April 2010 to 15 November 2010. Physical assistance and stand-by assistance were indicated. Assistance needed was described as assistance with shirts, underwear, shoe ties, and belt. 6. On 24 November 2010, the applicant’s request for TSGLI was denied by Prudential, Office of Servicemembers' Group Life Insurance (SGLI), based on insufficient medical information to support his losses which did not meet the TSGLI standards for payment. 7. On 4 March 2013, the U.S. Army Human Resources Command (HRC) reconsidered the applicant’s request for TSGLI; however, they were unable to overturn the previous adjudication since the applicant did not meet the TSGLI standards for a loss of ADLs. 8. Counsel for the applicant submitted new evidence for reconsideration to the Board. He provided a letter from Dr. S_____, from Colonial Orthopaedics, dated 4 November 2014, which stated the applicant sustained a serious injury in 2010 which involved two surgeries and had incapacitated him from independently performing any of the following ADLs on his own: a. Unable to dress independently; unable to perform the ADL due to severe shoulder injury, pain, medication. He required physical and stand-by assistance from his wife and children in dressing himself with putting on and taking off of clothes, socks, and shoes. b. Unable to toilet and perform personal hygiene independently; unable to perform this ADL due to severe shoulder injury, pain, and medication. He required physical and stand by assistance from his wife when going to the toilet, getting clothes off and getting them on and help with cleaning afterwards. c. Unable to bathe independently; unable to perform this ADL due to the limited range of motion in the left shoulder. Required physical assistance and stand by assistance from his wife to bathe, towel, and transfer in/out of the shower. d. Unable to transfer independently; unable to perform this ADL due to severe shoulder injury, pain, and medications. He required physical and stand-by assistance from his wife and kids when moving in and out of bed and chairs. 9. Furthermore, Dr. S____ stated, this type of injury had restricted the applicant in his day-to-day living, in which he had been dependent on his wife and children to assist him in performing the above listed ADLs from 16 April 2010 through 9 July 2010. He had since been released back to work with restrictions. Four years since his injury, he continued to have limited range of motion and required assistance with ADLs due to the left shoulder. 10. Counsel also provided a letter, dated 20 August 2014, from the VA, which stated that Ms. R_____ S____ was the applicant’s occupational therapist from 2 October 2013 to 6 January 2014. The VA notes that “it was determined based on assessments and functional observations that the applicant required assistive devices, adaptive techniques, and physical assistance to perform basic and instrumental ADLs. The therapist stated that she could attest to the fact that while under her care, he was functionally impaired by the injuries sustained to his left upper extremity and not deemed independent in performance of ADLs." 11. On 31 August 2016, HRC provided an advisory opinion denying the applicant’s request for TSGLI. They stated, in pertinent part: a. “A new letter from [applicant’s] treating orthopedic surgeon, dated 4 Nov 2014, was presented to [the Army Review Boards Agency] as new evidence. It stated he could not dress, toilet, or transfer independently due to a severe shoulder injuring, pain, and medications. Additionally, he could not bathe independently due to a limited ROM in the left shoulder. The medical record does not support these statements. As early as Day 8 after the [traumatic event (TE)], the applicant had no impairment to cognition, coordination, or gait that could have been attributed to residuals from a possible traumatic brain injury or his pain medicine. This was reiterated on Day 25 after the TE. This letter does not appear to take into account [applicant’s] fully functioning right arm, both legs, and left hand, which would allow him to toilet and transfer in and out of bed, chair, and shower independently. With well-controlled pain, no residuals from a possible TBI, no significant side effects from the pain medicine, and full use of his non-injured extremities, he should be able to bathe and dress in a modified independent manner using adaptive behavior and accommodating equipment.” b. “A letter from [the applicant's treating occupational therapist at the VA], dated 20 Aug 2014, was also presented to [the Army Review Boards Agency] as new evidence. It stated the he required assistive devices, adaptive techniques, and physical assistance to perform basic and instrumental ADLs. The TSGLI standards are only concerned with basic ADLs, not instrumental ADLs. The use of assistive devices and adaptive techniques deem a person’s ADL performance independent, per TSGLI guidelines. Basic ADLs are basic self-care tasks (i.e., bathing, dressing, eating, toileting, transfers, etc.), while instrumental activities of daily living are the complex skills needed to successfully live independently. Instrumental ADLs includes the following: managing finances; handling transportation (driving or navigating public transit); shopping; preparing meals; using the telephone and other communication devices….Adaptive techniques were used to complete putting on and taking off shirts, which qualifies for independent performance of dressing (per TSGLI guidelines). Two-handed retrieval of items above chest height, sleeping on the left side and use of one upper extremity predominately for all functional tasks are not criteria for TSGLI payment of basic ADL loss. The letter ended with the statement, ‘He was not deemed independent in performance of instrumental ADLs.’ Yet, as stated above, TSGLI does not use instrumental ADLs as a criteria for payment of ADL loss.” 12. The applicant was provided a copy of the advisory opinion for an opportunity to respond. He did not respond. 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. 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. 3. 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. 4. 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. 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. DISCUSSION: 1. The evidence establishes that the applicant required medical care and support immediately following his accident on 16 April 2010 and follow-up care for months afterwards. 2. The applicant's orthopedic surgeon stated the applicant's injury had restricted him in his day-to-day living, in which he had been dependent on his wife and children to assist him in performing four ADLs from 16 April 2010 through 9 July 2010. He had since been released back to work with restrictions. Four years since his injury, he continued to have limited range of motion and required assistance with ADLs due to the left shoulder. 3. A VA occupational therapist observed that the applicant required assistive devices, adaptive techniques, and physical assistance to perform basic and instrumental ADLs. The therapist stated she could attest to the fact that while under her care, he was functionally impaired by the injuries sustained to his left upper extremity and not deemed independent in performance of ADLs 4. Regarding the letter from the orthopedic surgeon, HRC opined that the surgeon “…does not appear to take into account [the applicant’s] fully functioning right arm, both legs, and left hand; which would allow him to toilet and transfer in and out of bed, chair, and shower independently. With well-controlled pain, no residuals from a possible TBI, no significant side effects from the pain medicine, and full use of his non-injured extremities, he should be able to bathe and dress in a modified independent manner using adaptive behavior and accommodating equipment.” 5. Regarding the observations of the VA occupational therapist, HRC opined that the therapist focused on instrumental ADLs, which are not used as criteria for payment of ADL loss. 6. The advisory official found no evidence of a qualifying ADL loss that would serve as a basis for payment of TSGLI in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014980 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014980 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2