IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20160005250 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: 12 July 2016 DOCKET NUMBER: AR20160005250 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: 12 July 2016 DOCKET NUMBER: AR20160005250 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 reconsideration and approval of the applicant's Traumatic Servicemembers' Group Life Insurance (TSGLI) claim for 15 days due to traumatic brain injury (TBI). 2. Counsel states: a. The TSGLI office denied the applicant's claim and his subsequent appeals for the applicant's loss of his abilities to perform activities of daily living (ADL) for 15 days due to TBI. He adds the findings are not consistent with the submitted statements and medical reports. Ignoring this evidence is in error and an injustice especially under the low burden of proof for the preponderance of the evidence standard. b. On 7 October 2007, the applicant was involved in a serious motor vehicle accident and suffered a closed head injury with left frontal and intraparenchymal hemorrhage and shear injury, right shoulder acromioclavicular separation, bilateral pulmonary contusion, and facial lacerations. He was hospitalized until 15 October 2007 when his father took custody and care of him, including the required assistance with ADL, and transported him to Wyoming. c. On 17 October 2007, the applicant experienced severe right chest pain and shortness of breath which caused him to be taken to the West Park Hospital Emergency Room. He was diagnosed with a moderate size pulmonary embolism that resulted in his transfer to St. Vincent Healthcare, Billings, MT, for treatment. He was discharged from the hospital on 20 October 2007. After his discharge, he required assistance with three ADL: bathing, eating, and transferring. He concludes that the evidence proves the applicant was unable to independently perform ADL without required assistance for 27 days (7 October 2007 to 3 November 2007). 3. Counsel provides: * medical documents * TSGLI Claim with supporting documentation * U.S. Army Human Resources Command (HRC) denial, dated 21 September 2015 * HRC letter, undated * compact disk (CD) containing – * "Exhibit A" – all previous claims with supporting documentation and denial letters, accident report, and a Civil Action Case * "Exhibit C" – 547 pages of medical record documents CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 17 November 2006. 2. The applicant's counsel provides a CD containing "Exhibit A" which includes all previous claims with supporting documentation and denial letters, accident report, and a Civil Action Case; and "Exhibit C" which includes 547 pages of medical record documents. His medical records show: a. On 7 October 2007, the applicant was admitted to the Pitt County Memorial Hospital, Greenville, NC, after his involvement in a rollover motor vehicle collision. He was originally transferred from Wilson Hospital, Wilson, NC, where a computerized tomography (CT) scan was conducted and revealed a tiny left frontal contusion. He was diagnosed as having a left temporal contusion. b. On 8 October 2007, the applicant underwent an acute physical therapy assessment that assessed his upright control balance, bed mobility/transitions, transfers, and cardiopulmonary/endurance. His assessment revealed impairments of neuromusculosketal and movement function, including endurance. He presented limitations in activity/restrictions in participation in mobility, including changing positions, maintaining positions, transfers, walking short distances on different surfaces, around obstacles, moving around the home, moving around the community, and stair climbing. The therapist assessed his ADL and the level of assistance required in the following positions: * feeding – independent, chair * grooming – contact guard, standing * dressing upper body – supervision, sitting on the edge of the bed * dressing lower body – minimal assist, sitting on the edge of the bed * bathing – minimal assist, due to pain in right shoulder, in chair at the sink * toileting – contact guard * toilet transfer – contact guard * shower/tub transfer – contact guard * balance – supervision, static and dynamic sitting * standing – contact guard, static and dynamic standing * fine motor skills/coordination – within functional limits (WFL) * writing skill – WFL c. On 15 October 2007, the applicant was discharged from the Pitt County Memorial Hospital. The discharge document states the applicant does not need TBI rehabilitation. d. On 17 October 2007, the applicant was admitted to St. Vincent Healthcare, Billings, MT, for placement of an inferior vena vava (IVC) filter for pulmonary embolus. His history states that 10 days ago he was involved in a car accident and suffers from a closed head injury with a small left subdural and some small intraparenchymal shear-type injuries. He also had a shoulder separation, pulmonary contusions, and some facial lacerations. He was in the hospital for 8 days; discharged on the 15 October 2007; and then returned to Cody, WY, with his father. He apparently developed right-sided pleuritic chest pain the day before he left Fort Bragg. However, it became worse after arriving in Cody. He went to the emergency department at West Park Hospital where a CT angiograph showed a moderately large right pulmonary embolus. He denies any headaches, blackout spells, or dizzy spells. The impression was stated as subdural hematoma, small resolving intraparenchymal hemorrhage, small pulmonary contusions, and a shoulder separation. e. On 18 October 2007, the physical examination noted the applicant was awake, alert, and oriented to person, place, and date. He had grossly normal and symmetric strength in the bilateral upper extremities and lower extremities. f. On 20 October 2007, the applicant was discharged from the hospital with instructions. He was diagnosed with pulmonary embolus and his diet, activity, and bathing were listed as tolerated. g. A St. Vincent Healthcare Outpatient Rehabilitation Consult Sheet, dated 30 October 2007, shows his ADL of eating, grooming, dressing, toileting, bathing, and tub transfer were all independent per the applicant. The consult sheet notes the applicant had a tub/shower combination that he steps over and the therapist tested his one-legged stance and it was good. The applicant had a slight instability on the left versus the right, but overall he had good one-legged balance. As far as his strength was concerned, the therapist said he was independent with the basic ADL and he had good balance for transfers and good upper extremity range of motion. h. A St. Vincent Healthcare Outpatient Rehabilitation Consult Sheet, dated 3 December 2007, states the applicant made very good progress in a short period of time in therapy. The therapist felt the applicant would be able to return to employment with no cognitive impairment. The applicant is able to demonstrate adequate active range of motion and strength without pain while performing functional tasks. He met the goal of cooking, financial management, grocery shopping, and driving. He demonstrated adequate right upper extremity function. 3. On 16 April 2013, an official at the Prudential Office of TSGLI informed him that the Army completed evaluating his TSGLI claim, but could not approve his claim for hospitalization. The official states that the number of days, including transportation time from the site of injury to the hospital, the day of admission, and the day of discharge, did not meet the TSGLI standard of 15 or more consecutive days in the hospital. Because the evidence indicates his hospitalization was not 15 days in length, the Army could not approve his claim. 4. On 21 August 2013, the applicant was honorably retired due to permanent disability. He completed 6 years, 9 months, and 5 days of active duty service. 5. The United States District Court for the District of Colorado, Civil Action Number 12-cv-01761-MSK-CBS, Fail, et al, versus United States, is a 34-page Opinion and Order Affirming, in Part, and Vacating, in Part, Agency Action in a case involving eight Soldiers who filed a class action lawsuit against the United States concerning TSGLI. The conclusion shows the court granted, in part, and denied, in part, each side's motion for summary judgment. 6. On 8 May 2014, an Independent Physician Reviewer provided a review on the applicant's TBI and associated shoulder injury. She states that based on her discussion of the case with the applicant and his father, after the applicant was discharged from the hospital on 20 October 2007, he was unable to independently perform all of his ADL primarily due to the TBI. He required standby assistance with bathing, verbal assistance with eating, and standby assistance with transferring until 3 November 2007. She provides a course of treatment time line from 7 October 2007 to 1 April 2008. This document was included and considered in the applicant's request for reconsideration. 7. On 11 September 2014, an official at HRC responded to the applicant's request for reconsideration of his claim for TSGLI. The official stated that at this time, they were unable to overturn the pervious adjudication. He also explained the procedure to submit a TSGLI appeal. 8. In a document signed on 21 September 2015, HRC provided a summary of the applicant's medical condition and a chronological history of his medical information. The representative states the applicant suffered a closed head injury with a left frontal lobe hemorrhage (bleed), a right shoulder acromioclavicular joint separation, a facial laceration, and bilateral pulmonary (lung) contusions (bruises). He was hospitalized from 7 October 2007 to 15 October 2007, primarily for his TBI. After being discharged from the hospital, he returned home to Montana for convalescent leave. In Montana he was readmitted to the hospital on 17 October 2007 for right-sided chest pain that was due to a pulmonary embolism (lung blood clot). An IVC filter was surgically placed on 17 October 2007 and he was discharged from the hospital on 20 October 2007. He was treated with occupational therapy (OT) and speech therapy (ST). Eventually, these conditions improved to where he was returned to duty with restrictions. The representative further states: a. The applicant claims TBI related to ADL loss of greater than 15 days from 7 October 2007 to 3 November 2007 for his inability to: bathe, requiring standby assistance; eat, requiring verbal assistance; and transfer, requiring standby assistance. b. The applicant was involved in a rollover motor vehicle accident in North Carolina on 7 October 2007. c. On 7 October 2007, a consultation note documents the traumatic event as a rollover motor vehicle collision. It records his Glasgow Coma Score as 15 (which is normal) and that he was intubated because he was combative. It diagnosed him with a left temporal contusion (bruising on the brain). d. On 8 October 2007 (day 2), the Acute Physical Therapy (PT) Assessment Note documents impairments in balance with standing and sitting, transitions with sitting to standing and vice versa, transfers from bed to chair, and ambulation. These areas required minimal assistance with two people. Restrictions were recommended for mobility involving changing positions, maintaining positions, transfers, walking, and stair climbing, and moving around the home. e. On 10 October 2007 (day 4), the applicant's Speech-Language Cognitive-Communicative Assessment Note documents the applicant exhibits moderate cognitive communicative disorder. It records cognitive impairments in disorientation to place and time, organization, immediate recall, complex problem solving, complex reasoning tasks, and simple multiplication and division. Acute OT Assessment Note assessed the applicant's ability to perform ADL. It determined he needed minimal assistance with bathing (although this is due to right shoulder pain and not TBI) and dressing his lower body. He needed a contact guard (accommodating equipment) for grooming, toileting, toilet transfer, shower/tub transfer, and standing. He required supervision for dressing his upper body and sitting and was independent in feeding himself. f. On 11 October 2007 (day 5), the Acute OT Assessment Note assessed the applicant's ability to perform ADL and determined he needed minimal assistance with bathing (although this is due to right shoulder pain and not TBI) and dressing his lower body. He needed a contact guard (accommodating equipment) for grooming, toileting, toilet transfer, shower/tub transfer, and standing. He required supervision for dressing his upper body and sitting and was independent in feeding himself. This note indicates assistance needed in two ADL areas consistent with TSGLI standards, dressing and bathing. However, dressing was not claimed as an area of loss on the TSGLI application, and the note indicates bathing is due to the right shoulder pain and not his TBI. The other ADL could be accomplished with accommodating equipment, or he was independent in those areas. g. On 12 October 2007 (day 6), the OT discharge recommendations document the applicant is cleared to be discharged from the hospital with a caregiver, but will require supervision 24 hours a day, 7 days a week. It also states no further OT needs are identified and recommends the applicant use a shower chair for safety. h. On 13 October 2007 (day 7), the Acute PT Treatment Plan documents no PT services were indicated at that time due to the applicant being stable in ambulation. i. On 15 October 2007 (day 9), his discharge summary reiterates the traumatic event and the hospital course. It records the applicant was ambulating independently and tolerated a diet. It states he had been cleared by PT, OT, and ST. It recommended a regular diet and weight bearing as tolerated. j. On 17 October 2007 (day 11), the History and Physical Note documents the applicant is readmitted to the hospital for surgical placement of an IVC filter for a right-sided pulmonary embolism that was causing chest pain. It records he denies any headaches, blackout spells, or dizzy spells. k. On 18 October 2007 (day 12), a Consultation Report Note documents the applicant was alert and oriented to person, place, and date. It records he had intact immediate recall memory with mild impairment of remote recall memory. He had mild impairment of higher cognitive functioning but had normal strength throughout all extremities. l. On 20 October 2007 (day 14), a Dismissal Summary Note documents the applicant was discharged again from the hospital on that date. It records the hospital course and recommended activities to be progressive, but low-level intensity. Discharge instructions listed the diet as tolerated, activity as tolerated, and bathing as tolerated. m. On 30 October 2007, the Headway Program Initial Evaluation Note documents the applicant was independent with basic ADL and had good balance for transfers. It records eating, grooming, dressing, toileting, bathing, and tub transfer are all independent per the applicant. n. On 3 December 2007, the Headway Program Discharge Summary Note documents the applicant had returned to living independently and is able to safely perform ADL (cooking, financial, management, grocery shopping, and driving). It states he was able to do up to 40 push-ups and felt that cognitively he would be able to return to employment. o. A contracted doctor recommends disapproval of the claimed TBI-related loss of ADL (bathe, eat, transfer) for 15 days or beyond. He states the applicant's father's statement that he provided ADL assistance to the applicant for an extended period is accepted without question. However, the fact that he did provide ADL assistance is not the standard for TSGLI payment. The standard is that the ADL assistance must have been rendered because without such assistance the Soldier could not have performed ADL in even a modified independent manner. The mild cognitive deficits described throughout the medical records concerning the period of claimed loss are simply not consistent with that level of impairment. p. The medical provider (TSGLI Physician Assistant) recommends denial of the claimed TBI-related ADL loss for 15 days or beyond. He states: (1) The applicant did suffer a concussion from the traumatic event and the medical record did show he initially had impairments due to TBI symptoms; however, these symptoms improved quickly. The OT assessment on 11 October 2007 (5 days after the traumatic event) does note minimal assistance needed for bathing and dressing, but bathing is due to his shoulder, not his TBI, and dressing is not claimed by the applicant. The record then notes he does not need further OT, PT, or TBI rehabilitation at day 6, 7, and 9 after the traumatic event respectively, indicating the TBI symptoms were not severe enough to warrant additional treatment. Furthermore, the discharge summary on day 9 states he is ambulating independently, and the history and physical on day 11 records denial of any dizzy or blackout spells. (2) A person described in such a manner would be able to bathe and transfer independently per TSGLI standards. The consultation note on day 12 did indicate some mild memory and cognitive impairment, which might support the applicant's claim of forgetting to eat; however, loss of one basic ADL does not qualify for benefits per TSGLI guidance. In addition, the discharge instructions on day 14 stated he can bathe and perform activities as tolerated with no mention of restrictions or need for assistance, and the evaluation note on day 24 clearly states he is able to perform basic ADL independently. Moreover, the applicant's claim of transfer loss is related to assistance needed to use stairs, which is not the TSGLI standard for loss of this ADL. Therefore, the applicant's claim does not qualify for payment related to TBI ADL loss for 15 days or greater. q. The Appeals Review Panel voted unanimously to recommend denial of the applicant's TBI-related ADL loss for 15 days or beyond. 9. On 11 February 2016, the HRC representative notified the applicant and his counsel that their appeal rights were exhausted and directed them to submit any further appeals to the Army Board for Correction of Military Records (ABCMR). 10. On an unknown date, the TSGLI office notified the applicant's counsel that after reviewing the applicant's claim and the supporting documentation, they were unable to overturn the previous adjudication. The agency stated the applicant suffered a concussion from his traumatic event, and the medical record shows he initially had impairments due to TBI symptoms; however, these symptoms improved within a week. Additionally, after a thorough review of his record, it determined he was able to bathe, eat, and transfer per the program standards prior to the 15-day milestone. REFERENCES: 1. Title 38, U.S. Code, section 9.20, covers traumatic injury protection. Subparagraph 9-20(b) states a traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being occurring on or after 1 December 2005, or on or after 7 October 2001 and through and including 30 November 2005, if the scheduled loss is a direct result of a traumatic injury incurred in Operation Enduring Freedom or Operation Iraqi Freedom. 2. Public Law 109-13, 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 $25,000.00 and $100,000.00 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. As of 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 $1.00 deducted each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI – it is a package. 3. 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 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: total and permanent loss of sight in one or both eyes, loss of hand or foot by severance at or above the wrist or ankle, total and permanent loss of hearing in one or both ears, loss of speech, loss of thumb and index finger of the same hand by severance at or above the metacarpo-phalangeal joints, quadriplegia, paraplegia or hemiplegic, third-degree or worse burns covering 30 percent of the body or 30 percent of the face, and coma or TBI. 4. The six ADL 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. 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 OT/PT 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. Counsel contends, in effect, that the applicant's TSGLI claim for loss of his abilities to perform ADL due to TBI for the period 7 October 2007 to 3 November 2007 should be reconsidered because the findings were not consistent with the evidence provided. 2. The evidence shows the applicant suffered a closed head injury with a left frontal lobe hemorrhage, a right shoulder acromioclavicular joint separation, a facial laceration, and bilateral pulmonary contusions on 7 October 2007 from a rollover motor vehicle accident. The medical records verify his progress after the traumatic event as follows: * day 2, 8 October 2007 – he was independently feeding himself and required minimal assistance bathing due to pain in his right shoulder * day 5, 11 October 2007 – the OT assessment indicated he needed minimal assistance with bathing (due to right shoulder pain and not TBI) and dressing * day 6, 12 October 2007 – no further OT needs were identified and recommended he use a shower chair for safety * day 7, 13 October 2007 – no PT services were indicated; he is stable in ambulation * day 9, 15 October 2007 – applicant ambulating independently, tolerating a diet, and cleared by PT, OT, and ST * day 11, 17 October 2007 – re-admitted to the hospital; denies any headaches, blackout spells, or dizzy spells * day 14, 20 October 2007 – discharged from the hospital with discharge instructions listing his diet, activity, and bathing as tolerated 3. Although the physician conducting an independent physician review argues that the applicant was unable to independently perform all of his ADL primarily due to the TBI until 3 November 2007, the evidence of record shows otherwise. The evidence shows by day 14, the applicant was ambulating independently, tolerating a diet, and was cleared by PT, OT, and ST. There is no evidence and neither the applicant nor his counsel provided sufficient documentation to support their contention that the applicant was unable to perform at least two ADL independently beyond the 15-day milestone. 4. On 8 May 2014, an Independent Physician Reviewer provided a review on the applicant's TBI and associated shoulder injury. She states that based on her discussion of the case with the applicant and his father, after the applicant was discharged from the hospital on 20 October 2007, he was unable to independently perform all of his ADL primarily due to the TBI. He required standby assistance with bathing, verbal assistance with eating, and standby assistance with transferring until 3 November 2007. She provided a course of treatment time line from 7 October 2007 to 1 April 2008. This document was included and considered in the applicant's request for reconsideration. 5. The applicant's counsel provided a civil action case in an effort to show the court granted some relief in a similar case. The ABCMR individually reviews each case properly brought before it based on its own merit and the evidence presented. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005250 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005250 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2