SAMA-RB 13 January 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160006779 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 20 September 2016, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 1o, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by granting relief such that applicant's records are corrected to reflect that she suffered a loss of two or more ADLs for more than 30 (but fewer than 60) days and pay her TSGLI benefits for this loss. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 15 May 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160006779 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: 20 September 2016 DOCKET NUMBER: AR20160006779 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: 20 September 2016 DOCKET NUMBER: AR20160006779 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. Through a court remand, the applicant requests correction of her military records by showing she qualified for Traumatic Servicemembers’ Group Life Insurance (TSGLI) benefits. 2. The applicant makes no additional statement. 3. The applicant provides a copy of an Order and Memorandum Opinion from the U.S. District Court, Western District of Kentucky, dated 29 March 2016 (19 pages). CONSIDERATION OF EVIDENCE: 1. On 29 March 2016, the U.S. District Court, Western District of Kentucky rendered an order wherein the court denied the motion of the United States for a summary judgment; granted the applicant a summary judgment, sua sponte; vacated the prior decision of this Board; and remanded the case back to this Board. The Court rendered a memorandum opinion, as summarized below: a. On 6 September 2011, the applicant, a member of the Army National Guard (ARNG), suffered a gunshot wound to her foot while at an IHOP (International House of Pancakes) in Carson City, Nevada. The Army denied her claim for benefits under the TSGLI insurance program. After several appeals and a final denial, she sued the United States. The United States moved to dismiss for lack of jurisdiction, or in the alternative, moved for a summary judgment. The court denied the motion and granted a summary judgment for the applicant. b. Subject matter jurisdiction is always a threshold determination. As always, the party invoking federal jurisdiction has the burden to prove that jurisdiction. TSGLI is an automatic rider to the Servicemembers' Group Life Insurance (SGLI) program. The program provides a benefit when a servicemember suffers a traumatic injury. The governing statutes say the district courts of the United States shall have original jurisdiction of any civil action or claim against the United States brought under the SGLI program. The United States argued that this Court lacked subject matter jurisdiction over two of the Plaintiff’s claims; but conceded that this Court had jurisdiction pursuant to Title 38, United States Code (38 USC), and that any member who receives an adverse TSGLI decision may obtain judicial review in any United States District Court of competent jurisdiction. The United States' argument that the Court lacked subject matter jurisdiction because the complaint's prayer for relief seeks a judgment of money damages was without merit. A claim can be sufficient for subject-matter jurisdiction purposes even if it is unsuccessful and possibly verging on the foolhardy in light of prior precedent barring the relief sought. The Court found that it has subject matter jurisdiction under 38 U.S.C. § 1975 to hear the applicant’s claim for an alleged wrongful denial of benefits under the TSGLI Program. c. The summary judgment standard requires that any party moving for a summary judgment must show there is no genuine dispute of any material fact and the movant is entitled to judgment as a matter of law. The standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. d. A certified administrative record provides that on 6 September 2011, around 9:00 am, the applicant was dining at an IHOP restaurant in Carson City, Nevada with four other uniformed members of the ARNG. A gunman opened fire, killing three National Guardsmen and a woman. The applicant suffered a gunshot wound to her left foot. She underwent emergency surgery to remove dead tissue, sharp bone fragments, bullet fragments, and to place a metal external fixation device to the left side of her left foot. The day after the shooting, the hospital discharged her. The discharge notice advised activity as tolerated, no driving, avoid tub bath, keep leg elevated, use ice pack for 20-30 minutes every 2-3 hours as necessary, keep incision area dry, and no weight bearing on left foot until cleared. Other discharge records indicated that she needed assistive equipment for ambulation and an assistive person for transferring, toileting, bathing, and dressing. e. In September 2011, the applicant applied for TSGLI program benefits. Under Part A of the application, she wrote “I was shot in the foot by a gunman who came into the IHOP and shot a group of five Soldiers. I watched my commander and supply sergeant die, then rendered aide to my PSNCO (personnel noncommissioned officer), training NCO, and to a civilian who got caught in the cross-fire. I was shot in the foot and will consequently need a few surgeries to repair what little bones I have left.” f. Under Part B of the application, a medical professional described the applicant’s inability to independently perform activities of daily living (ADLs). The applicant’s treating orthopedic surgeon (Dr. G___ L______) certified in Part B that she could not stand on her injured foot and was unable to bathe independently, but he did not indicate that she was unable to perform any other ADLs. g. Throughout the fall of 2011, the applicant saw Dr. G___ L______ for follow-up visits and treatment. On 11 October 2011, Dr. G___ L______ removed the external fixation device without anesthesia. The first notation in her medical records indicating she could tolerate weight bearing is dated 27 October 2011. In December 2011, she underwent reconstructive surgery. Four weeks after reconstructive surgery, she was walking using a boot. h. On 19 December 2011, the TSGLI program denied the applicant’s claim for benefits (because there was not enough medical information to support that she could not perform ADLs independently). i. In January 2012, the applicant filed for reconsideration. On 11 April 2012, the TSGLI program declined to overturn the previous decision because “the application only claimed the ADL loss of bathing. According to TSGLI standards, a service member must be incapable of performing two or more of the six ADLs for a period of 30 days or greater. Also, there was no supporting medical documentation submitted with her claim. We must have medical documentation from the period for which you are claiming that supports your (ADL) losses. Such documentation could include discharge summaries, nurse's notes, occupational or physical therapy reports, etc.” j. By 14 February 2012, her physician had transitioned her to regular shoes; and she was to begin physical therapy. k. On 15 October 2012, with the assistance of legal counsel, the applicant appealed to the U.S. Army's Human Resources Command (HRC). Under Part B Dr. G___ L______ certified that from 6 September to 20 October 2011, she was unable to independently bathe, dress, and transfer. Her podiatrist also certified Part B of the application. She attached her hospital records, discharge instructions, and records from her the orthopedic clinic. l. A consulting physician (Dr. W______) for the TSGLI office reviewed the applicant’s claim. He wrote that a 26 year old female Soldier who was injured in a workplace shooting (gunman in IHOP) suffered a gunshot wound to her left foot requiring surgical repair that same day. She recovered without complication and was discharged to out-patient status. This physician recommended disapproval of her claim, concluding that otherwise healthy patients are not rendered ADL incapable by a single limb trauma/dysfunction/immobilization. The submitted documents did not indicate the injury rendered the applicant incapable of performing any ADLs for 30 days or more per TSGLI guidelines. m. On 8 November 2012, the appeals panel denied the applicant’s claim. n. On 5 September 2013, the Board heard the applicant’s final administrative appeal. In addition to the previous medical records submitted, the applicant also offered a letter from her spouse and five pictures of her injury and the external fixation device. Her spouse stated: (1) She could not physically get in and out of the bath tub and could not stand in the shower to bathe. He had to lower her in and pull her out of the bath each morning. This lasted for over 3 months. (2) He assisted her with dressing. She could not stand with the injury to her foot. She had a lot of difficulty pulling clothes over the cast on her leg. With the gunshot wound to her left ear, her equilibrium was altered and she could not balance to dress herself. This lasted over a month. (3) He assisted her with ambulation, because she was shot in the left foot and was unable to walk. For the first 3 months he aided her in moving from a recliner to a wheelchair. They lived in a two-story house and she was unable to maneuver up the stairs for 4 months. He helped her get up and down the stairs. He also aided in moving her from her wheelchair to the toilet and back again on a daily basis for the first 3 months. o. On 9 September 2013, the Board denied the applicant’s final appeal. The Board's discussion and conclusions in this case stated: * Evidence shows the applicant was injured in a random shooting at a restaurant and she suffered a gunshot wound to her left foot that was surgically repaired the same day * She was hospitalized for only 2 days and her discharge note, dated 7 September 2011, indicates she was discharged, non-weight bearing on left foot, activities as tolerated. * 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 * The applicant claimed loss of three ADLs for 45 days. However, the submitted documentation does not indicate the injury rendered the applicant incapable of performing any ADLs for 30 days or more, per TSGLI guidelines * Otherwise healthy patients are not rendered ADL incapable by a single limb trauma/dysfunction/immobilization * Regrettably, based on the foregoing, there is an insufficient evidentiary basis for granting the requested relief p. The scope of the court’s review of the Board’s determination: The Administrative Procedures Act (APA) says a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. Under the APA, this Court shall: * compel agency action unlawfully withheld or unreasonably delayed * hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law * not consider the argument that the benefit of doubt applies because such was not raised before the administrative agency involved * agree with the applicant that this Board acted arbitrarily and capriciously in denying relief in contradiction to the physician’s certifications, discharge records, medical records, and the spouse’s letter * question why the Board provided no explanation regarding its acceptance of the conclusions from a physician who had not seen the applicant over two other physicians who had treated her * insure that the Board engaged in reasoned decision making, mindful that the standard of review is narrow and it shall not substitute its own judgment for that of the agency * find that the Board’s decision to deny the applicant’s appeal was arbitrary and capricious because the decision ran counter to the evidence presented * vacate the Board’s decision q. The court found that the United States was on notice that the Court may grant summary judgment for the applicant. Likewise, the Court found that the United States had a reasonable time to respond because it acknowledged the applicant’s request for sua sponte relief in its reply brief. The Court had granted the United States leave to file additional pages in the reply. The Court granted summary judgment to the applicant, sua sponte. 2. In the processing of this case, a comprehensive advisory opinion was obtained from the Chief, Army Personnel Records Division, U.S. Army Human Resources Command (HRC). It states the following: a. This opinion was written in response to the U.S. District Court decision, dated 29 March 2016 concerning the applicant’s TSGLI application and denial. b. The TSGLI certifying office's opinion supporting the denial of payment for the applicant’s TSGLI claim is appropriate in accordance with the TSGLI guidelines and the evidence in her medical record. c. The applicant claims she suffered a loss of ADLs for bathing, dressing, and transferring for greater than 30 days, but less than 60 days, from a gunshot wound of the left foot, which occurred on 6 September 2011. The TSGLI certifying office concedes the gunshot wound is a qualifying TSGLI traumatic event; but does not agree that she suffered 30 days or greater of ADL loss per the TSGLI guidelines. d. The following TSGLI standards are required knowledge to understand this case. According to the TSGLI Procedural Guide, Part 4 Evaluating Loss(es) Suffered, #7a (Determining if a member has a loss of ADL) on page 18, a member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADL’s. If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior, the patient is considered able to independently perform the activity. Requires assistance is defined as: physical assistance (when a patient requires hands-on assistance from another person) and stand-by assistance (when a patient requires someone to be within arm's reach because the patient's ability fluctuates and physical or verbal assistance may be needed). The patient is unable to bathe independently if he/she requires physical or stand-by assistance to bathe more than one part of the body (via tub bath or sponge bath) or get in or out of the tub or shower. The patient is unable to dress independently if he/she requires physical or stand-by assistance from another person to get and put on appropriate clothing (i.e. dress for the correct season), socks or shoes (may have help tying shoes). The patient is unable to transfer independently if he/she requires physical or stand-by assistance to move into or out of a bed or chair. e. The Carson Tahoe Regional Hospital Adult Admission Profile (presumed to be dated 6 September 2011) shows she was fully independent in all ADLs prior to the injury. f. The Social Work/Case Management Assessment dated 7 September 2011 (two days after the traumatic event) states she needed an assistive person for transferring, toileting, bathing, and dressing, and she needed assistive equipment for ambulation. It also records she was to go home with family assistance. However, it also documents a folding wheeled walker and crutches were ordered, and the folding wheeled walker was delivered to her room. The folding wheeled walker and crutches are the accommodating equipment described in the guidelines, which would allow her to transfer and ambulate independently in a modified manner. g. The physical therapy initial evaluation (presumed to be from 7 September 2011) states she needed supervision with bed mobility, sit-to-stand transfer, and gait. It records she was non-weight-bearing on her left lower extremity, but she was using a two-wheeled walker. It documents she had full range of motion (ROM) in all extremities, except her left ankle and foot, and had full strength (5/5) in all extremities, except her left ankle. A person with full ROM and full strength in all extremities, except one ankle, should be able to transfer and ambulate in a modified independent manner with a walker. Furthermore, a person described in such manner should be able to bend over to dress her lower extremities without assistance. h. The Reno Orthopedic Clinic initial office visit dated 8 September 2011 (three days after the traumatic event) states she had no other injury, except the left foot injury. It records she denies muscle weakness, dizziness, decreased hearing, or hearing loss. It notes she was non-weight-bearing and non-ambulatory. It documents she was wearing an external fixator and a splint on her left foot i. Orthopedic office notes from 15 September 2011 and 29 September 2011 (10 days and 24 days after the traumatic event respectively) state she was doing better as far as her pain goes and she was healing nicely. These notes show her condition was improving as would be expected. j. The orthopedic office note from 11 October 2011 (36 days after the traumatic event) states she was making some progress. It records her external fixator was removed, and she was placed in a walking boot. k. The orthopedic office note from 27 October 2011 (52 days after the traumatic event) states she was doing okay overall and could weight-bear as tolerated. l. The TSGLI application sent by the Army Review Board’s Agency (ARBA) and certified by Dr. G___ L______ is different than the TSGLI application certified by the same physician and found in the TSGLI certifying office's records. The TSGLI certifying office's application is signed by Dr. G___ L______ on 21 September 2011 and only lists the ADL loss of bathing. It also states she could not stand on her injured foot and she needed assistance to get in and out of the bath (tub). The ARBA presented application is signed by Dr. G___ L______ on 11 October 2012 and lists the ADL losses of bathing, dressing, and transferring. It states she had a gunshot wound to the left foot and left ear. The TSGLI certifying office maintains the 21 September 2011 application, certified during the time of ADL loss, is the more accurate assessment, rather than the 11 October 2012 application, which was certified over a year later and after a lawyer had been hired. Furthermore, the 11 October 2012 application lists a left ear injury, which is refuted by the medical record. The Carson Tahoe Regional Healthcare admission note states she suffered an injury to only her left foot and was negative for head trauma or injury. It notes there was no evidence of trauma to her ears, nose, or throat. The Reno Orthopaedic Clinic initial office visit dated 8 September 2011 (3 days after the traumatic event) states she denies any other injury (except the injury to her left foot) and denies any decreased hearing, hearing loss, and/or dizziness. m. The TSGLI applications sent by ARBA and certified by Dr. B_______ F ______ and Dr. G___ L______, respectively, list the applicant’s claims of ADL loss; however these claims are not fully supported by the medical record or the TSGLI guidelines. The applications state she could not weight bear for more than 6 weeks and indicate this non-weight-bearing status as the cause of her ADL loss of bathing, dressing, and transferring due to her inability to stand and/or walk. However, the doctors' assessments do not appear to account for her fully functional right lower extremity or the accommodating equipment criteria with the walker she was given. n. The spouse's statement was viewed as corroborating evidence for the applicant’s claim; however many of the statement's claimed are not supported by the medical record. He states she suffered gun-shot wounds to her left foot and left ear, and the left ear wound altered her equilibrium, where she could not balance to dress herself. However as noted above, the medical record refutes any ear injury and shows she had no dizziness as soon as 3 days after the traumatic event. Also, the spouse's statement contradicts itself. In the opening paragraph, he states her injuries prevented her ability to bathe and dress herself for about 60 days; but later states he assisted in getting her into and out of the bath for over 3 months and assistance for dressing lasted over a month. The statement also noted she had a lot of difficulty pulling clothes over the cast on her leg; however having difficulty performing a task and requiring assistance to perform a task are not the same. It states she could not stand for dressing, however a majority of the dressing task can be performed from a sitting and/or lying position with standing only being needed to raise pants/shorts/skirts the last few inches to the waist, which could be accomplished by balancing upon her fully functioning right leg. Concerning assistance in ambulation, he states he aided her in moving from a recliner to a wheelchair and from a wheelchair to the toilet for the first 3 months after the traumatic event; however, the medical record shows she could weight-bear as tolerated 52 days after the traumatic event. The medical record also does not mention the order or use of a wheelchair but does note the order of a wheeled walker and crutches. He further mentions she was unable to maneuver up the stairs for 4 months, however, transferring up and down stairs is not a part of the TSGLI standards as noted above. o. In conclusion, the TSGLI certifying office still supports the denial of the claims of ADL loss of 30 days or greater. It is important to remember a member must require assistance to perform at least two out of the six TSGLI ADLs, and a member can perform an activity independently if he/she can perform it by using adaptive behavior and/or accommodating equipment. The original TSGLI application, certified by her treating orthopedic physician on 21 September 2011 (during the time of the claimed ADL loss), only listed loss of the bathing ADL. This is a healthy 25 year old female Soldier able to perform all ADLs prior to the traumatic event, and after the traumatic event, she had full strength and full ROM in all extremities, except the left ankle and foot, according to the medical record. She was given a walker and crutches 2 days after the traumatic event, which would allow her to transfer, ambulate, and toilet in a modified independent manner. Additionally, the dressing standard is wearing season appropriate clothing; therefore a skirt, a dress, shorts, or loose­ fitting pants (such as sweat pants) could be worn and would cause her less difficulty with pulling clothes over her cast and external fixator. Concerning bathing, a shower chair would allow a person with three fully functioning extremities the ability to enter and exit a tub/shower independently and therefore bathe in a modified independent manner. However, there is no mention in the medical record or spouse statement that a shower chair was issued or used; therefore she most likely would have required assistance to get into and out of a traditional tub/shower combo without such accommodating equipment until she was able to bear weight on the left foot. Thus, the TSGLI certifying office could concede one ADL requiring assistance (bathing), but this does not meet the standard of at least two ADLs needed to receive payment. 3. On 8 June 2016, a copy of the advisory opinion was sent to the applicant for her information and opportunity to respond. No response was received within the time allowed. 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 May 11, 2005, established the TSGLI program. U.S. Army Combat-Related Special Compensation 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 $25,000.00 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. Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1.00 taken out each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package. In addition, there is a retroactive program, in which Soldiers who incurred a qualifying traumatic injury from 7 October 2001 through 30 November 2005, while supporting Operation Iraqi Freedom and Operation Enduring Freedom or under orders in a Combat Zone Tax Exclusion area are covered regardless of whether they elected SGLI coverage or not. Soldiers who elect SGLI coverage and incur a qualifying traumatic injury after 1 December 2005 (with the exception of some specific circumstances under which a traumatic injury will not be covered), regardless of their component (Active, Reserve, or National Guard) or the location in which they incurred the injury will be covered by TSGLI. 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 metacarpophalandeal joints; f. quadriplegia, paraplegia or hemiplegia; g. 3rd degree or worse burns covering 30% of body or 30% of the face; h. coma or TBI; or 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 TBIs). 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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria and administrative instructions regarding an applicant’s request for the correction of a military record. The jurisdiction of the ABCMR under Title 10, U.S. Code, section 1552, extends to any military record of the Department of the Army. The Board cannot make policy or act contrary to established law. DISCUSSION: 1. The applicant contends that her military records should be corrected by showing she qualified for TSGLI benefits. 2. The available evidence clearly shows the applicant suffered a gunshot wound to her foot under circumstances that are qualifying for consideration of benefits under the TSGLI program. Accordingly, she applied for those benefits. After several appeals and a final denial by the Army, she sued the United States. 3. The court concluded that the Board’s determination to deny the applicant’s request for TSGLI benefits was arbitrary and capricious because it ran counter to the evidence. The Board failed to provide an explanation for why it adopted the conclusions from a physician who had not seen the applicant over the opinions of two other physicians who had treated the applicant. 4. A review of the previous Board action shows the absence of a complete and detailed explanation in support of the Board’s decision. In this case, a comprehensive advisory opinion was obtained from the subject matter experts for the TSGLI program. a. TSGLI standards are required knowledge to understand this case. A member is considered to have 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, or by adapting their behavior, the patient is considered able to independently perform the activity. b. "Requires assistance" is defined as: physical assistance (when a patient requires hands-on assistance from another person) and stand-by assistance (when a patient requires someone to be within arm's reach because the patient's ability fluctuates and physical or verbal assistance may be needed). c. The patient is unable to bathe independently if he/she requires physical or stand-by assistance to bathe more than one part of the body (via tub bath or sponge bath) or get in or out of the tub or shower. d. The patient is unable to dress independently if he/she requires physical or stand-by assistance from another person to get and put on appropriate clothing (i.e. dress for the correct season), socks or shoes (may have help tying shoes). The patient is unable to transfer independently if he/she requires physical or stand-by assistance to move into or out of a bed or chair. 5. A comparison of documentation submitted to this Board and on file in the TSGLI certifying office revealed significant discrepancies. In September 2011, the applicant’s physician listed only the ADL loss of bathing. This same physician, in October 2012, listed the ADL loss of bathing, dressing, and transferring. He also indicated that she had a gunshot wound to the left foot and left ear. The TSGLI certifying office maintains the 21 September 2011 application, which was certified during the time period of the ADL loss, is the more accurate assessment, rather than the 11 October 2012 application, which was certified over a year later and after a lawyer had been hired. Furthermore, the 11 October 2012 application lists a left ear injury, which is refuted by the medical record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006779 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006779 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2