IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20160008526 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: 26 July 2016 DOCKET NUMBER: AR20160008526 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: 26 July 2016 DOCKET NUMBER: AR20160008526 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 requests and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect: a. Reversal of the decision to deny the applicant's Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim for payment of $100,000 based on having total-body surface area (TBSA) burns on more than 20 percent of his body and face. b. The applicant requests a personal appearance before the Board. 2. Counsel states, in effect: * the TSGLI office denied the applicant's claim and subsequent appeals for TBSA burns on 20 percent of the body and face * this denial was unjustified in light of statements, medical records and reports, as well as photographs that show the applicant suffered burns over more than 20 percent of his body and face * a single inconsistency in records does not change the greater amount of evidence supporting a TBSA being more than 20 percent 3. Counsel provides a Compact Disc, which includes: * Exhibit A (photographs, previous claims, evidence, appeals, and denial letters); within the Exhibit A tab is a folder marked Exhibit E - 2015.04.29 - Medical Records, however this folder is empty * Exhibit B (applicable law (Title 38 Code of Federal Regulation, section 9.20) procedural guide, and case law * Exhibit C, statement from the applicant's spouse CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the U.S. Army Reserve (USAR), the applicant was appointed as a USAR commissioned officer. He executed his oath of office on 9 January 2003. He has served continuously as a member of a Troop Program Unit. He currently holds the rank/grade of major (MAJ)/O-4. 2. On 27 April 2013, he suffered burns to both hands, both forearms, both lower legs, and his lower lip due to the explosion of a gasoline can at a campfire near New Smyrna Beach, FL. He was evaluated at an emergency room (ER) and following a 3-hour stay, he was released. He received follow-up care from his primary care physician and a burn specialist. 3. On 19 July 2013, he submitted a TSGLI application. He claimed: a. On 27 April 2013, he sustained 2nd and 3rd degree burns on his face, both arms, hands, forearms, upper arms, and both legs (including toes, mid-foot, heel, ankle, anterior/posterior calf, shin, and knees). (1st degree burns consist of red, non-blistered skin, and the skin may peel off in a day or two. 2nd degree burns affect the outer and middle layer of the skin, and show blisters as well as some skin thickening. All layers of the skin are damaged in 3rd degree burns. It is marked by widespread thickness of the skin, and having a white, leathery, and sometimes charred appearance). (1) He had been carrying a 6-gallon gasoline can when the fumes ignited, causing the gasoline can to explode. He incurred significant burns over most of his body. (2) He was transported to the ER for treatment, and released 3 hours later. Both his primary care physician and the burn-care doctor later said he should have been admitted to the hospital. (3) Home health care was offered, but his wife is a registered nurse; therefore, the offer was declined. His wife took 2 weeks of unpaid leave to care for him. b. He asserted he was unable to independently perform Activities of Daily Living (ADL) for a period of 16 days because of severe swelling and pain in his limbs, caused by traumatic burn injuries. He claimed "other traumatic injury (OTI)," and that he was unable to perform the following ADLs: * he was unable to bathe independently from 27 April to 12 May 2013; he required a two-person assist to transfer to the bathroom and then assistance entering the tub; one person assisted with bathing * he was unable to dress independently from 27 April to 12 May 2013; he required one-person assistance with taking off and putting on clothing on a daily basis; he was not able to wear shoes during this period * he was unable to toilet independently from 27 April to 12 May 2013; he required assistance with removing clothing for toileting, putting clothing back on after toileting, and transferring to and from the toilet for bowel movements * he was unable to transfer independently from 27 April to 12 May 2013; he required two-person assistance getting in and out the bed and chair; and he required a wheelchair with elevated limb for transportation, but was unable to wheel himself * a medical professional in primary care stated, according to the Lund and Browder chart, the applicant had 2nd and 3rd degree burns over 25 percent of his body, and 2nd degree burns on 25 percent of his face 4. In a letter, dated 1 August 2013, the U.S. Army Human Resources Command (HRC) requested the applicant provide additional supporting medical documentation, to include initial treatment records, follow-up physician reports, and a burn chart. The applicant responded on 5 November 2013 with the requested medical documents. 5. On 7 February 2014, by letter, an official at the Prudential Office of TSGLI informed him the Army completed evaluating his TSGLI claim, but could not approve payment of his claim for burns because his loss did not meet the TSGLI standard. a. Under TSGLI, burns are defined as 2nd degree burns to at least 20 percent of the face or 20 percent of the body. b. The evidence indicated he had 1st and 2nd degree burns to between 11 and 12 percent of his TBSA, based on this, his claim could not be approved. c. Regarding the loss of ADLs because of other traumatic injury, there was not enough medical information to verify he was unable to independently perform at least two of the six ADLs. (1) To be eligible, his medical providers needed to present information that addressed the specific injuries sustained, and illustrate a timeline of treatment up to the first 120 days of recovery. (2) The timeline would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, and registered nurses. Documentation could also be submitted by occupational/physical therapists, optometrists, and audiologists. 6. He submitted (through counsel) a Standard Form 180 (Request Pertaining to Military Records). On 16 July 2014, an official at the U.S. Army Human Resources Command (HRC) responded and provided his counsel copies of the initial application, incomplete letter, additional documentation (parts 1 and 2), and the initial application decision letter. The HRC official also explained the procedure for a request for reconsideration. 7. On 21 August 2014, the applicant submitted a request for reconsideration through counsel. a. Counsel essentially stated: * the applicant suffered burns due to an accident while camping; the original claim asked for TSGLI benefits due to 2nd degree or worse burns to the body, including the face and head * the denial letter noted the evidence indicated 1st and 2nd degree burns of 11 and 12 percent of the applicant's TBSA; this request for reconsideration focuses on this portion of the claim b. Counsel continued, in effect: * under TSGLI policy, when a member suffers burns, the member is eligible for a TSGLI benefit for burns if 2nd degree burns or worse are suffered over 20 percent of the body, including the face and head; the percentage may be measured using the Rule of Nines or any other acceptable alternative * the medical professional on the original application certified the applicant suffered 2nd degree burns or worse and that the burns affected 25 percent of his body and face; the ER reports, however, show only 11 to 12 percent * both calculations were made using a Lund and Browder Chart; the point of disagreement involves which analysis is more accurate * the ER report reflects burns in six places, but the diagram does not fully delineate the totals; the following percentages were shown: * 1.50 - right tricep * 0.75 - right wrist/hand * 0.75 - left tricep * 0.75 - left wrist/hand * 3.00 - right shin area * 3.00 - left shin area * small blister on the lower lip c. Counsel further stated: * after a short time period, the applicant was released to his wife, who is an ER nurse; his record indicates the pain and problems he experienced later show this was a bad idea * the ER report is a small portion of what is listed on the two page checklist from HRC; the applicant's primary care physician (also the medical professional listed on the application) found the applicant's burns were more extensive and identified a total of 25.50 percent of his body and face as being burned * the diagram provided by his primary care physician is cleaner, a full page, with detailed notes; unlike the ER report, it has a breakdown of the burned areas on the right side, and shows burned areas not listed on the ER report (head - 3.50 percent; right bicep - 2.00 percent; right foot - 1.75 percent; and left foot - 1.75 percent) * these additional areas come to 9.00 percent alone; when added to what was shown in the ER report, the totals become between 20 percent and 21 percent TBSA * counsel contends the primary care physician would not have added areas to the chart; a more likely scenario would be that the ER physician missed areas that were burned * medical reports indicate the applicant sustained 1st, 2nd, and 3rd degree burns; his primary care physician confirmed he had a qualifying 20 percent or more 2nd degree burns, or worse * the ER physician did not specify the degree of the burns, the doctor simply noted them as moderate, and circled the term "major burn" * circling "major burn" indicates these were in fact serious 2nd and 3rd degree burns, rather than 1st degree burns * based on the foregoing, counsel requested the applicant be awarded $75,000 (later revised by counsel to $100,000) 8. On 9 March 2015, by letter, an HRC official notified the applicant that the Army TSGLI program office reconsidered the decision of the previous claim, but could not overturn the previous adjudication. The documentation provided for his event, which took place in Florida on 27 April 2013, did not indicate he met the TSGLI standards for burns, as spelled out in the TSGLI Guidelines. a. That documentation did not reflect his burns were 2nd degree or worse, and that the burns were over 20 percent of his body, including his face. b. There was an undated Lund and Browder burn chart that showed 25.5 percent of his body was affected. The chart, however, shows the possible TBSA of each of the body parts involved, not how much of each area was affected. For example, according to the rule of 9's (a way of assessing percentage of burns on the body by using multiples of 9), the face accounts for a total of 3.5 percent TBSA. (1) The undated chart indicates 3.5 percent TBSA of the face had 2nd degree burns. Medical records refute this; specifically, a document dated 1 May 2013 states his face had 1st degree burns and minimal blistering. (2) Medical records also indicate the percentage of burns and their location. These records show the majority of the burns were 1st and 2nd degree burns with a small section of 3rd degree burns on the ankle. There is no indication of 20 percent TBSA at 2nd degree or worse. 9. On 29 April 2015, counsel submitted an appeal of the denied request for reconsideration. As part of the appeal, counsel provided an updated TSGLI application and a Lund and Browder burn chart showing only 2nd degree burns over 23 percent of the body (prepared by an independent nurse). Additionally, he included a statement from the applicant’s medical records and a statement from the independent registered nurse. 10. On 31 March 2016, The Adjutant General notified the applicant's counsel that the Army TSGLI program office received his appeal request for [Applicant]. After reviewing the claim and supporting documentation, that office was unable to overturn the previous adjudication concerning losses claimed with the associated burns from the traumatic injury sustained on 27 April 2013 near New Smyrna Beach, FL. a. According to program guidance, a member must suffer 2nd degree or worse burns over 20 percent or greater of the body to qualify for payment. (1) The ER note, dated 27 April 2013, shows the applicant's burns involved approximately 11 to 12 percent TBSA. (2) He was released from the ER to go home after 3 hours, indicating his burns were not severe enough to warrant admission to the hospital. (3) The note, dated 8 May 2013, stated the burns on his face, both arms, and right leg were completely healed without complications within 12 days of the traumatic event. This suggests the burns in those areas were of a lesser severity. b. Based on the foregoing, the body surface area or severity of the burns were determined not to meet the criteria required to qualify for payment of benefits. 11. The applicant's counsel provides a CD, which includes Exhibit A (photographs, previous claims, evidence, appeals, and denial letters) and Exhibit B (applicable law, procedural guidance, and case law). He also included a statement from the applicant's spouse (Exhibit C). a. A review of the medical records associated with his claims revealed: (1) Acute Care note, dated 1 May 2013, which was completed by the applicant's primary care provider (also the physician who completed the medical professional portion of the TSGLI application), shows an entry in the physical examination regarding skin: * face with 1st degree burn, minimal blistering * distal (situated away from the center of the body) upper extremities with 1st and 2nd degree burns over ventral (underside/abdominal area) and dorsal (upper side/back) aspects * bilateral anterior thighs with 1st and 2nd degree burns to the knee * bilateral anterior lower extremities and feet with more significant 2nd degree burns, large areas of blistering, and a smaller area of 3rd degree burn in the central aspect of the left anterior leg (2) Wound Care Note, dated 8 May 2013, which was completed by Dr. SB, states: * DERM (Skin): * evidence of significant distribution of burns to face, arms, hands, and lower extremities * these appear to be 1st and 2nd degree burns, and majority of areas have epithelialized (final stage of healing) * left lower extremity from the knee down to the ankle remains open * Impression and Plan: * significant 1st and 2nd degree burns to the upper and lower extremities as well as the face * the majority has now healed; there are open wounds to the left lower extremity but it is healing well and wounds do not require debridement (cleaning away dead tissue) b. The applicant's spouse essentially gave her perspective of what occurred and her efforts to assist in her husband's care. With regard to her description of his injuries, she stated, in effect: * after he returned home, he went upstairs and could not come back down; he could not move, could not transfer himself, could not walk, and was in a lot of pain * she was in North Carolina at the time of the accident; when she arrived home, the first thing she noticed was his swollen face, and that he had blistering on his lower lip as well as his ears * there were spots that never turned into blisters on his forehead, cheek, the tip of his lip, nose, and ears * he had what looked like "tiger-stripes" on his face; these "tiger-stripes" eventually got darker, then flaked off * his hands were bad; there is a picture that shows a blister that had not yet popped underneath the thumb on the palm, and the burned area extended from the palm to the pinky finger tip * there was a fleshy open wound on the right anterior forearm; both of his arms had 2nd degree burns * he had skin missing on both his left and right legs; the right leg had an anterior (front) to posterior (rear) 2nd degree burn, while the left leg had 2nd degree burns down front and all around the back, to include the foot * in her view, the initial charting done in the ER was wrong, requiring her and the applicant to correct it; their calculation of the burned areas is based on the facts REFERENCES: 1. Public Law 109-13, signed by the President on May 11, 2005, established the TSGLI program. The TSGLI program was enacted 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 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. 2. Under 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. Losses under TSGLI are reflected in two parts. Part I shows the payments for specific types of traumatic injuries. Part II lists payments for the loss of ADLs and for hospitalizations due to traumatic injury. a. Under Part I, covered traumatic injuries 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 * second (2nd) degree (partial thickness) or worse burns covering 20% of the body (including the face) or 20% of the face only * Coma or TBI b. The payment amount for qualifying burns under Part I is $100,000. 3. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. Counsel's request for a personal appearance hearing was carefully considered. By regulation, an applicant (and/or counsel) is not entitled to a hearing before the ABCMR. A panel of the ABCMR or the Director of the ABCMR may authorize a hearing, however, in this case, the evidence of record as well as the independent evidence provided by the applicant and/or counsel is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant is not eligible for payment for claimed losses because the burns he sustained do not meet the TSGLI criteria. a. TSGLI guidelines state a member must suffer 2nd degree or worse burns over 20 percent or more of the body to qualify for payment. (1) The ER note dated 27 April 2013 stated he suffered burns over approximately 11 to 12 percent of the TBSA. (2) While the applicant and counsel submitted two Lund and Browder burn charts, and both indicate more than 20 percent TBSA, they are not consistent in that one has calculated 25.5 percent and the other shows 23 percent. b. The fact he was released from the ER after only 3 hours strongly suggests the burns he sustained were not severe. Additionally, the note by his primary care physician, dated 1 May 2013, indicates the majority of the burns are 1st and 2nd degree, with one area that was a 3rd degree burn. The note, dated 8 May 2013, apparently completed by a physician who specialized in wounds, stated the majority of the burns on his face, both arms, and right leg had healed without complications within 12 days of the traumatic event. Both notes add to the evidence that his burns were of a lesser severity. 3. Based on the foregoing, there does not appear to be sufficient evidence to support granting the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008526 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008526 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2