BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20160013526 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ ___x__ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20160013526 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he met the criteria for TSGLI benefits for the period 12 December 2011 through 5 March 2012. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief in excess of that described above. __________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: 5 January 2017 DOCKET NUMBER: AR20160013526 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. The case comes before the Army Board for Correction of Military Records (ABCMR) through a remand from the U.S. District Court Western District of Kentucky Louisville Division. The U.S. District Court vacated the ABCMR's decision, dated 26 August 2014, and directed the ABCMR to render a decision consistent with the U.S. District Court's opinion, dated 9 May 2016. 2. Counsel for the applicant filed suit against the United States on 23 May 2015 based on denial of the applicant's claim for payment of Traumatic Servicemember's Group Life Insurance (TSGLI) benefits for the period 12 December 2011 to 19 April 2012. Counsel requested a summary judgment from the U.S. District Court. 3. The U.S. District Court, in summary: a.  granted the applicant a summary judgment sua sponte (on its own motion) in part; b.  vacated the ABCMR decision, dated 26 August 2014; c.  found it reasonable for the ABCMR to deny TSGLI benefits for the period after 17 February 2012; and d.  opined the ABCMR acted arbitrarily and capriciously in denying the applicant's claim for TSGLI benefits for at least 30 days. Further, the documents submitted in the applicant's case contradict the ABCMR's conclusion that there is insufficient medical documentation indicating a physical incapacity of performing activities of daily living (ADL) without assistance for 30 consecutive days. (1)  The applicant's treating physician who certified his ADL for the relevant period concurred with the remand. (2)  In addition to the medical certification from his treating physician, the applicant submitted a letter from his wife, dated 30 April 2012, wherein she stated he could not bathe or dress without her assistance. The ABCMR made no reference to this letter or the additional letter from his wife in May 2013, even though both letters provided significant support of his claim. (3)  Medical records corroborate Dr. C____'s assessment of the applicant's incapacity for performing at least two ADL without assistance for at least 60 consecutive days. Additionally, the applicant's records reflected that all active movements were limited by over 75 percent. 4. The U.S. District Court provided a Memorandum Opinion and Order. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 22 November 1995 in the rank/grade of private/E-1. 2. His records show he fell face first from a height of approximately 6 feet on 12 December 2011 while participating in an obstacle course. He was transported by ambulance to the Carl R. Darnall Army Medical Center where he experienced whole body paralysis for an unknown period. a.  He complained of neck pain; intermittent numbness and tingling in both upper extremities to the fingers, as well as weakness of the arms; and burning/cramping pain over the anterior shoulder and chest area, to include light touch. b.  He underwent a brain computerized tomography (CT) scan which revealed a normal non-contrast head CT scan. He also underwent magnetic resonance imaging (MRI) which showed a closed fracture of a cervical vertebra with spinal cord injury. c.  On 12 December 2011, he was transferred to Scott and White Memorial Hospital for further evaluation and treatment. d.  On 14 December 2011, he was released from Scott and White Memorial Hospital and transported to the Carl R. Darnall Army Medical Center where he was discharged for further out-patient care. 3. His Physical Therapy and Initial Examination from Integrity Rehabilitation and Home Health on 16 January 2012 shows: * Current Level of Function – * he had several limitations in basic functional mobility, such as bathing, dressing, and grooming * all of his ADL were limited and he was not performing his job duties at the time * Functional Limitations – self-care, ADL, reaching/pushing/pulling, lifting/carrying, sitting/standing, bending, and squatting * he was directed to wear a rigid cervical brace for 6 weeks 4. His Daily Note/Billing Sheet from Integrity Rehabilitation and Home Health, dated 6 February 2012, shows, in part: * Current Complaint/Gains – * cervical fractures at C3 and C7 * torn muscles and ligaments in the cervical region * Functional Deficit/Gains – the applicant stated his doctor removed his rigid cervical collar, but he was not to perform active range of motion (ROM) in the cervical spine until his next 6-week checkup – overall shoulder motion was okay now 5. His Physical Therapy Progress Note from Integrity Rehabilitation and Home Health, dated 22 February 2012, shows he had several limitations in basic functional mobility, such as bathing, dressing, and grooming. All of his ADL were limited and he was not performing his job duties at the time. 6. His Daily Note/Billing Sheet and Physical Therapy Progress Note from Integrity Rehabilitation and Home Health, both dated 26 March 2012, show, in part: a.  Functional Deficit/Gains – although he was under restrictions preventing him from moving his cervical spine proper, he had been able to make gains in his overall shoulder strength while healing in the cervical spine proper. b.  Assessment – He was under very limited restrictions for no cervical active ROM for the first 6 weeks following his injury. c.  Current Level of Function – he had several limitations in basic functional mobility, such as bathing, dressing, and grooming. All of his ADL were limited and he was not performing his job duties at the time. 7. A Standard Form 600 (Chronological Record of Medical Care), dated 28 March 2012, shows he was released with work/duty limitations and he was issued a restrictive physical profile. 8. His original SGLV Form 8600 (Application for TSGLI Benefits) based on loss of ADL submitted on or about 17 May 2012 is not available for review. On 31 May 2012, his claim for TSGLI was denied. 9. On 25 April 2013, his counsel at the time submitted a revised SGLV Form 8600 that shows: a.  The applicant was unable to bathe independently during the period 12 December 2011 through 19 April 2012 and he needed physical assistance (hands-on) and standby assistance (within arm's reach) to bathe his lower body, dry, and dress. b.  The applicant was unable to dress independently during the period 12 December 2011 through 19 April 2011 and he needed physical assistance and standby assistance to dress his lower body and tie his shoes. c.  Part B (Medical Professional's Statement) shows a doctor of osteopathic medicine stated he had not observed the applicant's loss, but he had reviewed his medical records and he determined the applicant was capable of handling his own affairs based on that review. 10. A letter from the applicant's spouse, dated 30 April 2012, which was not provided with his application to the ABCMR, but was later obtained from the Chief, Special Compensation Branch, U.S. Army Human Resources Command, shows she advised the TSGLI Appeals Board that he required "24 hours" of both physical and standby assistance from her. Her letter does not provide an ending date for her care for him. She further stated: a.  He was unable to clean his entire body without her assistance due to his inability to raise his arms. She had to bathe him and perform his basic cleansing routines, i.e., applying lotion, shampooing hair, etc. She had to transport him in and out of the tub and shower and there were times he was unable to get into the tub due to the traumatic injuries. b.  She had to put on his clothes, shoes, shocks, and tie his shoes because he was unable to put them on himself. He was unable to walk downstairs to eat, so she had to transport his food to him. He could not drink on his own but needed assistance from her to hold his glass so he could drink from a straw. He was incapable of drinking by himself. c.  She had to assist him when he had to urinate or had a bowel movement. He was unable to take off his clothing without her assistance and he was unable to get out of bed without assistance, so she had to take off his clothes and use a urinal cup. For bowel movements, he would inform her ahead of time and she would assist him out of the bed and assist him in the bathroom. He was unable to move into or out of bed or a chair without her assistance. d.  The amount of assistance he needed was not pleasant and left both of them feeling stressed. 11. The U.S. District Court cites a letter from the applicant's wife, dated May 2013, wherein she provided significant support to his claim, including the duration of assistance he required. This letter was not included with his application to the ABCMR. Additionally, coordination with the Chief, Special Compensation Branch, U.S. Army Human Resources Command, and court officials indicate a copy of this letter is not in their respective files. 12. On 8 August 2013, the Chief, Special Compensation Branch, U.S. Army Human Resources Command, denied his appeal and stated the documentation provided did not indicate he met the TSGLI standards for loss of ADL. The medical documentation submitted did not indicate his injuries rendered him incapable of performing the ADL of bathing or dressing covered by TSGLI standards for 30 consecutive days or greater. 13. On 4 October 2013, his counsel at the time submitted an appeal of his TSGLI claim. Counsel referenced, in part, medical records regarding the applicant's need of ADL assistance from Integrity Rehabilitation and Home Health during the period 16 January 2011 (should read 2012) through 26 March 2012. 14. On 23 December 2013, the U.S. Army Human Resources Command Special Compensation Branch (TSGLI) denied the applicant's claim. Counsel was advised that after reviewing the claim and supporting documentation, that office was unable to overturn the previous adjudication. The medical documentation submitted did not indicate the applicant met the TSGLI standard for loss of ADL or that his back injury rendered him incapable of performing the ADL of bathing or dressing that were covered by the TSGLI standard for 30 consecutive days or greater. Previous TSGLI reviews revealed: * an operation report, dated 28 December 2011, 16 days after his traumatic event, documented sensory decrease of 50 percent in his right hand and 20 percent in his left hand, and trace weakness in right hand only, with strength improving * an operation report, dated 19 April 2012, 4 months after his traumatic event, documented healed vertebrae, radiographic evidence of a cord scar, odd sensations with neck flexion, and weakness of upper back muscles – additional physical therapy was recommended * submitted documents did not indicate the injury rendered him incapable of performing any ADL at day 16 after his traumatic event, let alone for 30 or 120 days, per TSGLI guidelines * 8 days after his injury, an orthopedic outpatient note stated he was "able to stand and ambulate and his strength was good with the exception; an outpatient physical therapy note 1 month later stated "limitations" of ADL without further explanation or characterization * insufficient data was presented supporting the claimed loss and data that was presented seemed to suggest at worst modified independence in ADL 15. On 9 June 2014, counseled appealed the TSGLI denial decision to the ABCMR. 16. On 26 August 2014, the ABCMR denied the request and stated, in part: Although his records contained documentation dated over a month after the event indicating he did have several limitations in basic functional mobility[,] such as bathing and dressing[,] with all ADLs [sic] limited[,] the extent of the ADL limitations was not addressed. None of the submitted documents indicated the injury rendered him incapable of performing any ADLs [sic]. 17. On 23 May 2015, counsel filed suit against the United States and requested a summary judgment. 18. On 31 May 2016, the applicant retired for sufficient length of service. He completed 20 years, 6 months, and 9 days of creditable active military service. REFERENCES: 1. Public Law 109-13 (The Emergency Supplemental Appropriations Act, for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on 11 May 2005, established the TSGLI Program. U.S. Army Human Resources Command Special Compensation Branch was 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. Servicemember's Group Life Insurance (SGLI) 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 deducted each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI – it is a package. 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.  third-degree or worse burns covering 30 percent of body or 30 percent of the face; h.  coma or traumatic brain injury; or i.  other traumatic injuries resulting in the inability to carry out two of the six ADL, which 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 (15 days or more in the case of traumatic brain injuries). ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 3. A traumatic event is defined as the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body. 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. The event must involve a physical impact upon an individual. Some examples would include an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head. It would not include an injury that is induced by the stress or strain of the normal work effort that is employed by an individual, such as straining one's back from lifting a ladder. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The evidence of record shows the applicant sustained a neck injury on 12 December 2011 while participating in an obstacle course. He underwent both a CT scan and MRI and he was ultimately diagnosed with cervical fractures at C3 and C7; in addition, he had torn muscles and ligaments in the cervical region. 2. On or about 12 December 2011, he was directed to wear a rigid cervical collar for 6 weeks, making its removal date 23 January 2012. 3. His Daily Note/Billing Sheet from Integrity Rehabilitation and Home Health, dated 6 February 2012, shows his rigid cervical collar brace was removed; however, he was directed to avoid active ROM of the cervical spine for 6 weeks. His 6-week limitation of active ROM of the cervical spine would have ended on 5 March 2012 had his rigid cervical collar brace been removed on 23 January 2012. 4. Records from Integrity Rehabilitation and Home Health, dated 16 January 2012 through 22 February 2012, show he had several limitations in basic functional mobility, such as bathing, dressing, and grooming. All of his ADL were limited and he was not performing his job duties at the time. Additionally, his wife submitted a letter, dated 30 April 2012, affirming his claim of loss; however, she did not provide an ending date for her care for him. 5. Although the U.S. District Court references a letter from the applicant's spouse, dated May 2013, this letter was not available for review during the adjudication processes by both the TSGLI office and ABCMR. 6. He applied for TSGLI benefits on three occasions and his appeals were denied based on insufficient data supporting his claimed loss. Further, the ABCMR denied his appeal for TSGLI benefits on 26 August 2014. 7. On 9 May 2016, the U.S. District Court found the ABCMR acted arbitrarily and capriciously in denying the applicant's claim for TSGLI benefits for at least 30 days and found it was reasonable for the ABCMR to deny TSGLI benefits for the period after 17 February 2012. 8. The evidence of record shows the applicant did in fact have several limitations in basic functional mobility, such as bathing, dressing, and grooming from the onset of his injury on 12 December 2011 through the 6 weeks following the injury and for an additional 6 weeks after removal of his rigid cervical brace due to restriction of active ROM of the cervical spine. Based upon these facts, it is reasonable to conclude the applicant had the necessary limitations until 5 March 2012. He had ADL limitations from 12 December 2011 through 5 March 2012 and these limitations would have rendered him eligible for TSGLI benefits for the period 12 December 2011 through 5 March 2012. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013526 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013526 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2