IN THE CASE OF: BOARD DATE: 28 July 2021 DOCKET NUMBER: AR20200003121 COUNSEL REQUESTS: * approval of the applicant's claim for Traumatic Servicemembers’ Group Life Insurance (TSGLI) based on a traumatic injury resulting in losses of activities of daily living (ADL) for a period of 30 days * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * TSGLI application * 8 pages of medical records * independent nurse review, dated 15 February 2018 * U.S. Army Human Resources Command (HRC) TSGLI denial letters * Several U.S. District Court(s) "Memorandum of Opinion" pertaining to TSGLI decisions * excerpt of 38 Code of Federal Regulations, section 9.20 (Traumatic Injury Protection) * TSGLI Procedural Guide FACTS: 1. Counsel states: a. He and the applicant disagree with the decision to deny TSGLI benefits for 30 days of ADL losses caused by a traumatic injury. An error and an injustice have resulted in the denials to date. In review of the complete file and the reasons below, a correction to the applicant's military record is proper and requested to allow $25,000.00 under the TSGLI Schedule of Losses #20 for traumatic injury resulting in inability to perform at least 2 ADLs at 30th consecutive day. In this matter, rather than providing a fair weighing of all evidence of record, the recent decision selectively chooses medical records and misses, disregards or minimizes favorable medical records, medical opinions, and statements. The U.S. Army Adjutant General (TAG) completely missed or disregarded the following note at discharge from inpatient treatment on 10 February 2016 - "ADL Functional Status: 1. Pt [patient] unable to bear full weight on affected lower limb due to pain 2. Pt unable to walk unassisted due to pain 3. Patient unable to stand unassisted due to pain; Pain: Severity at Worst: 9/10." Also missed is a note from case manager, register nurse, who followed the applicant from the initial hospitalization, and she provided on 10 August 2016: "ADLs Requiring Assistance: SM [service member] needed help with all ADLs immediately following Injury for 6-8 weeks… ambulation, bathing, dressing, toileting, transferring." The failure to reference these records provides a biased and incomplete assessment against the applicant. b. Also, it should be noted that early records show an incomplete assessment of all the injuries sustained, and improper care. This is clear due to the missed shoulder injury, which is later shown to clearly have been an issue. The fact that the TAG questions whether the shoulder injury existed further demonstrates an unfair and biased review against the applicant. In terms of no note of neck pain on the day of the injury, the TAG also fails to consider that more pressing issues were presented for emergency treatment. And, as provided in previous appeals, the lack of medical records does not equate to a lack of a medical issue, and statements must be considered. Here, the applicant's statement was given minimal consideration. Also, the issuance of crutches cannot equate to ADL independence. The use of crutches may suggest some ADL independence, but in the present case, it is clear the applicant was non-weight bearing and three of four limbs were injured. And, per his statement and other evidence, he could only use a wheelchair after the injury. He also explains that he only left his bed for appointments within the first 30 days and his pain was very severe and debilitating. This contributed to the ADL losses, which required physical and standby assistance. Here, the TAG mostly focuses on physical assistance. 2. On 10 February 2016, the applicant, while serving on active duty in the Regular Army, was involved in a skiing accident. 3. The applicant, through counsel, submitted an application for TSGLI, dated 13 February 2018. The application shows: a. On 10 February 2016, the applicant was severely injured in a skiing accident during military training. He was transported to the hospital where he was diagnosed with a left tibial plateau Segond fracture, grade 3 left anterior cruciate ligament (ACL) tear with grade 2 medial collateral ligament (MCL) tear, right knee MCL with a medial meniscal ligament (MML) tear, cervical spine injury with spinal cord involvement and left shoulder injury (labral tear). Unable to walk or stand with limited use of his left arm, he was placed in a wheelchair and put on a flight home where his wife could care for him. During his recovery over the next 6 weeks, he could not bathe, toilet, dress, or transfer without physical and/or stand-by assistance. He could not bear weight on either leg due to severe pain and knee instability. Pain and weakness in his neck/left shoulder severely restricted his range of motion (ROM). Side effects from narcotic pain medication caused fatigue and sedation placing him at a high risk for falls. b. He suffered multiple serious injuries. Both knees were severely injured and unstable. He could not walk or stand unassisted. His left shoulder was weak and painful. He had restricted ROM and pain in his neck. Any type of bodily movement caused debilitating pain. He had generalized weakness and de-conditioning along with side effects of fatigue and sedation from narcotic pain medication. Without assistance, he would not have been able to perform these specified ADLs on his own for at least 6 weeks. 4. The TSGLI application was signed by a medical professional who indicated he/she had not treated the applicant but reviewed his medical records. 5. In a separated letter, the applicant's counsel stated the following: a. The applicant requests that TSGLI evaluate all evidence submitted herein to support his TSGLI claim for ADL losses. Servicemembers pay in to the SGLI/TSGLI insurance program each month with the expectation that if they are severely injured, there will be financial assistance to help them and their families. Unfortunately, the government is the insurance policy holder of the SGLI, which limits any lawsuit for bad faith. The absence of potential bad faith insurance actions, which is a check and balance system on wrongful denials, creates a greater responsibility of the TSGLI office to be self-policing, and there must be careful consideration to avoid wrongful denials and to fully consider the totality of all evidence. b. In terms of the injury, on 10 February 2016, the applicant was severely injured in a skiing accident during military training. Injuries include a left tibial plateau Segond fracture, grade 3 left ACL tear with grade 2 MCL tear, right knee MCL/MML tear, cervical spine injury with spinal cord involvement and left shoulder injury (Labral tear). Unable to stand or walk with limited use of his left arm, he was transported via wheelchair to the airport where he was flown to his home. His wife assisted him with basic ADLs for the next 6 weeks. He could not stand or walk due to severe pain and instability in both knees. He had cervical spine pain, restricted ROM, and left arm weakness. Any type of movement caused severe pain. Side effects from narcotic pain medication to include fatigue and sedation put him at a high risk for falls. He required physical and standby assistance at all times when going to/from the bathroom, getting in/out of the shower, and ambulating/transferring. His wife assisted with upper/lower body dressing. Without assistance, he would not have been able to perform these specified ADLs on his own. c. Here, the applicant required both physical and standby assistance with bathing, toileting, and transferring. He required physical assistance with dressing. Of the seven combinations of assistance provided, only two are required for the benefits to be issued. It must also be noted and recognized that the TSGLI Application and Procedures Guide have minimal requirements for the ADL tasks that require assistance: (1) He/she requires assistance from another person to bathe (including sponge bath) more than one part of the body or get in or out of the tub or shower. (2) He/she requires assistance from another person to get and put on clothing, socks, or shoes. (3) He/she must use a bedpan or urinal to toilet or he/she requires assistance from another person with any of the following: going to and from the toilet, getting on and off the toilet, cleaning self after toileting, getting clothing off and on. (4) He/she requires assistance from another person to move into or out of a bed or chair. d. The TSGLI office must work only within the guidelines of Title 38, Code of Federal Regulations, section 9.20. And, it should be noted that TSGLI program benefits are administered by the Secretary of the Veterans Administration, so 38 U.S. Code, section 5107(b) is fully applicable to TSGLI benefit determinations. As such, the standard applicable in this case is of "substantial evidence," meaning: "[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b); see also Koffarnus v. United States, 2016 WL 1261155, *6 n. 6 (W.D. Ky. Mar. 30. 2016). The referenced cases along with the applicable statutory law are attached. e. As explained in Yearwood v. United States, 2015 U.S. Dist. LEXIS 111538 (N.D.Ala. Aug. 24, 2015), this statutorily mandated benefit of the doubt "is of particular importance" in reviewing the denial of TSGLI program benefits. See Yearwood at *6. This is because the required benefit of the doubt alters the standard of proof that the claimant must meet, necessarily reducing it from "preponderance of the evidence" to a lesser "substantial evidence" standard: Because the claimant is entitled to the "benefit of the doubt" whenever the evidence is in equipoise, § 5107(e) clearly does not require the claimant to prove his claim by a preponderance of the evidence. Applying a preponderance of evidence burden to the claimant renders § 5107(b) meaningless. Requiring the claimant to prove his claim "to be more likely true than not true," contradicts the careful balance established in § 5107(b), under which all matters on which the evidence is in "approximate balance" goes to the claimant. The burden of proof established by § 5107 requires the claimant to make an initial presentation of his claim and support it with substantial evidence, something more than a mere scintilla but less than a preponderance. Once the claimant meets this substantial-evidence burden, he is entitled to the benefit of the doubt as to every matter on which the evidence is in "approximate balance." Yearwood at *26. f. The practical consequence is a shift in the burden from the Plaintiff to the TSGLI Office: “. . . once the claimant proves at least on ‘approximate balance’ in the evidence, the burden shifts to the Secretary to show by preponderance of the evidence [that coverage does not apply]. Ties go to the plaintiff.” Id. at *28. As the Yearwood court further explains: Westlaw’s treatise on Federal Procedure provides a helpful discussion on the review of the application of the “benefit of the doubt” doctrine: While there may be support in the record for the Board’s findings, there also may be evidence which supports a contrary conclusion; indeed, there may be two permissible views. If such evidence is in the record and the Board fails to include an adequate statement of reasons or basis for its findings or its conclusions, either implicit or explicit, that the veteran was not entitled to the benefit of the doubt, the Board’s determination as to the benefit of the doubt may well be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, ...Yearwood at **53-54, quoting 33 Feb. Proc. L. Ed. § 79:393 g. The attached exhibits, medical records, and other supporting evidence demonstrate the applicant is entitled to a recovery of $25,000.00 under the TSGLI Schedule of Losses #20; “Traumatic injury resulting in inability to perform at least 2 ADL at 30th consecutive day of ADL loss.” 6. In support of the applicant's request, a statement from an Independent Nurse Reviewer, dated 15 February 2018, was provided. It states: a. Review of the records confirm the applicant suffered multiple injuries after a fall during a military mountaineering ski training exercise. He was evacuated by ski patrol to a hospital. Injuries included a left tibial plateau Segond fracture, Grade 3 left ACL tear with Grade 2 MCL tear, and right knee MCL with an MML tear. He also suffered a herniated disc at C6-C7 with spinal cord compression causing weakness and atrophy in his left arm (bicep/tricep). He also had a labral tear of the left shoulder which went undiagnosed until June 2017. Discharged from the hospital, he was unable to stand, walk, or bear weight on either leg due to severe pain and bilateral knee instability. He was accompanied to the airport in a wheelchair by his master sergeant where he was flown to Florida to the care of his wife. b. Unable to Independently Perform ADLs: From 10 February 2016 to at least 22 March 2016 (6 weeks), he was unable to independently perform ADLs of bathing, dressing, toileting, and transferring. Multiple severe ligament tears in both knees with a left Sigond tibial plateau fracture impaired his ability to stand or walk without assistance. His cervical spine injury with spinal cord involvement and the left shoulder labral tear caused weakness and pain in his left arm which impaired his ability to reach overhead or lift. Any type of movement caused excruciating pain. Symptoms of generalized weakness, de-conditioning, and side effects of fatigue and sedation from narcotic pain medication (Vicodin) all impaired his ability to perform basic ADL tasks. c. The applicant required physical assistance and/or standby assistance when going to/from the bathroom to use the toilet. His wife assisted him in and out of the shower to bathe. He was unable to bend at the knees without severe pain to pull on undergarments or pants. He could not don shoes or socks without assistance. His wife helped him get to/from the chair to the bed or sofa and get/in out of the car. He could not go up or down stairs. Recent telephonic interviews with him and his wife corroborated the assistance required. d. At the time of hospital discharge on 10 February 2016, after being fitted for a left knee hinged brace, a physical therapist, noted, “ADL Functional Status: 1. Pt unable to bear full weight on affected lower limb due to pain 2. Pt unable to walk unassisted due to pain 3. Pt unable to stand unassisted due to pain; Pain: Severity at Worst: 9/10 . Current: 7/10. Severity at best: 7/10; Loss of Motion/Stiffness: Moderate degree; Loss of Function: Moderate Degree; Problems & Goals: LTG Achieve by March 09, 2016: ADL Improvements In: 1. Pt will be able to bear full weight pain free and unassisted. 2. Pt able to walk >20 minutes with crutches in order to better access community 3. Pt able to stand in place >20 minutes with crutches to better perform ADLs”. From the time of his injury, nurse case manager followed the applicant's course of treatment and progress. In her note dated 10 August 2016 she documented, “ADLs Requiring Assistance: SM needed help with all ADLs immediately following injury for 6 – 8 weeks…Ambulation. Bathing. Dressing. Toileting. Transferring”. All evidence which supports his inability to independently perform his ADLs for a period of at least 6 weeks. e. On 7 April 2016, a left knee arthroscopy was performed by an orthopedic surgeon. ACL reconstruction was deferred as “we felt his residual ligament would provide acceptable knee function.” He was to return in 2 weeks to discuss a potential right knee ACL reconstruction “due to gross instability on today’s exam under anesthesia.” On 11 May 2016, surgery was performed to include, “Right knee arthroscopic assisted anterior cruciate ligament reconstruction with autologous patella/tendon/bone. Right knee medical meniscal repair. Right knee lateral meniscal repair.” To this date, the applicant continues to experience chronic pain in both knees. He is currently being medically boarded due to his injuries. f. In regards to his cervical spine disc herniation with spinal cord injury, he failed conservative treatment to include physical therapy, cervical traction, chiropractic care, acupuncture, and TENS. Due to continued weakness and atrophy in his left arm (biceps, triceps, intrinsic and musculature), on 6 January 2017, a cervical spine MRI was performed which showed, “C5-C6 broad-based disk protrusion with moderate to severe left neuroforaminal stenosis and C6-C7 large left paracentral to foraminal disk protrusion flattening the cord and resulting in severe left neuroforaminal stenosis.” On 17 March 2017, a C6-C7 cervical fusion was performed. In June 2017, a left shoulder MRI was performed which showed an undiagnosed labrum tear. His shoulder was left to heal on its own. g. Due to the severity and multitude of injuries in both knees, cervical spine disc herniation with spinal cord involvement, and left shoulder injuries, it is her professional opinion that the applicant was unable to perform the specified basic ADLs without physical assistance and/or standby assistance for a period of at least 30 days following his skiing accident. 7. On 6 June 2018, the HRC, Special Compensation Branch (TSGLI), denied the applicant's TSGLI claim. The denial letter provided the following explanation for the denial: a. Other than Traumatic Brain Injury(OTI)-ADL Loss: Your claim for the inability to perform ADLs due to OTI was not approved because the medical documentation provided with your claim did not contain enough information to support that you could not perform ADLs independently. Documentation provided, dated 10 August 2016, states you had previously required ADL assistance for six to eight weeks following your injury; however, no documentation was provided from the weeks immediately following your injury which support this statement. b. Under the laws and regulations governing the TSGLI Program, 38 U.S.C. 1980A(b)(1)(H), (b)(2)(O), and 38 CFR 9.20(d), (e)(6)(vi), (f)(17) and (f)(20)), documentation must demonstrate your inability to independently perform at least two of the six ADLs (Eating, Bathing, Dressing, Toileting, Transferring, and Continence). To approve your claim, we need documentation addressing the specific injury/injuries you sustained as a result of the traumatic event and providing a timeline of treatment up to the first 30 days of recovery. c. The timeline of treatment would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, registered nurses, etc. Supporting documentation can also be submitted by other medical providers acting within the scope of their practice pertinent to the sustained injury/injuries, to include occupational/physical therapists, audiologists, or speech/language pathologists. 8. The letter also advised the applicant that he had the right to appeal the decision. If he elected to do so, he or his authorized representative must make the appeal in writing within one year of the date of the letter. 9. The applicant was retired due to physical disability on 16 July 2018. 10. It appears the applicant/counsel submitted an appeal to the HRC Special Compensation Branch's decision. The applicant's TSGLI Appeal Request Form SGL V-8600A and/or counsel's appeal letter are not available. 11. On 30 October 2018, the HRC, Special Compensation Branch (TSGLI), denied the request for reconsideration due to insufficient information to support the medical professional's statement. The denial letter states the following: a. OTI-ADL Loss (Up to 30+ days): Your claim for the inability to perform ADL due to OTI was not approved because the supporting documentation provided did not contain enough information to support that you could not perform ADLs independently. The statements provided were considered; however, the medical documentation provided does not adequately cover the first 30 days that are necessary to evaluate the claimed ADL loss from 10 February 2016 to 22 March 2016. b. Under the laws and regulations governing the TSGLI Program, 38 U.S.C. 1980A(b)(1 )(H), (b)(2)(D), and 38 CFR 9.20(d), (e)(6)(vi), (f)(17) and (f)(20)), documentation must demonstrate your inability to independently perform at least two of the six ADLs. To approve your claim, we need documentation addressing the specific injury/injuries you sustained as a result of the traumatic event and providing a timeline of treatment up to the first 30 days of recovery. The timeline of treatment would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, registered nurses, etc. Supporting documentation can also be submitted by other medical providers acting within the scope of their practice pertinent to the sustained injury/injuries, to include occupational/physical therapists, audiologists, or speech/language pathologists. 12. It appears the applicant/counsel submitted a second appeal to the HRC Special Compensation Branch's decisions. The applicant's TSGLI Appeal Request Form SGL V-8600A and/or counsel's appeal letter are not available. 13. On 13 January 2020, the HRC, Office of the Adjutant General responded to the request for reconsideration. The TAG stated: a. The Army TSGLI program office has received your appeal request for the applicant. After reviewing the claim and supporting documentation, I am unable to overturn the previous adjudication concerning losses associated with ADL from the traumatic event on 10 February 2016. b. Why The Claim Was Not Approved: For determining if a member has a loss of TSGLI program specific ADLs, the Federal Regulation 38 CFR 9.20 states "the term inability to carry out activities of daily living means the inability to independently perform at least two of the six following functions: (A) Bathing, (B) Continence, (C) Dressing, (D) Eating, (E) Toileting, (F) Transferring in or out of a bed or chair with or without equipment." The TSGLI Procedural Guide further clarifies "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." c. Concerning the OTI related ADL loss claim, the medical record does not support basic ADL loss at the 30-day milestone or beyond. The medical record initially shows his primary injury was to his left knee with a possible "tweak" to the right knee. The 10 February 2016 Emergency Department Physician Note documents he had a minor left knee injury and denied any other injuries including no head, neck, chest, back, or abdominal pain. The physical exam showed no tenderness to the neck or back with full neck range of motion and a normal right knee ligamentous exam, which indicate a stable and functional neck, back, and right knee. The 10 February 2016 Physical Therapy Initial Evaluation states he was unable to stand or walk on the left leg due to pain, but documents he could move the left knee from almost straight to bending it to an 80-degree angle. He received a hinged knee brace and crutches with training to don/doff the brace and gait training with limitations of weight bearing as tolerated and bending the knee from zero to 90 degrees in the brace. d. The 11 February 2016 (Day 2 after the traumatic event) Troop Medical Clinic Note documents he was mobile with use of a brace and crutches along with well- controlled pain. He also had normal balance and a normal gait. He was medically cleared to travel to his home station via a commercial airline unaccompanied. Because he was allowed to travel by a commercial airline unaccompanied, he demonstrated the physical ability to perform basic ADL in at least a modified independent manner per TSGLI guidelines. Otherwise, he would not have been allowed to travel or would have been sent through the medical evacuation system. In addition, the use of crutches demonstrated functional use of both arms. Thus, a person, who has stable and functional neck, back, arms, and right leg along with partial function of the left leg, should be able to bathe, dress, toilet, and transfer in at least a modified independent manner per TSGLI standards. The 16 February 2016 (Day 7 after the traumatic event) Troop Medical Clinic Note documents he had normal, painless right knee motion with no weakness and no limitations on mobility. It also states he had adequate pain control with a normal balance and gait. The 24 February 2016 (Day 15 after the traumatic event) Orthopedic Note documents he endorsed a "tweak" to his right knee but does not record a physical examination of the right knee. This would indicate the right knee "tweak" was deemed insignificant and not causing any substantial problems, which is consistent with the right knee physical exams from 10 February 2016 and 16 February 2016. Therefore, his OTl-related ADL loss claim does not qualify for TSGLI payment at the 30-day milestone. e. The applicant's and his wife's statements were reviewed and considered for this adjudication. The statement that his wife provided ADL assistance to him for a period is accepted without question. However, the fact that she 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 he could not have performed ADLs in even a modified independent manner. Unfortunately, there are discrepancies between these statements and the medical record. First, he states once he got home, he was bedridden and did not get up for any length of time until his doctor's appointment in March. However, the medical record shows he had doctor's appointments on 16 February 2016 (Day 7 after the traumatic event) and 24 February 2016 (Day 15 after the traumatic event). In addition, he and his wife state he took showers, and his wife states he went to the bathroom, which are times out of bed. Second, they state he was in excruciating pain, yet the 11 February 2016 and the 16 February 2016 Troop Medical Clinic Notes document his pain was adequately controlled. Third, although his wife states he did not have crutches when he returned home, the 11 February 2016 Troop Medical Clinic Note documents he was using crutches prior to leaving. Fourth, he indicates both legs had substantial problems, yet as discussed above, the medical record shows his right knee/leg did not have any significant pain or limitations until the 11 May 2016 surgery. f. Fifth, they both state his neck pain began two to three weeks after his accident, and he states his neck was immobile. However, the 10 February 2016 Emergency Department Physician Note documents he had full neck range of motion without pain. In fact, the first mention of neck pain in the medical record is in the 6 December 2016 Troop Medical Clinic Note approximately 10 months after the traumatic event. This note along with the 18 January 2018 Medical Board Narrative Summary state his neck pain did not begin until the August/September 2016 timeframe, approximately six months after the traumatic event, thus indicating no clear connection between the event and the claimed neck pain. Finally, although they say he did not have much range of motion in his left arm, the medical record does not mention any left shoulder problems until the 8 December 2016 Physical Therapy Note, approximately 10 months after the traumatic event. The fact that the left shoulder was not mentioned or addressed for 10 months would indicate it was not causing any significant problems or limitations prior to that time. Therefore, these statements are not definitive proof that he qualified for TSGLI payment at Day 30. g. The Independent Nurse Reviewers' statements were reviewed and considered for this adjudication. They both (note: only one Independent Nurse Reviewer's statement was provided in support of this request) reference a 10 August 2016 Case Management Note, which is 6 months after the traumatic event and over 4 months past the claimed ADL loss period. It states the applicant and his spouse "report up until about 3 weeks [prior] he needed assistance with most ADLs," and "service member needed help with all ADLs immediately following his injury for 6-8 weeks." It lists the ADLs requiring assistance as ambulation, bathing, dressing, eating, toileting, and transferring. Yet, this is the first visit with the patient for the case manager, so these statements are a patient self-report as opposed to a true medical assessment. This list of self-reported ADLs does not equate to the TSGLI standards, which state use of accommodating equipment or adaptive behaviors is considered independent performance. The inclusion of needing assistance with ambulation and eating is an example of how self-report does not necessarily meet the TSGLI standards. The medical record documents he was ambulating with crutches and a brace by Day 2. A person might consider use of crutches as needing assistance, but the TSGLI standards assess it as modified independent performance. Also, a person might believe the inability to stand and cook as needing help with eating, but the TSGLI standard states being able to use one's uninjured right arm to get food from one's plate to mouth is considered independent eating. In addition, the medical record documents physical ability in the notes from the first month after the traumatic event that would allow modified independent performance of ambulating, bathing, dressing, eating, toileting, and transferring per TSGLI standards, as discussed above. Furthermore, the fact that Nurse B and Nurse O only claim basic ADL loss for 42 days as opposed to the potential 160 days of ADL loss to which this 10 August 2016 note alludes indicates they had assessed this self-reported ADL loss did not meet the TSGLI standard for payment. 14. The TAG also advised the applicant and his counsel of their right to appeal to the Army Review Boards Agency and/or federal district court. 15. Based on the applicant’s condition the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, and the military electronic medical record (AHLTA). 2. The applicant is applying to the ABCMR requesting reversal of the previous denials of his application for benefits from the TSGLI program. Through counsel, he claims to have been unable to independently perform the four ADLs of dressing, transferring from bed to/from a chair, toileting, and bathing, with or without modification and/or assistive devices, for more than 30 but less than 60 consecutive days following his traumatic injury on 10 February 2016 and going thru 22 March 2016. 3. The Record of Proceedings (ROP) details the circumstances of the case and the previous denials. To date, the applicant has not received a payment from the TSLGI program. 4. The only medical documentation submitted with the application is that from the Vail Health Hospital the day of the injury, 10 February 2016. When seen at their emergency department approximately 2 hours, he stated he sustained a twisting injury to his left knee in a fall while skiing in Colorado. He both felt and heard a pop, and this was associated with the immediate onset of pain after the injury. This was his only complaint and he denied other injuries. A complete spine examination was normal as was a ligamentous exam of the right knee. 5. Radiograph of the left knee revealed a Segond fracture of the lateral tibial plateau. A Segond fracture is an avulsion fracture of the knee that involves the lateral aspect of the tibial plateau and is very frequently (~75% of cases) associated with disruption of the anterior cruciate ligament (ACL). It does not involve the weight bearing surface of the joint. The physician assessed the applicant as having an ACL tear in his left knee. He was sent to physical therapy for fitting of a hinged brace and crutches as needed, and directed to follow-up with an orthopedist at home. 6. He was seen at a troop medical clinical (TMC) on Fort Carson the following day for medical clearance to fly. His examination was unchanged, and he was granted clearance to fly home to Florida: 33yo 7th SFG SF ADSM {7th Special Forces Group special forces active duty service member} presents for medical clearance to travel after sustaining a left knee injury while skiing. X-rays completed at civilian facility showed a Segond fracture. Exam and history concerning for ACL and MCL sprains/tears. Currently, pain is well controlled with Motrin and Vicodin, and patient is mobile with use of brace and crutches. Medical clearance for travel provided through MFR. Follow-up with PCM {primary care manager} and Ortho upon return to FL for further evaluation (MRI) and treatment as indicated. 7. As stated in The Adjutant General’s denial memorandum: Because this Soldier was allowed to travel from Colorado to Florida by a commercial airline unaccompanied, he demonstrates the physical ability to perform basic ADLs in at least a modified independent manner per TSGLI guidelines. Otherwise, he would not have been allowed to travel or would have been sent through the medical evacuation system. In addition, the use of crutches demonstrated functional use of both arms. Thus, a person, who has stable and functional neck, back, arms, and right leg along with partial function of the left leg, should be able to bathe, dress, toilet, and transfer in at least a modified independent manner per TSGLI standards. 8. AHLTA shows the applicant was next seen 16 February 2016 at TMC 9, Special Forces, on Elgin Air Force Base located in the western Florida Panhandle. The patient reported adequate pain control on his current medication and was given an appointment to see orthopedics the following week. 9. When seen by orthopedics on 24 February 2016, his exam was again consistent with that of an ACL tear and there were no other complaints. The surgeon’s plan was to keep him in the knee brace, send him to physical therapy “for unrestricted pre- rehabilitation exercises to include unrestricted range of motion,” and to re-evaluate him in late March for planned surgical intervention (ACL reconstruction). His next AHLTA encounter was his follow-up visit with orthopedics on 30 March 2016. 10. The TSLGI Procedures Guides states a claimant for TSLGI is considered unable to perform an activity independently only if he or she, with or without activity modification and/or assistive devices, requires at least one of the following without which they would be incapable of performing the task: a. Physical assistance (hands-on) or, b. Stand-by assistance (within arm's reach) or, c. Verbal assistance (must be instructed) 11. TSGLI Procedures Guide states that when a claimant is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a PDA {personal digital assistant}, cane, crutches, wheelchair, etc.) then the claimant is considered able to independently perform the activity. 12. The TSGLI Procedures Guide, based on the regulations governing the program, requires medical documentation “indicating the member’s loss met the minimum TSGLI standard.” Evidence must demonstrate the inability to independently perform at least two of the six ADLs (Eating, Bathing, Dressing, Toileting, Transferring, and Continence) with or without modification and/or assistive devices. This evidence would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, registered nurses, etc. Supporting documentation can also be submitted by other medical providers acting within the scope of their practice pertinent to the sustained injury/injuries, to include occupational/physical therapists, audiologists, or speech/language pathologists. 13. There is no probative clinical evidence the applicant was unable to perform two or more ADLs for 30 days or more as claimed in the application. 14. In this insurance claim, counsel certifies the applicant sustained multiple additional injuries on the day of the trauma: In terms of the injury, on February 10, 2016 in Vail, CO, Mr. Aguilar was severely injured in a skiing accident during military training. Injuries include a left tibial plateau Segond fracture, Grade 3 left ACL tear with Grade 2 MCL tear, right knee MCL/MML tear, cervical spine injury with spinal cord involvement and left shoulder injury (Labral tear). 15. There was no medical documentation submitted with the application or found in AHLTA to support that these additional claims as noted on the certified and signed insurance claim application. Clinical evidence actually repudiates these claimed injuries: a. There is no evidence or mention of a cervical spine injury with cord involvement in the record. This is a very specific claim and these injuries are usually both dramatic and devastating. On the day of the left knee injury, the applicant denied other trauma and had other complaints to include no spinal or neurological complaints. Spine and neurologic examinations on 10 and 11 February were normal with no signs of injury. When seen for neck pain and left arm numbness on 6 December 2016: “states has been ongoing since Aug/Sept 2016 - states occurred during training/workout.” b. AHLTA shows the applicant presented with left shoulder pain in December 2016. c. Right knee injury. In AHLTA, the applicant states he had injured this knee prior to 10 February and that he believed it was instability in this knee which caused him to fall while skiing. From his 3 May 2016 orthopedic encounter: “He states the predominant issue is instability in the right knee, which led to his most recent injury regarding the left knee.” 16. Based on the information currently available, it is the opinion of the Agency Medical Advisor that there is no medical documentation supporting a TSGLI payment. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant approval of the applicant's claim for Traumatic Servicemembers’ Group Life Insurance (TSGLI) based on a traumatic injury resulting in losses of activities of daily living (ADL) for a period of 30 days BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX DENY APPLICATION 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. 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. REFERENCES: 1. Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief 2005) signed by the President on 11 May 2005 established the TSGLI Program. The U.S. Army Combat-Related Special Compensation Office 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. A service member must meet all of the following requirements to be eligible for payment of TSGLI. The service member must have: * been insured by SGLI at the time of the traumatic event * incurred a scheduled loss and that loss must be a direct result of a traumatic injury * suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services * suffered a scheduled loss within 2 years (730 days) of the traumatic injury * survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case) 2. 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 HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount. 3. Part I losses includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, facial reconstruction, and coma from traumatic injury and/or traumatic brain injury resulting in the inability to perform two ADL. 4. Part II losses include traumatic injuries resulting in the inability to perform at least two ADL for 30 or more consecutive days and hospitalization due to a traumatic injury and other traumatic injury 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 required assistance from another person 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 occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. 5. Appendix B (Glossary of Terms) of the TSGLI Procedures Guide provides the following definitions: a. Traumatic Event: 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 a living body. Examples include: * military motor vehicle accident * military aircraft accident * civilian motorcycle accident * rocket propelled grenade attack * improvised explosive device attack * civilian motor vehicle accident * civilian aircraft accident * small arms attack * training accident b. Traumatic Injury: The physical damage to a living body that results from a traumatic event. c. External Force: An external force is a rush of force or uncontrolled power that causes an individual to meet involuntarily and violently with an object, matter, or entity that causes the individual harm. 6. 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. Paragraph 2-11 states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200003121 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1