From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD Ref: (a) Title 10 U.S.C. 1552 Encl:(1) DD Form 149 w/attachments (2) Director CORB letter 1770 CORB of 5 May 2020 (3) Petitioner response to advisory opinion of 3 June 2020 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to award him $75,000 in Traumatic Servicemembers’ Group Life Insurance (TSGLI). Petitioner was previously denied relief by the Board on 21 February 2019. However, after he filed suit in the , his case was remanded back to the Board on 2 August 2019. Petitioner’s case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board reviewed Petitioner’s allegations of error and injustice on 30 July 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. A review of Petitioner’s record shows he entered active duty with the Navy in November 2004. He fractured his left lower leg on 2 September 2016 jumping off a trampoline at his house and underwent surgery on 21 September 2016 to repair the fracture and have screws placed in his leg. He was released from the hospital on 24 September 2016 with instructions not to bear weight on his left leg for approximately eight weeks. In addition to his left leg injury, Petitioner reported burning pain and numbness to his non-injured right leg that was eventually diagnosed as Meralgia Paresthetica. Some sutures were removed on 6 October 2016 and Petitioner was placed in a Cam boot with instructions not to bear weight on the leg. Medical notes indicated he needed assistance to perform activities of daily living (ADLs) at that time. Remaining sutures were removed on 13 October 2016 with continued instructions not to bear weight on his left leg and he remained under instructions to be non-weight bearing through the entire period which Petitioner claimed loss of ability to perform ADLs. On 14 December 2016, Petitioner had the screws removed from his leg which allowed him to progressively bear weight on his left leg as of 29 December 2016. c. Petitioner subsequently filed a TSGLI claim for the loss of the ability to perform at least two ADLs for 90 days. His initial claim and reconsideration request was denied for failure to meet TSGLI criteria for approval. He subsequently filed an appeal to the TSGLI Appeals Board that was also denied on 2 May 2018 based on a finding that Petitioner was able to use adaptive equipment to perform the claimed ADLs. On 23 May 2018, Director, Secretary of the Navy Council of Review Board denied Petitioner’s request for reconsideration based on lack of new evidence. This Board subsequently denied Petitioner’s first application to overturn the Navy decision to deny him TSGLI benefits based on findings that he should have been able to utilize adaptive equipment to perform the claimed ADLs. d. In May 2019, Petitioner filed suit in the complaining that he was denied due process in the denial of his TSGLI claim. However, his main contention was that the Department of the Navy failed to properly consider medical and witness evidence in the adjudication of his TSGLI claim. In his opinion, he was unable to perform ADLs without required assistance during the claimed 90-day period due to being non-weight bearing on his fractured left leg while suffering from Meralgia Paresthetica in his right leg. e. In enclosure (2), Director, Secretary of the Navy Council of Review Board provided an advisory opinion recommending denial of Petitioner’s remanded application. The opinion states that Petitioner’s medical records do not support a finding that he required assistance to perform at least two ADLs during the 90-day period since his impairment was limited to a single lower extremity and he was never referred for physical therapy; a practice that is standard when a service member is unable to perform ADLs without assistance. When considering all the conflicting evidence in totality, the Director believes that the evidence submitted by Petitioner was outweighed by the conflicting medical evidence in the case. f. In enclosure (3), Petitioner provided a rebuttal response to the advisory opinion. In his response, Petitioner provided an independent medical opinion that argues that the medical evidence documents Petitioner was unable to utilize his right leg to compensate for his injured left leg. In addition, the medical opinion points out that Petitioner’s medical providers were concerned about Petitioner attempting to progress too quickly due to the complexity of his left leg injury and indicated he required some assistance in performing ADLs. Finally, the opinion points out that Petitioner’s medical records document he did not have access to adaptive equipment until 12 December 2016; approximately 101 days from his injury. g. In regard to Petitioner’s request for a personal appearance, the Board determined that a personal appearance was not necessary and considered the case based on the evidence of the record. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following corrective action. The Board concluded the preponderance of the evidence supports a finding that Petitioner was unable to toilet or bathe without required assistance from 2 September 2016 until 29 December 2016; the date he was medically allowed to bear weight on his left leg. The Board concluded Petitioner suffered a qualifying traumatic injury on 2 September 2016 that prevented him from utilizing his left leg through at least 29 December 2016 since he was medically restricted from bearing weight on that leg. In addition, the Board concluded that Petitioner suffered from Meralgia Paresthetica of his right leg that prevented him from compensating for his non-weight bearing leg without using adaptive equipment. However, despite finding that Petitioner would have, more likely than not, been able to perform certain claimed ADLs without required assistance by using adaptive equipment, the Board concluded he would not have been able to reasonably toilet or bathe without assistance even with the use of adaptive equipment. In reaching this conclusion, the Board determined that Petitioner would not have been able to wipe himself after toileting with the use of crutches or other adaptive equipment since he would be required to support himself with both his arms to stand. His inability to use both of his legs required him to utilize two crutches as adaptive equipment. This requirement would have prevented him from using his hands beyond supporting his crutches under his arms. Similarly, the Board found that the evidence supports a finding that Petitioner could not have bathed independently for the same reason. At a minimum, he would have required stand-by assistance in order to towel off after completing his bathing. It’s more likely than not that he required additional assistance to adequately bathe due to his inability to stand without crutches. While the Board agreed with the advisory opinion that Petitioner’s medical record does not specifically address whether he required assistance to perform specific ADLs or assigned him physical therapy, the Board felt the opinion did not adequately consider Petitioner’s inability to fully utilize adaptive equipment to perform ADLs. While Petitioner’s fractured left leg may have been the basis for his TSGLI claim, the Board felt it necessary to consider whether additional factors, e.g. his right leg Meralgia Paresthetica, may have prevented Petitioner from utilizing adaptive equipment in the performance of ADLs. RECOMMENDATION: That Petitioner’s naval record be corrected, where appropriate, to show that his TSGLI claim for $75,000 was approved due to his inability to toilet or bathe without required assistance from 2 September 2016 until 29 December 2016. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.