Dear ,  
 
This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 1 October 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies.   
 
A review of your record shows that you entered active duty with the Marine Corps in December 2013.  On 13 September 2017, you suffered a traumatic brain injury in  when struck with a forklift.  You were hospitalized until 26 September 2017 and transferred to  for follow-on treatment.  You underwent extensive physical therapy but was eventually referred to the Disability Evaluation System and placed on the Temporary Disability Retirement List.  Post-retirement, you filed a Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim for inability to perform activities of daily living (ADLs) without required assistance due to the traumatic injuries you suffered in September 2017.  After your initial claim was denied, you filed for reconsideration and was approved for $25,000 based on your period of hospitalization.  However, your loss of ADLs was again denied based on a finding that you did not meet the criteria for payment.  You subsequently filed an appeal to the TSGLI Appeals Board for loss of ADLs but was denied on 9 August 2019 based on a finding that insufficient evidence existed to support your claim. 
 
The Board carefully considered your arguments that you deserve payment of $75,000 for loss of ADLs for a period of 90 days due to your Traumatic Brain Injury.  You assert that Functional Independent Measures (FIM) in your medical record document your need for assistance in performing various ADLs through 13 December 2017.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the rationale contained in the 9 August 2019 TSGLI Appeals Board decision letter in your case.  Specifically, the Board concluded that the preponderance of the evidence did not support a finding that you required assistance to perform at least two ADLs as of 5 October 2017.  Therefore, the Board concluded that you did not meet the criteria for payment of $75,000 under the TSGLI program.   
 
The Board carefully reviewed your medical record and noted that there appeared to be a discrepancy between the FIM determinations and your physical therapy notes.  For example, the FIM document states that you required assistance 75% of the time for bathing and dressing, 50% of the time for eating, and 50% of the time to maintain safety and balance during transferring as of 13 October 2017.  But your physical therapy notes indicate that you exhibited no lower extremity loss of function, dizziness, nausea, or headaches as of 2 October 2017.  Further, as of 5 October 2017, you were able to hold 90% of your body weight with your left upper extremity for approximately 10 seconds.  In the Board’s opinion, this was strong evidence that you were functionally able to perform the minimal physical tasks of eating, dressing, bathing, toileting, and transferring independently.  As pointed out in the TSGLI Appeals Board decision letter, there were too many inconsistencies between the FIM report and your detailed physical therapy notes for the Board to be able reasonably conclude that the FIM report was an accurate assessment of your ability to perform ADLs.  In addition to the previously discussed discrepancy, the Board also noted that your 13 November 2017 FIM assessment that you still required assistance to perform ADLs was not supported by the physical therapy report that documented your ability to ski-erg for 10 minutes, conduct soccer ball and medicine ball exercises, and TRX rows.  In reviewing the evidence, the Board found the physical therapy reports more persuasive since they contained detailed notes of your ability to perform exercises compared to your FIM report that simply listed measurements without explanation.  Without additional evidence to explain the extreme discrepancies between the FIM document and your extensive physical therapy reports, the Board agreed with the TSGLI Appeal Board decision that the evidence does not support payment for loss of ADLs under the TSGLI program guidelines. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.   
 
       Sincerely,