From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/application package (2) Line of duty report of 18 November 2017 (3) Senior Chief memorandum of 10 January 2018 (4) LCDR memorandum of 28 March 2017 (5) Dr. letter of 30 March 2017 (6) CDR letter of 13 April 2017 (7) Director CORB letter 1770 CORB of 1 May 2020 (8) Petitioner’s response to advisory opinion of 23 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 pay him $100,000.00 in Traumatic Servicemembers’ Group Life Insurance (TSGLI) benefits. Petitioner 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 29 October 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. Petitioner entered active duty with the Navy in January 2000. On 15 June 2016, Petitioner participated in a replenishment at sea (RAS) where he came into contact with a bale of rags that struck him in the shoulder. A line of duty investigation confirmed the incident. See enclosures (2) and (3). Petitioner asserts that he subsequently felt back pain while preparing to exercise after completion of the RAS. The next day, Petitioner was seen by a Corpsman who prescribed anti-inflammatory medication but documented the cause of his back pain as unknown. On 18June 2016, Petitioner again reported to medical after reporting a “tweak” to his back. There is no documentation in Petitioner’s medical record from that day which discussed the cause of his injury. Two days later, Petitioner was medically evacuated from his ship and underwent surgery for a herniated disc and spinal swelling. Medical records from the same Corpsman state that the initial cause of the injury was unknown but Petitioner reported pain after getting out of a chair. Petitioner eventually developed paraplegia and was placed on the disability retirement list on 28 May 2018 with a 100% disability rating. He is paralyzed and requires assistance to perform various activities of daily living. c. While Petitioner was being processed through the Disability Evaluation System, he filed a TSGLI claim with the Navy after his surgery. The claim was initially denied on 18 October 2016. A reconsideration was filed with opinion statements from Petitioner’s Neurosurgeon, Orthopedic surgeon, and Senior Medical Officer stating that they believed the cause of his back injury and paraplegia was due to the RAS incident involving a bale of rags. See enclosures 4 through 6. Despite this evidence, Petitioner’s TSGLI reconsideration request was denied by Navy Personnel Command on 1 August 2017. Petitioner subsequently filed an appeal to the TSGLI Appeals Board with witness evidence attesting to the occurrence of the RAS incident. Again, Petitioner was denied relief on 23 March 2018 based on lack of evidence that a traumatic event cause his injury. Finally, Petitioner was denied reconsideration on 15 June 2018 before requesting relief by this Board on 9 July 2020 based, in part, on the opinion provided in enclosure (7). d. In Petitioner’s application for reconsideration of this Board’s decision, he argues that the Board failed to properly consider the line of duty investigation findings that confirmed the occurrence of the traumatic incident that forms the basis for his claim. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting the following corrective action. Specifically, the Board determined the preponderance of the evidence does support a finding that Petitioner suffered a scheduled loss worth $100,000.00 under the TSGLI guidelines that is the direct result of a traumatic event. In order to qualify for TSGLI payment, the preponderance of the evidence must show that a service member suffered a scheduled loss that is the direct result of a traumatic event. A traumatic evidence is defined in the TSGLI procedural guide 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.” In analyzing Petitioner’s case, there was no question that he suffered a schedule loss when he became paralyzed and was unable to perform at least two activities of daily living indefinitely. The larger question was whether the scheduled loss was a direct result of the incident during the RAS. The previous Board concurred with enclosure (2) and determined the preponderance of the evidence did not support a nexus between Petitioner’s schedule loss and his RAS incident based on the lack of medical documentation identifying the incident as the cause of his back condition prior to his surgery. However, after reconsidering the evidence, the Board concluded the weight of the evidence supports a nexus between Petitioner’s RAS incident and his subsequent inability to perform activities of daily living without required assistance for 120 days. The Board considered that, absent evidence of error, medical opinions issued by providers who provided care contemporaneous with an incident in question are typically afforded great weight in making findings of fact. In this case, the Corpsman who prepared the medical documentation did not identify a cause of Petitioner’s back pain symptom because Petitioner did not provide one. The Board concluded that it was not in the interests of justice to deny Petitioner’s claim potentially because he could not specify a possible cause of his injury at the time when he was suffering from an injury. Further, when balanced against the existence of a line of duty determination that Petitioner was struck by a heavy bale during the RAS and three medical opinions from experienced medical providers that link his paraplegia to the RAS incident, the Board determined, it was more likely than not, that Petitioner injured his back injury occurred during the RAS incident and not when he tripped or stood up from a chair. Since his paraplegia condition indefinitely prevents him from bathing, dressing, toileting, and transferring without required assistance, the Board determined he met the criteria for loss of activities of daily living for 120 days and payment of $100,000.00 under the TSGLI program. RECOMMENDATION: That Petitioner’s naval record be corrected, where appropriate, to show that he qualified for payment of $100,000.00 under the TSGLI program for loss of activities of daily living for at least 120 days. 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. 5. The foregoing action of the Board is submitted for your review and action. 11/16/2020 Executive Director Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Board Recommendation (Grant Relief) 11/30/2020 ASSISTANT GENERAL COUNSEL (M&RA)