RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01054 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His Service Member’s Group Life Insurance Traumatic Injury Protection (TSGLI) claim be approved due to his inability to perform at least two of the six Activities of Daily Living (ADLs) for 60 consecutive days. ________________________________________________________________ APPLICANT CONTENDS THAT: Due to his traumatic injury, he is entitled to TSGLI and he has provided the supporting documents indicating his inability to perform at least two of the six ADLs. He has also provided a duty limiting profile reflecting his diagnosis. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of Senior Airman (SrA, E-4). According to documentation provided by the applicant from the Department of Neurosurgery and Brain Repair, dated 12 Sep 12, on 13 Feb 12, he was involved in a vehicle accident that hospitalized him from 13 Feb 12 to 15 Feb 12. He was diagnosed with post-traumatic stress disease due to Traumatic Brain injury (TBI) as a result of the vehicle accident and required assistance bathing and changing his clothes from 13 Feb 12 to 14 May 12. According to a SF 600, Chronological Record of Medical Care, dated 16 Feb 12, the applicant was placed on convalescence leave as a result of a closed fracture of the sixth cervical vertebrae from 16 Feb 12 to 27 Feb 12 with instructions to return the following week for further treatment plans and limitations. According to a SF 600, dated 27 Feb 12, the applicant was released from convalescence leave and returned to duty with limitations of no running, no lifting/pushing/pulling more than 5 pounds, no high impact activities, and no repetitive bending at the waist. According to a SF 600, dated 21 Mar 12, the applicant was continued with limitations of no running, no lifting/pushing/pulling more than 5 pounds, no high impact activities, no repetitive bending at the waist, to include having to wear an Aspen Cervical Collar in uniform. The applicant submitted a TSGLI application, dated 12 Jun 12, claiming the inability to perform the ADL of bathing and dressing during the period of 13 Feb 12 and 14 May 12 (signed by the certifying medical professional on 14 Jun 12). In a letter provided by the applicant, dated 13 Aug 13, the Physical Disability Division denied his appeal of his TSGLI application indicating his loss did not meet the eligibility criteria for inability to perform ADLs. Specifically stating, the medical documentation does not support that he was unable to perform at least two of the six ADLs for at least 15 consecutive days due to TBI or 30 consecutive days due to other traumatic injury. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFC recommends denial indicating that after reviewing the applicant’s original claim and appeal, he does not meet TSGLI criterion for ADL loss due to TBI or Other Than TBI (OTI) for any payable threshold. On 5 May 05, Public Law 109-13 established a traumatic injury program designed to provide financial assistance to service members during recovery from a serious traumatic injury (not necessarily as a result of combat). TSGLI is a rider to the SGLI policy. TSGLI pays a monetary benefit from $25,000 to $100,000 for covered losses that are incurred by the member as a result of traumatic injury. Code of Federal Regulations (CFR) Title 38 Para 9.20 prescribes that each service certifies whether a service member was insured under SGLI and whether they sustained a qualifying loss. The TSGLI loss criteria are prescribed in the TSGLI Procedures Guide. A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADLs (eating, bathing, dressing, toileting, transferring and continence). Based on the eligibility criteria outlined in CFR Title 38 9.20 and Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 (Public Law 109-13), the applicant’s TSGLI claim does not meet the TSGLI eligibility criteria for payment of ADL loss for 90 consecutive days or lessor payment threshold. The burden of proof is on the applicant to demonstrate that he suffered a scheduled loss as a result of his traumatic event. Most of the applicant’s contentions referencing various publications pertain to the Medical Evaluation Board or Disability process. The TSGLI program is separate from those programs and therefore, those publications are not applicable to his claim. Additionally, the applicant’s reference to the Neurological Surgeon’s letter, dated 12 Sep 12, explaining his inability to independently perform two ADLs, actually contradicts the TSGLI claim form that say the ADL loss was due to having to wear the cervical collar vice TBI. The complete DPFC evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial. The applicant has not provided his initial assessment at the time/date of hospitalization, the status of his condition(s) at the time of discharge from hospital, nor details of his clinical progress during the total period of care designated in the surgeon’s memo. The applicant being returned to duty does not mean he no longer requires assistance in certain ADLs once these have been accomplished for a given day. Additionally, the applicant has not provided any chronological objective assessment of his cognitive functioning from the time of injury through 14 May 12, the end date referred to in his provider’s memo. The applicant has only provided the memo from his surgeon, with the general statement that he was unable to bathe and dress from 13 Feb 12 to 14 May 12. With respect to TBI, the TSGLI policy requires physical, stand-by, or verbal assistance to perform the applicable ADLs. The applicant has provided no evidence to indicate which, if either, of these requirements were met. Furthermore, other than the brief memo from the applicant’s neurosurgeon, there is no indication in the provided medical documentation that there was a need for assistive devices, specifically for dressing and bathing or a requirement for hands-on assistance, stand-by assistance, or any sort of verbal coaching in any functions. There are no discharge planning summaries or notes provided to indicate instructions were given to a caregiver or an individual who would be responsible for assisting the applicant in his recovery from his date of discharge from the hospital to 14 May 12. Lastly, if the applicant’s sixth cervical vertebral body fracture and the use of the Aspen Cervical Collar, which appears to have exceeded 30 days, also required the assistance of another person to bathe and dress him, then the minimum criterion for OTI could be met. However, no evidence has been provided to indicate the applicant was strictly prohibited from removing the collar for any reason, but particularly for dressing or bathing. Nor that the collar was an impediment to bathing and dressing and required the assistance of another individual for the minimum 30 days. The complete BCMR Medical Consultant evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant asserts that no comments were made by DPFC or the BCMR Medical Consultant against the validity of his neurosurgeon’s memorandum addressing his inability to perform two ADLs. DPFC’s claim that AFI 48-123, AFI 36-3212, and DoDI 1332.39 are not applicable appears to disassociate the congruency that TBI and OTI should and will be categorized to a common standard. The sole purpose of pointing out those publications was to emphasize the importance of coherency. Additionally, DPFC infers that the 27 Feb 12 restrictions placed on him upon his return to duty is grounds for being independent. However, those restrictions were required wearing an aspen collar and taking anti-seizure and pain medication in which both affect spatial awareness. Additionally, DPFC assumed the restrictions after 27 Feb 12 were different during convalescent leave, apparently omitting a memorandum that states the inability to perform ADLs independently until 14 May 12 as a result of TBI. The purpose of a profile is to allow members to at least perform tasks contingent to their physical abilities. DPFC later cites publications TSGLI claims are based on; however, none qualify a denial of benefits where a medical professional identified two ADL losses. The BCMR Medical Consultant refers several times to incorrect dates and references to an attached memorandum, dated 21 Sep 12. Also he references that the initial claim was a hospitalization due to TBI and indicates that an additional qualifying criterion is limited to the length of hospital stay. However, according to TSGLI Schedule of Losses, Part 1, Number 17, “Coma from traumatic injury AND/OR TBI resulting in inability to perform at least 2 ADLs…and the member’s inability lasts for at least 15 consecutive days…” Additionally, the consultant’s claim that the civilian hospital failed by not making available an evaluation by an occupational therapist prior to discharge, lacks coherency because less than one percent of the U.S. population is in the military. DPFC’s confirmation of the information received for review, even with several errors made in response by the BCMR Medical Consultant, agrees the documents align with TSGLI compensation criteria. While the BCMR Medical Consultant claims the necessary information was not there, the applicant maintains, to even send a BCMR application, the TSGLI clam had to be denied several times, and every document pertaining to the claim was sent to the TSGLI representatives. Each denial never discredited the memorandum by the neurosurgeon and the BCMR application was to point out that significant issue in which the BCMR Medical Consultant never addressed. The neurosurgeon’s memorandum is sufficient evidence and there is no claim to disregard its validity at any point. The applicant maintains that the issue is what is considered agreeable documentation and asserts there is an arbitrary acceptance of documents diagnosing TBI and OTI; however the memorandum is completely overlooked, even when the same resource provided the information. He argues that DPFC indicates his claim does not meet the TSGLI eligibility criteria; however, according to Public Law (PL) 109-13 section 1032, the documentation provided by the medical professional clearly indicates his inability to perform two of the ADLs listed in PL 109-13. He asserts that the documents provided directly support ADL losses either by directly pointing it out or in a profile. Therefore, the applicant contends that the criterion has been met for TSGLI and denial of his claim is a complete injustice. The applicant’s complete response, with attachments, is at Exhibit F. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the available evidence and the applicant’s complete submission we are not persuaded the applicant’s TSGLI application should be approved. We note the applicant provides a memorandum from his neurosurgeon stating the applicant needed assistance in two ADLs for approximately 90 days due to the nature of his injuries. However, in our opinion, substantial evidence has not been presented to successfully refute the assessment of his case by the Air Force Offices of Primary Responsibility (OPR). Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of either an error or an injustice. Absent persuasive evidence that he was denied rights to which he was entitled, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2014-01054 in Executive Session on 8 Apr 15, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 5 Mar 14, w/atchs. Exhibit B. Applicant's Available Master Personnel Records Exhibit C. Letter, AFPC/DPFC, dated 14 May 14. Exhibit D. Letter, BCMR Medical Advisory, dated 12 Nov 14. Exhibit E. Letter, SAF/MRBR, dated 2 Feb 15. Exhibit F. Letter, Applicant, undated, w/atchs.