ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-01167-2

	COUNSEL:  

	HEARING: NOT INDICATED

APPLICANT REQUESTS THAT:

His Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI) application be approved and he be paid $100,000 for the period of 20 Feb 08 to 20 Aug 08.  

RESUME OF THE CASE:

The applicant is a former Air National Guard staff sergeant.  

On 20 Feb 08, the applicant fell while performing an aircraft inspection and injured his left shoulder, left wrist and knees and received emergency treatment the same day.  He was discharged with a sling and restriction of no lifting.  He was diagnosed with a fractured humorous with possible torn ligament.  On 22 Jun 09, he had surgery for labral tear left shoulder.   

On 27 Jun 13, his TSGLI claim that he could not perform the ADLs of bathing and dressing independently from 20 Feb to 20 Aug 08 was denied.  

On 10 Oct 13, his TSGLI appeal was denied.  The reason for disapproval was that the medical documentation did not support he was unable to perform at least two of the six ADLs for at least 30 consecutive days.   

On 26 Feb 15, the AFBCMR considered and denied the applicant’s request for TSGLI.  The Board noted the applicant’s wife provided a sworn affidavit stating the applicant’s loss of 120 days of ADLs and that he still required assistance due to the nature of his injuries.  However, the Board found there was not substantial evidence to refute the assessment of his case by AFPC/DPFC.   For an accounting of the applicant’s original request and rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit G.

On 22 Feb 18, the Court of Federal Claims (CoFC) granted in part and denied in part the applicant’s motions.  The decision of the AFBCMR was vacated and the case was remanded.  The CoFC granted remand but concluded the record did not compel awarding the claim.  The CoFC found the flaw in the AFBCMR decision was it failed to adequately explain its reasoning and there is no guarantee that a well-reasoned decision would be favorable to the applicant. The CoFC noted the AFPC/DPFC advisory did not consider the affidavit of his wife.  The AFBCMR grappled with the new evidence and failed to justify disregarding the affidavit.  The Court stated it is not enough for there to be some plausible basis for the Board’s decision and that the Board must express its reasons for reaching the decision.  The Court cannot discern from the conclusory statement why the Board discounted the affidavit, which if fully credited would establish his claim for TSGLI benefits.  The AFBCMR made no findings of the affidavit’s credibility or that it was fraudulent and merely summarized the contents.  The AFBCMR may have had good reason to find his wife was lying or her memory was unreliable six years after the fact or that even if she had provided assistance with bathing and dressing as claimed, the medical records still compelled that the assistance was not required.  However, it skipped to conclude that the evidence was insufficient.  The CoFC Order and Memorandum Opinion are at Exhibits H and I.

AIR FORCE EVALUATION:

AFPC/DPFC recommends denial.  Based on eligibility criteria outlined in Code of Federal Regulations (CFR) Title 38 9.20 and Public Law 109-13, the applicant’s TSGLI claim does not meet TSGLI eligibility criteria for payment of ADL loss for 120 consecutive days or a lessor payment threshold.   

The evidence of facts are unchanged from the prior case.  The Court made clear the flaw in the AFBCMR’s decision was it failed to adequately explain its reasoning concerning the probative value of the affidavit of the applicant’s wife.   Several documents in the record suggest the applicant and his wife were in fact separated and he was in a relationship with another woman while recovering from his accident in 2008.  Information related to this matter has never been reviewed by Air Force Casualty or provided to the AFBCMR as a part of the adjudication of this claim or subsequent appeals.  

A medical board physician evaluated the affidavit provided by the applicant’s wife and indicated the affidavit has decreased probative value compared to the medical record.  The medical records strongly support the conclusion the assistance in ADLs as stated in the affidavit was not medically necessary and the applicant could have performed dressing tasks on his own, even if performed more slowly, and that bathing likewise could have been accomplished after the first 60 days.  There is insufficient evidence to indicate the applicant required assistance with two or more ADLs for 30 continuous days or more.  The medical records during the claimed loss timeframe and prior TSGLI medical assessments were weightier than the signed affidavit from the applicant’s claim.   DPFC recommends a separate legal advisory with inclusion and advisement on the Court presented documents.  The complete advisory is at Exhibit J.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 9 Jul 18 for comment (Exhibit K), but has received no response.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA provides documents pertaining to Hensley v. United States, specifically documents relevant to the affidavit provided by the applicant’s wife.  The documents are provided to the AFBCMR to assist them in complying with the requirements of the 22 Feb 18 Remand Order.

         a. Applicant Motion for Summary Judgment (Atch 1): Provides arguments for why the affidavit should be given more weight than the BCMR originally afforded it. 

          b. Government Cross-Motion for Summary Judgment (Atch 2): Government motion for summary judgment includes details about the applicant’s living and family situation and highlights the government’s ultimately unsuccessful argument on why the AFBCMR’s initial handing of the affidavit was appropriate.

           c. Reply Memorandum in Opposition to Government’s Motion for Summary Judgment (Atch 3): applicant’s response to the government’s cross-motion for summary judgment seek to counter the government’s argument that the truthfulness of the affidavit is suspect. 

           d. Reply Memorandum in Support of Defendant’s Cross-Motion for Summary Judgment (Atch 4): provides further argument from the government why the BCMR’s initial handling of the affidavit was appropriate.

           e. Document 18-1 Supporting Evidence (Atch 5): Provides medical documentation and other evidence in support of the government motion for summary judgment.  
The above list constitutes relevant documentation from Hensley v United States Court filing.   The complete advisory is at Exhibit L.  

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the additional Air Force evaluation to the applicant on 22 Aug 18 for comment (Exhibit M), but has received no response.  

THE BOARD CONCLUDES THAT:

After reviewing all Exhibits, the Board is unconvinced the evidence presented demonstrates an error or injustice and therefore finds no basis to grant the requested relief.   As ordered by the CoFC, the Board reconsidered the applicant’s request for TSGLI.  Moreover, since AFPC/DPFC did not consider his wife’s affidavit in the initial case, a new advisory opinion was obtained in which AFPC/DPFC considered the probative value of the affidavit alongside the medical evidence.  A legal advisory was also obtained to assist the Board in complying with the requirements of the CoFC Remand Order dated 22 Feb 18.  

Medical board physicians reviewed the applicant’s TSGLI claim, appeal and AFBCMR application and concluded there was no evidence he was unable to perform the ADLs of bathing and dressing for 120 days as claimed.  The medical documentation includes no evidence in the record that he required assistance with two or more ADLs for 30 continuous days or more for award of the TSGLI benefit.  The applicant returned to work a week after the accident and although he had limitations in range of motion in his left shoulder as well as weakness of grip, they did not create a medical necessity for assistance with dressing and bathing as stated.  While counsel provides the applicant’s medical history, he has not provided any evidence to prove his claim or refute the evaluations by medical board physicians.     

The applicant’s wife provided an affidavit dated 18 Jun 14, which was reviewed by AFPC/DPFC.  A medical board physician indicated, the affidavit has decreased probative value compared to the medical record and the medical evidence shows he could have performed dressing tasks on his own, even if performed more slowly and that bathing tasks could have been accomplished after the first 60 days.  The Board agrees with AFPC/DPFC that the medical evidence in the case is weightier and more credible than the affidavit of his wife. We also find reason to question the veracity of the affidavit.  His wife may have provided physical and standby assistance as she states; however, we note memories fail and in this case, the affidavit was completed more than 6 years after his injury.  The affidavit also includes no conclusive evidence the assistance was a result of medical necessity and instead describes the assistance provided.  She also states she reviewed the comments provided by the doctor in her husband’s appeal and that it was consistent with the care provided; however, we again note the doctor did not observe the loss.  Further, a medical summary note dated 25 Feb 08 states the applicant was married but separated at the time.  Given the applicant’s marital status at the time, there is some uncertainty in the truthfulness of the affidavit.  We are also keenly aware his wife stands to benefit in the approval of the TSGLI claim.   In view of the above, we find the affidavit does not disprove the medical evidence which shows he did not suffer the loss of ADLs (bathing and dressing) from 20 Feb 08 to 20 May 08 for award of a TSGLI benefit of $100,000, or any lessor payment threshold under the criteria set forth in PL 109-13 and CFR Title 38 Para 9.20.   The Board concurs with the rationale and recommendation of AFPC/DPFC and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.   Therefore, the Board recommends against correcting the applicant’s records.  

The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2014-01167-2 in Executive Session on 25 Sep 18:

 , Panel Chair
 , Panel Member
 , Panel Member

 All members voted not to correct the record.  The panel considered the following:

Exhibit G:	Record of Proceedings, w/ Exhibits A-F, dated 10 Mar 15.
Exhibit H:	CoFC Order, dated 22 Feb 18.
Exhibit I:	CoFC Memorandum Opinion, dated 22 Feb 18.  
Exhibit J:	Advisory opinion, AFPC/DPFC, dated 27 Jun 18.
Exhibit K:	Notification of Advisory, SAF/MRBC to applicant, dated 9 Jul 18.
Exhibit L:	Advisory opinion, AFPC/JA, w/atch, dated 3 Aug 18.
Exhibit M:	Notification of Advisory, SAF/MRBC to applicant, dated 22 Aug 18.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.