RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02007 COUNSEL: YES HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI) claim be approved APPLICANT CONTENDS THAT: His inability to perform at least two of six Activities of Daily Living (ADL) for 90 consecutive days make him eligible for TSGLI payment. The initial decision to deny his TSGLI claim should be reversed. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Air Force Reserve on 1 Feb 05. On 13 May 09, the applicant was injured in a duty related all terrain vehicle (ATV) accident at Dobbins ARB, GA. He ran over his own right leg while operating an ATV. He sustained a closed fracture of his distal tibia and fibula of the right leg. On 14 Nov 12, the applicant submitted a TSGLI application claiming the inability to perform the ADLs of bathing and dressing (due to other traumatic injury (OTI) for the period 13 May 09 to 12 Aug 09. His claim was denied on 8 Feb 13. The reason given was “your claim for the inability to perform activities of daily living due to other traumatic injuries was not approved because your loss did not meet the standards for TSGLI.” On 11 Jul 13, the applicant appealed the decision; however, reconsideration was denied on 10 Oct 13. The reason given was the medical documentation did not support that he was unable to perform at least two of the six activities of daily living (ADL) for at least 30 consecutive days. On 12 Nov 13, the applicant went through the Informal Physical Evaluation Board (IPEB) and was found unfit and recommended discharge with severance pay with a disability rating of ten percent. On 20 Nov 13, The Secretary of the Air Force Personnel Council (SAFPC) directed the applicant be separated from active service for physical disability under the provisions of 10 USC 1203, with severance pay. On 25 Feb 14, the applicant was discharged honorably, and was credited with 9 years and 24 days of active service. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPFC recommends denial indicating there is no evidence of an error or an injustice. Based on the eligibility criteria outlined in CFR 38 9.20 and Emergency Supplemental Appropriation Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 (Public Law 109-13), the applicant’s claim does not meet the TSGLI eligibility criteria for payment of ADL loss or 90 consecutive days or lessor payment threshold. The burden of proof is on the applicant to demonstrate he suffered a scheduled loss (in this case, inability to perform two of six ADLs for at least 30 consecutive days). Neither the original claim nor the appeal was arbitrarily denied. Two experienced physicians reviewed the claim and medical records and determined the applicant did not meet the criteria for ADL loss. The applicant submitted a TSGLI application claiming the inability to perform the ADLs of bathing and dressing (due to other traumatic injury (OTI)) for the period of 13 May 09 to 12 Aug 09. The physician utilized by the applicant to certifying the ADL loss was provided by the Law firm representing the applicant. The physician indicated on the claim form he had not observed the patient’s loss, but had reviewed the patient’s medical records to determine the loss claimed. The qualifications for TSGLI include the following: there must be a traumatic event, as defined by TSGLI law, which causes physical damage to the body resulting in a scheduled loss. The criteria for ADL loss as it is defined in the TSGLI procedures Guide follows: A member is considered to have a loss of ADL if the member REQUIRES assistance to perform at least two of the six activities of daily living. If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior, the patient is considered able to independently perform that activity. REQUIRES assistance is defined as: Physical assistance – when a patient requires hands-on assistance from another person Stand-by assistance – when a patient requires someone to be within arm’s reach because the patient’s ability fluctuates and physical or verbal assistance may be needed Verbal assistance – when a patient requires verbal instruction in order to complete the ADL due to cognitive impairment. Without these verbal reminders, the patient would not remember to perform the ADL. Without the physical, stand-by, or verbal assistance, the patient would be incapable of performing the task. When a member is unable to perform two of the six activities of ADL due to a traumatic injury other than Traumatic Brain Injury (TBI), the TSGLI benefit will be paid based on the number of consecutive days the member is unable to perform ADL. The duration of loss of ADL includes the date the member began to be unable to perform ADL and the date the member was again able to perform ADL. On 5 May 06, Public Law 109-13 was signed by President Bush establishing a traumatic injury program designed to provide financial assistance to servicemembers during recovery from a serious traumatic injury (not necessarily the result of combat). The insurance (TSGLI) is a rider to the member’s Servicemembers’ Group Life insurance (SGLI) policy. TSGLI pays a monetary benefit from $25k to $100k for covered losses that are incurred by the member as a result of a traumatic injury. The physician from USAFSAM/OET, that initially reviewed the applicant’s TSGLI claim, supported his claim for loss of ADLs (dress) due to OTI from 13 May 09 to 23 Jun 09. The applicant was released following surgery with crutches and touchdown weight bearing. With those accommodations, he should reasonably be able to independently bathe. The certifying official denied the claim based on the doctor’s review. The physician from AFPC/DPFDI, reviewed the appeal package and original claim documents and said the following: “I have reviewed the case of the applicant who is appealing the denial of his TSGLI claim.” The applicant was injured May 2009 when he ran over his own right leg while operating an ATV. The applicant suffered a closed fracture of the distal tibia and fibula of the right leg. In the applicant’s appeal he claims he was essentially bed-ridden and helpless for the first month after surgery. Medical record entries are contrary to that claim. On the date of discharge it is noted that the patient was instructed to perform touchdown weight bearing with the use of crutches. It was noted that the applicant had to climb a flight of stairs to get to his apartment and he was quoted as saying he had accomplished stair climbing in physical therapy that day. Initial medical review of the claim the physician indicated that he would allow for the applicant requiring assistance for dressing but not bathing. It is the opinion of this office that that neither was required. Within thirty days, the applicant should have mastered dressing and bathing himself. The claim by the applicant and his mother that he was dependent on his family for essentially all ADLs for many weeks after the surgery is contradicted by the fact that clinic notes from 27 May 09 indicated that the applicant’s orthopedic surgeon instructed him to continue touchdown weight-bearing and to begin quadriceps strengthening exercise and more aggressive stretching. This indicates the applicant was at a much higher functional level than portrayed in the letters submitted as part of the appeal. A complete copy of the AFPC/DPFC evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant’s counsel refutes virtually every point made by the OPR and argues the applicant did meet the requirements for payment for at least 90 days of ADL loss as a result of a traumatic injury. Counsel disputes the language used by the physician “assistance was not medically required,” as it does not say in the TSGLI Procedure Guide that such services are medically required. The applicant needed assistance and not everyone requires the same assistance under the same or similar circumstances. Each case should be measured on its own individual merits as they are all unique. The applicant met the requirement of requiring stand-by assistance (Exhibit E). 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 an error or injustice. We took notice of the applicant’s complete submission, to include his rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-02007 in Executive Session on 16 Apr 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining AFBCMR Docket Number BC-2014-02007 was considered: Exhibit A. DD Form 149, dated 13 Dec 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFC, dated 10 Jun 14. Exhibit D. Letter, SAF/MRBR, dated 4 Aug 14. Exhibit E. Counsel Rebuttal, dated 20 Aug 14.