RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00064

XXXXXXXXXXX	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be authorized entitlement to Servicemembers’ Group Life Insurance Traumatic Injury Protection program (TSGLI) for 30 days of Activities of Daily Living (ADL), and $25,000 for his traumatic injury that occurred on 5 Jun 17.

APPLICANT’S CONTENTIONS

The decisions to deny the applicant’s TSGLI request have discounted medical records favorable to approval, statements in support of the claim, and medical opinions provided.  The TSGLI reviewer has minimized the applicant’s injuries and fails to recognize ADLs were severely impacted in light of the records and statements at issue, and but for assistance, the claimed ADLs could not be accomplished independently.  The adjudicators are in error in their assessment of ADL independence in the records, and fail to consider the claimed assistance, especially stand-by assistance, which includes bathing, toileting, and transferring.  Under the benefit-of-the-doubt, and preponderance-of-evidence standards, at least 30 days of assistance should be granted for at least two of the seven claimed combinations of types of ADL loses. 

In support of his appeal, the applicant’s counsel provides the initial claim for TSGLI Benefits signed 10 Jan 18, and the TSGLI Appeal request signed 15 Oct 18, which includes the supporting documentation and a detailed description of why the claim should be approved.    

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air National Guard (ANG) staff sergeant (E-5). 

On 10 Jan 18, according to an Application for TSGLI Benefits, the applicant’s legal counsel requested benefits under an “Other Traumatic Injury” claim, stating that the applicant required physical assistance (hands-on) and stand-by assistance to help him bathe, dress and toilet for a period of time starting 5 Jun 17 and ending 17 Jul 17.  The traumatic injury that the request was based on occurred on 5 Jun 17, when the applicant was “severely injured when he was run over and crushed by a semi-tractor trailer while working underneath. [The applicant] suffered from an intraluminal tear in the thoracoabdominal aorta (descending at T10-T11 level), Grade V liver and spleen lacerations (spleen noted to be “shattered”), multiple left adrenal lacerations with hemorrhage, bilateral kidney infarcts from a left renal vascular injury, left pneumothorax, left transverse process fracture of L2-L3, multiple left rib fractures and abrasions to include a severe circumferential abrasion to his left shoulder/arm and dorsum of right arm and bilateral flank areas.”

On 18 Sep 18, a letter from NGB/A1PS, disapproved the applicant’s TSGLI claim and states that while the applicant may have still required some stand-by assistance when he first went home, the medical records show that such a requirement would not have extended to 30 days post injury.  

On 15 Oct 18, according to a TSGLI Appeal Request Form, provided by the applicant, his legal counsel appealed an 18 Sept 18 decision to deny the applicants TSGLI benefits request.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY/GUIDANCE

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.  The insurance is a rider to the Servicemembers’ Group Life Insurance (SGLI) policy.  TSGLI provides coverage to any Service member insured under SGLI who sustains a serious traumatic injury that results in certain prescribed losses.  TSGLI provides between $25,000 and $100,000 of coverage depending on the loss incurred.  The Code of Federal Regulations, Title 38 Part 9.20 prescribes each service will certify its members for traumatic protection benefits.  The services will certify whether the member was insured under SGLI at the time of the traumatic injury and whether or not the member sustained a qualifying loss.

In accordance with TSGLI Procedures Guide Version 2.48; January 2021:

The regulations that govern the TSGLI Program state that in order to qualify, a claimant must have been unable to independently perform at least two ADLs for at least 30 consecutive days.   ADLs are routine self-care activities that a person normally performs every day without needing assistance. There are six basic ADLs: eating, bathing, dressing, toileting, transferring (moving in and out of bed or chair) and continence (managing or controlling bladder and bowel functions).  The claimant is considered unable to perform an activity independently only if he or she requires at least one of the following, without which they would be incapable of performing the task:

- 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 this physical, stand-by, or verbal assistance, the patient would be incapable of performing the task.

AIR FORCE EVALUATION

NGB/A1PS, recommends denying the application and provides a detailed explanation of the events, the applicant’s injuries and his recovery.  Contrary to the TSGLI claim form, the applicant was never assessed to be "very weak and de-conditioned" and certainly not at the time he was assessed for his suitability for inpatient rehabilitation.  In addition, the records from the time of discharge and the initial weeks of outpatient follow-up make no mention of the applicant experiencing "excruciating pain.”  Normally, an injury to one limb would not result in a medical requirement for assistance with ADLs because an individual should be able to master adaptive behaviors or adaptive devices within 30 days following injury.  While this case is different, as the applicant also sustained chest and abdominal injuries, records from the applicant’s assessment for inpatient rehabilitation support medical review board opinion.  In this regard, based on what is actually recorded in the medical record rather than the descriptive terms employed by the independent nurse reviewer, NGB/A1PS believes that by the 30-day threshold, the applicant did not have a medical requirement for assistance with two or more ADLs.  In fact, the applicant was doing so well in performing ADLs with the chest tube still in place; they didn't even make a recommendation to send him home with adaptive devices.  Furthermore, the medical practitioners specifically commented on the fact that he had no pelvic injury and no injury to his legs or right arm when they concluded he was not in need of inpatient rehabilitation services.

In summary, A1PS found that while the applicant may have required some stand-by assistance from his spouse when he first arrived home from the hospital, his medical records indicate such a requirement would not have extended to 30 days post injury.  If the applicant was still receiving regular assistance from his spouse for bathing, dressing or any other ADL, it was for convenience and not out of medical necessity.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 30 Mar 21 for comment (Exhibit D), and the applicant’s counsel replied on 8 Apr 21.  In his response, the applicants counsel contended that there are two issues with the advisory opinion.  First, the definition of ADL losses is not correctly listed and the TSGLI Application and Procedures Guide have minimal requirements for the ADL tasks that require assistance.   In this regard, the applicant required both physical and standby assistance with bathing, dressing, and toileting.  Second, statements from the applicant, his caregiver, and the independent nurse reviewer are not addressed or considered. Being such, the original claim and request for reconsideration are enclosed for the Board’s de novo review and consideration.

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.   After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of NGB/A1PS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Records show the applicant did not require ADL assistance for 30 or more days, and concurs with the rationale that if the applicant did use regular assistance for bathing, dressing or any other ADL, it was for convenience and not out of medical necessity.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2021-00064 in Executive Session on 18 Aug 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 30 Nov 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/A1PS, w/atchs, dated 30 Mar 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 7 Apr 21.
Exhibit E:	Applicant’s response, dated 8 Apr 21.

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