RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01379

XXXXXXXXXX	COUNSEL: XXXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be given Servicemembers’ Group Life Insurance Traumatic Injury Protection Program (TSGLI) benefits for the inability to perform Activities of Daily Living (ADL) for a period of 15 consecutive days or more after his injury.

APPLICANT’S CONTENTIONS

He was involved in a single vehicle motorcycle collision on 18 May 08 and needed ADL care which were provided by his wife.  He disagrees with the previous decisions to deny TSGLI benefits for 15 days of ADL losses caused by a traumatic brain injury (TBI).  An error and an injustice have resulted in the denials to date.  The requested correction is for his military record to allow $25,000 under the TSGLI Schedule of Losses for TBI resulting in an inability to perform at least two ADLs at 15 consecutive days.  The ADLs include standby assistance for bathing, dressing, eating, toileting, and transferring.  The decisions to date discounted medical records favorable to approval, statements in support of his claim, and additional medical opinions that he provided.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air National Guard (ANG) master sergeant (E-7).

Dated 24 Sep 09, Special Order XXXX indicates the applicant was placed on the Temporary Disability Retired List (TDRL), effective 28 Nov 09, with a compensable percentage for physical disability of 40 percent.

On 27 Nov 09, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged from the ANG in the grade of master sergeant (E-7) after serving 11 years, 8 months, and 16 days of active duty.  He was discharged, with a narrative reason for separation of “Disability, Temporary.”

Dated 27 Jun 11, Special Order XXXX indicates the applicant was removed from the TDRL and discharged by reason of physical disability with entitlement to severance pay.

Dated 13 Jul 18, according to the documentation provided by the applicant, AFPC/DPFC denied his request for TSGLI.  The evaluated medical conditions were loss of speech and hearing, and the inability to perform at least two ADLs due to TBI.  It was noted that these conditions did not meet the TSGLI criteria and that there was no documented evidence these deficiencies were so profound that he could not perform basic ADLs. 

Dated 16 Nov 19, according to documentation provided by the applicant, AFPC/DPFC denied his request for TSGLI.  The evaluated medical condition was the inability to perform at least two ADLs for 15 days due to TBI.  It was noted that the letters provided by the applicant and his wife indicated he required assistance with ADLs during the claim period, but his medical records did not support the need for assistance with ADLs. 

Dated 22 Dec 20, according to documentation provided by the applicant, AFPC/DPFC denied his request for TSGLI.  The evaluated medical condition was the inability to perform at least two ADLs due to TBI.  It was noted that there was no clear documentation that his claimed TBI injury resulted in the loss of the ability to independently perform two or more ADLs for a period of 15 consecutive days or more.

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

AIR FORCE EVALUATION

AFPC/DPFCS recommends denying the application.  The applicant was involved in a single vehicle motorcycle collision on 18 May 08.  Medical evaluation revealed he sustained a TBI with head computed tomography (CT) scan  showing a small subarachnoid hemorrhage over the frontal-parietal region and small hemorrhagic shear injury at the base of the midbrain junction on the right.  Other physical injuries were non-life threatening and did not require surgical intervention.  He was admitted to the Intensive Care Unit (ICU) for observation and serial imaging which revealed stable findings on head CT, and Neurosurgery recommended conservative management.  He was discharged from the ICU and returned home on 20 May 08 (day 3 post trauma) with post-head injury precautions and instructions, regular diet and activity as tolerated, and a prescription for narcotic pain medication.  There is no medical documentation from his hospitalization that he was unable to independently perform ADLs, or of other rehabilitative assessments or arrangements (such as Home Health), or provision of adaptive/assistive medical devices to enable completion of ADLs.   Discharge instructions advised him to follow up with the neurosurgery and trauma team as needed as well as with his primary care provider.  After being discharged from the hospital, the applicant was cared for by his wife who helped him with ADLs, medication management, and took him to medical follow-up appointments with his primary care team.  He and his wife both provided written statements which were carefully read and considered.  It is noted that assistance by his spouse in accomplishing ADLs is caring and commendable but does not necessarily establish such care as a medical requirement. Furthermore, much of the concern detailed in the written statements related primarily to subsequent evaluations and therapies, chronic complaints of memory, concentration difficulties, and distraction by background noise which have affected his life at work and at home well beyond the claimed 15 days post trauma.

Medical record documentation in the immediate post-injury period indicated that the applicant experienced post-concussive (TBI) symptoms such as headache, drowsiness, short-term memory loss, and confusion, but also noted that he made steady progress over the weeks following his traumatic event.  The initial clinic visit on 22 May 08 (day 5 post trauma) recorded a normal general neurologic examination with normal balance, gait, stance, coordination and cerebellar function, and normal mental status and level of consciousness.  There was no discussion addressing his ability to complete ADLs which implied that he would have been reasonably expected to be able to perform self-care with minimal or intermittent assistance from his spouse. The applicant was again seen in follow-up by his primary care team on 30 May 08 (day 13 post trauma) at which time he stated he was “doing much better from last visit” and that he was “going crazy at home and [wanted] to go back to work.”  His wife added that he was “pacing” the house “without direction or anything to do” but was concerned about his ability to drive independently and willing to drive him to work.  It was also recorded that he had been seen in follow-up by the Trauma Center and told that he was progressing normally (Trauma Center documentation not provided).  He was placed on a profile to return to work on a limited basis with 4 hour work days for 30 days (30 May to 30 June 08) which validated normal or near normal independence in ability to function physically, mentally, socially, and in an employment environment.  This documentation in the medical record does not reflect a person injured to the extent that they could not personally care for the essential tasks of daily living for 15 consecutive days.

The initial SGLV 8600 Claim form filed by the applicant was certified by a Department of Veterans Affairs (DVA) medical provider and was signed on 7 April 17 almost 9 years after the traumatic event in May 08.  The medical provider documented that all six ADLs (bathing, incontinence, dressing, eating, toileting, and transferring) required physical assistance, stand-by assistance, and verbal assistance from 18 May to 1 Aug 08 (76 days) noting “due to TBI, spouse provided total care with all ADLs.”  This statement is not substantiated by the medical record.  The certifying medical provider marked that the documentation of claimed loss was based on “I have observed the patient’s loss” which indicated the observance of chronic issues present in 2017, not the claimed acute loss in 2008.  Additionally, the medical provider wrote “His wife cared for him during convalescence, he had much trouble with his memory and completing simple tasks…through treatments he has learned to be more independent but still has trouble focusing and with his memory” and “this will be a permanent concern for him.”  He also noted “currently, his wife is his DVA Level 2 caregiver to provide continued assistance with ADLs” again implying long term conditions.  TSGLI is a short-term financial benefit to assist service members after traumatic injury for qualifying cases; it is not designed for compensation of chronic losses.  It has previously been noted by different TSGLI reviewers that the applicant’s claim for inability to perform at least two ADLs due to TBI does not meet standard TSGLI criteria for this claimed loss.  This reviewer finds the same.  No new supporting documentation has been provided to indicate that the applicant was unable to reasonably complete ADLs in an independent or modified independent manner, as required under program rules, in the 15-day period following his TBI.

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 11 Feb 22 for comment (Exhibit D), and the applicant replied on the same date.  In his response, the applicant’s counsel disagrees with the advisory opinion which fails to state the proper standard for ADL losses claimed.  He was experiencing short-term memory loss, confusion, and extreme headache pain.  He tried to return to work but realized he could not perform his duties due to his short-term memory loss and his inability to focus.  Although there are no black and white specifics noted in his medical records regarding his inability to perform ADLs independently, does not mean it did not exist.  This is a very common problem with these types of TSGLI claims.  A problem that was addressed during a DVA committee meeting on 7 Sep 06, a hearing before the Committee on Veterans’ Affairs United States Senate; HEARING ON WOUNDED WARRIOR INSURANCE: A FIRST LOOK AT A NEW BENEFIT FOR TRAUMATICALLY INJURED SERVICEMEMBERS, addressed ADL losses due to coma and/or TBI as follows: “In cases where there is little or no evidence to support the claim for the loss of ADLs for an extended period, medical personnel must examine treatment records and estimate the length of ADL loss for claim certification making these cases more manpower intensive.”  Therefore, it must be the prerogative of the TSGLI Branch of Service to take into account all evidence to support “the probability” of ADL losses due to TBI.  Such evidence includes the severity of injury, physician/nursing exam findings, imaging reports, patient complaints, professional medical opinions, treating physician opinions, and client/caregiver statements which described the impairments leading to the loss of ADLs and the assistance required to complete them.  In addition, there is no contrary evidence to indicate that the applicant was able to perform his ADLs independently.

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 AFPC/DPFCS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant’s claim for inability to perform at least two ADLs due to TBI does not meet the standard TSGLI criteria for this claimed loss.  No new supporting documentation has been provided to indicate that the applicant was unable to reasonably complete ADLs in an independent or modified independent manner, as required under program rules, in the 15-day period following his TBI.  The letters provided by the applicant and his wife indicating he required assistance with ADLs during the claim period were considered, but his medical records did not support the need for assistance with ADLs.   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-2021-01379 in Executive Session on 21 Mar 22:

, 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 6 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DPFCS, w/atchs, dated 20 Jan 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 11 Feb 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 11 Feb 22.

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.