IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20140019746 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel for submission of his request, statement, and evidence. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the applicant be granted payment under the Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI). 2. Counsel states the TSGLI office has denied the applicant's claim and subsequent appeal for loss of activities of daily living (ADL). The finding is not consistent with the statements submitted and the medical reports. As such, it is requested that the decision be reversed and the requested benefits be provided. The denial of the applicant's request for assistance to perform at least two of his ADL's is unjustified in light of uncontroverted statements of the applicant, his wife, medical personnel, and the evidence in medical records. Assistance with dressing, eating, bathing, and transferring was clearly required in light of his foot nearly being ripped in half. Crutches and adaptive equipment cannot make someone ADL independent with this type of injury. The statements have either been discounted or ignored, which has been ruled as "arbitrary and capricious" decision-making in similar cases by the United States District Court. 3. Counsel provides a compact disc (CD) containing 726 pages of documents pertaining to the applicant's request, denial, and appeal for TSGLI benefits. The items on the CD include the medical records related to the applicant's injury, his wife's 9 April through 10 July 2012 journal documenting her care of the applicant, an SGLV Form 8600 (TSGLI Application), his request for TSGLI benefits (Claim # 11080715), the applicant’s and his counsel's appeals of the denials, appeal denial letters, U.S. District Court for the District of Colorado Civil Action Number 12-cv-01761-MSK-CBS, and two DD Forms 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. The applicant initially enlisted in the Regular Army on 24 April 1990, serving on active duty through 17 April 2000. He had a period of service in the Army National Guard (including a period on active duty from 2 January 2003 through 21 February 2004) before returning to the Regular Army on 26 October 2004. The applicant reenlisted on 24 August 2007 for an indefinite period of service, and was serving as a Special Forces sergeant first class at the time of his accident. 2. On 9 April 2012, the applicant was involved in a motorcycle accident that caused severe injuries to his right foot and ankle as well as bruising to his right side and shoulder. No head, neck, or spinal injuries were reported. 3. On 12 April 2012, surgery was performed at Vanderbilt University Medical Center for an open right foot injury with dislocation of the first, second, third, and fifth tarsometatarsal joints; fracture of the second, third and fourth metatarsal; a cuboid fracture; fractures of the intermediate and lateral cuneiform; a talar head fracture; and traumatic disruptions of multiple toe extensor tendons to the second, third, fourth and fifth toes with superficial traumatic lacerations of the dorsalis pedis artery and deep peroneal nerves. 4. On 14 April 2012, he was discharged to go home with family assistance, but not 24-hour assistance. He had a right lower leg cast and was reported as ambulatory with crutches or a knee walker but with strict right leg non-weight bearing restrictions for 13 weeks. His mobility was rated as: * bed mobility – 6 – independent * sitting to supine – 6 –– independent * supine to sitting – 6 – independent * transfers – stand/pivot – 5 – stand-by * gait –– 5 – stand-by patient ambulated 100 feet with rolling walker * stairs – 0 – not assessed 5. The applicant experienced urinary retention problems requiring medical intervention during the first month post-surgery that was resolved with a single medical treatment. 6. The applicant applied for benefits under the TSGLI on 20 May 2013 for the inability to preform four ADL's. He claimed that he was unable to bathe, dress, do toileting, or transfer without physical assistance and/or stand-by assistance for the 90 day period from 9 April through 17 July 2012. To support this claim he submitted copies of his surgical records, post-operative treatment, and a log/journal of the care provided by his wife. Part B – Medical Professional's Statement on the application states: Injury information – Open right foot fractures/dislocations of multiple tarsometatarsal joints of the first, second, third, fourth, and fifth; fractures of the second, third, fourth, and fifth metatarsal; cuboid fractures of the intermediate and lateral cuneiform; and a fracture of the talar head. There were traumatic disruptions of multiple toe extensor tendons to second, third, fourth, and fifth toes as well as traumatic lacerations of the dorsalis pedis artery, superficial and deep peroneal nerves. Because patient had massive damage to the structure of the right foot he was not able to bear any weight until bones were completely healed. Unable to bathe independently – described as requires assistance from another person to bath more than one part of the body or get in or out of the tub or shower: comment – Non weight bearing restriction and the inability to get cast wet, required complete hands on assistance for the dates shown (04092012–07142012) (month, day year). Unable to dress independently –requires assistance from another person to get and put on clothing, socks, or shoes: comment – Non weight bearing restriction and the inability to get cast wet, required complete hands on assistance for the dates shown especially for pants, socks, and shoes (04092012–07142012). Unable to toilet independently – must use a bedpan or urinal or requires assistance from another person to go to and from the toilet, getting on or off the toilet, cleaning self after toileting, getting off and on clothing to toilet: comment – Non weight bearing restriction and the inability to get cast wet, required complete hands on assistance for the dates shown (04092012–07142012). Unable to transfer independently – requires assistance from another person to into or out of bed or chair comment – on weight bearing restriction and the inability to get cast wet, required complete hands on assistance for the dates shown (04092012–07142012). 7. The attending physician marked at item 7 (Medical Professional's Signature) – "I have not observed the patient's loss, but I have reviewed the patient's medical records." 8. The available records provide no information on any injuries other than to his leg except that at the time of his initial intake he was x-rayed to rule out head, neck, spine, and chest injuries. 9. The Army Human Resources Command (AHRC), Special Compensation Branch (TSGLI), denied his application on 29 July 2013, stating: a. His claim for hospitalization was not approved because his loss did not meet the TSGLI standard of an inpatient hospital stay of 15 or more consecutive days. b. His claim for the inability to perform ADLs due to traumatic injury was not approved because his loss did not meet the standards for TSGLI. c. To qualify, a claimant must have been unable to independently perform at least two ADLs for at least 30 consecutive days. A claimant is considered unable to perform an activity independently only if they require (emphasis added) at least one of the following, without which they would be incapable of performing the task: * physical assistance (hands-on) * stand-by assistance (within arm’s reach) * verbal assistance (must be instructed) d. The inability to perform two or more ADLs for at least 30 days must also have been certified by a medical professional. e. His claim for the inability to perform ADLs due to a traumatic injury was not approved because medical documentation does not support his inability to perform ADLs for 30 days. 10. The applicant requested a reconsideration on 25 October 2013 and provided a log/journal made by his wife recording the care and assistance she provided. 11. The applicant's wife's log/journal of the applicant's recovery and what she did for him commenced on 15 April 2012 and ended on 10 July 2012. The journal provides information on what assistance she provided on a daily basis, including the following summations and specific dates – * For the first week post-surgery, she had to assist the applicant to the toilet; she bathed him, washed his hair, assisted him in dressing, and brought him all of his meals in bed. (She does not elaborate on what she means when she says she had to bathe the applicant.) * On 20 April the applicant attempted to eat at the table but he was unable to complete the meal due to leg pain (Note: the applicant's bedroom is reported as on the second level of their home with the dining room downstairs.) * On 22 April, she had to completely bath him due to pain in both his leg and chest; he was able to put on his shirt but had significant pain doing so due to pain in his ribs * On 24 April, she helped the applicant down the stairs and out to their truck to do some shopping; the applicant was only able to tolerate being in the store for 30 minutes * On the 26th he was able to wash his own hair and back though it caused some pain in his ribcage * On the 27th he had his first check-up;, they removed the first cast, x-rayed his foot and recast him; upon return home he was helped upstairs and slept off and on for the rest of the day * On the 29th, she reports that the applicant was improving, getting up and around for short periods; he tolerated a 30-45 minute shopping trip, he tired easily using the knee scooter * On the 30th she reported he was able to get up and to the bathroom by himself * The log entries for May continue to report that she continued to assist the applicant in bathing of his lower body and assisted him in dressing his lower body on a daily basis; she reported her assistance for his use of the toilet was just stand-by in case he had problems * She recorded continued improvement in the applicant's ability to be more independent and more mobile. * On 6 May he attended church; following church they stopped for lunch * On 11 May, the family went to the movies; following their return the applicant was sick for over an hour * On 16 May, she reports the applicant was improving enough to make his own lunch * On 25 May, they removed his cast, pulled some of the pins, and recast his leg * Throughout June, she reports she continued to help the applicant bathe and dress his lower body * In mid-June, she reports that the applicant was having problems with pain medication withdrawal * When the applicant first started showering is not of record but on 19 June she noted that he didn't even feel like showering that day * His cast was removed on 29 June; from this point on she reports helping him shower and get dressed * On 30 June, she reports having to do less for the applicant with him doing more and more for himself with her only standing by and rendering minimal assistance and support * On 5 July the applicant is reported to have showered and dressed himself * The log ends on 10 July, the last entry noting that the applicant had showered and dressed without any assistance or even having his wife standing by 12. On 6 December 2013, the AHRC-TSGLI branch denied his reconsideration request stating: a. The documentation provided did not indicate that he met the TSGLI standards for loss of ADLs. The medical documentation he submitted did not indicate that his injury rendered him incapable of performing the ADLs of bathing, dressing, toileting, or transferring that are covered by TSGLI standards for 30 consecutive days or greater. b. If the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a cane, crutches, wheelchair, etc.), then the Soldier is considered able to independently perform the activity. c. Notes provided by his spouse were reviewed and considered; however, medical documents indicate that he was capable of performing ADL’s to TSGLI standards within 30 days of his injury. 13. In a 2 April 2014 statement the applicant recounted his accident and postoperative care. He stated that due to his inability to even set his foot on the ground for fear of further damage, he made sure that his wife was present whenever he was bathing, dressing, going to and from the bathroom, and just getting up and moving around. His wife provided some physical assistance but mostly did stand-by assistance with ADLs of bathing, dressing, toileting, and transferring. He described the assistance his wife gave in each of the ADLs specifically stating her assistance in dressing was to help put on his sock and shoe of his uninjured foot. Her assistance with bathing was assisting him get in and out of their deep tub. 14. A 15 August 2014 Appeal Summary summarized the applicant's TSGLI application and appeal history. It stated that the applicant was discharged from the hospital in a short leg splint and given a knee walker and crutches. Two weeks post-surgery he was placed in a short lower cast and directed to remain non-weight bearing. He had been cleared for full weight bearing by day 84 after the injury. In his follow-up medical visits no ADL loss was mentioned. 15. A supporting “1st Physician Write Up” related to the above summary noted the applicant was ambulatory at discharge on crutches or a knee walker and that he had informed the physical therapy provider that he was familiar with compensatory mechanisms for lower extremity non-weight bearing restrictions due to an earlier leg fracture. The physician noted that although the applicant’s foot injury was "complicated," a single limb injury such as that suffered by applicant would not cause significant sustained impairment of ADLs that could not be overcome by adopting adaptive behaviors to accomplish all ADLs in a modified independent manner within 30 days. The physician accepted “without question” applicant’s spouse’s statement that she provided assistance with ADLs for an extended period of time, but noted that the fact that she provided assistance did not mean that the applicant could not have performed the ADLs independently in a modified manner. 16. An 18 August 2014 AHRC letter denied the applicant's request stating: a. The medical documentation does not indicate the injury to his right foot, without additional injuries, would cause a sustained impairment of basic ADLs that could not be overcome in a modified independent manner within 30 days of the injury. Hospital discharge documents state he was to be non-weight-bearing to the right lower extremity and he was given accommodating equipment (standard crutches and knee walker). b. According to the Army TSGLI program guidelines, if the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, and commode) or adaptive behavior, the patient is considered able to independently perform the activity. There are no documented losses of ADLs (eating, bathing, dressing, toileting, transferring, and continence). 17. On 3 September 2014, the applicant's counsel requested a reconsideration. He provided a copy of a District Court decision Number 12-cv-01761-MSK-CBS and contended that the applicant's wife's personal observations and notes showed that the applicant needed assistance in ADLs. The applicant's claim was stronger than any of the persons in the court case. The applicant's medical records show the applicant had suffered an injury that required assistance with his ADL's. The applicant's doctors do not comment upon extent of the need for assistance in ADLs, but they do not refute that such assistance is necessary either. Counsel contends that the applicant's claim is stronger than any of the plaintiffs in the cited court case. 18. The cited court case U.S. District Court for the District of Colorado Civil Action Number 12-cv-01761-MSK-CBS in the case of Mr. F____, Mr. B____, Mr. Z____, Ms. T____, Mr. P____, Mr. Z____, Mr. A____, and Mr. M____ v. the U.S. Army. a. The eight plaintiffs were seeking entitlement to TSGLI benefits for an inability to preform ADL's. Two of the plaintiffs had received a partial grant of benefits but contended they were entitled to longer periods with the other six plaintiffs having been denied any benefits for loss of the ability to perform ADL's. b. The court found in favor of the Army in the cases of Mr. F____, Mr. B____, Mr. Z____, Ms. T____, Mr. P____, Mr. Z____ and upheld the denials of benefits. In the remaining two cases for Mr. A____, and Mr. M____, the denial of benefits was vacated by the court. c. In the case of Mr. A____, the court stated Mr. A____'s wife’s statement was enough to permit the conclusion that Mr. A____ was qualified for benefits. This was not a situation where a medical provider had offered a post hoc opinion that, in general, patients who undergo a particular procedure will be precluded from performing certain ADLs for a specified period of time. The Army appears to routinely discount such opinions unless specifically corroborated in the record, and, as discussed above, this Court cannot say that such a practice is necessarily improper. However, Mr. A____'s wife’s statement was more than a post hoc opinion based on general patterns; it was a statement from a percipient witness about the specific limitations that Mr. A____ actually experienced. Although the statement was somewhat stilted, conclusory, and ambiguous, never quite articulating what the phrase "maximum help" means, it was nevertheless clear and unrebutted evidence that Mr. A____ indeed employed human assistance to perform the various ADLs during the 60-day time period set forth in the statement. The Army either failed to consider this evidence or simply discounted it without explanation, either of which would clearly be arbitrary and capricious action. Because there was no evidence in the record that disputes Mr. A____'s wife’s first-hand account of the assistance she provided to him and the duration of that assistance, the Court further finds that the Army’s determination that Mr. A____ did not satisfy the requirements of TSGLI eligibility during the period of 7 April to 7 June 2010 was arbitrary and capricious. d. In the case of Mr. M____, the court stated the medical record regarding Mr. M____ was quite limited. There are several handwritten doctor’s notes from follow-up consultations, but the handwriting was illegible or the comments so cursory as to be unenlightening. At best, there was an indication on 4 March 2002 that Mr. M____ was "doing well" with a decrease in pain reported, such that his physician saw fit to prescribe the beginning of a physical therapy regimen, but nothing else in the record elaborates on the course of Mr. M____’s recovery. In such circumstances the unrebutted statement from Mr. M____’s wife is dispositive. Although Mr. M____’s own doctors do not comment upon his need for assistance in ADLs, they do not refute that such assistance was necessary either; the record was simply silent on that point. Unlike Mr. Z____'s situation, the Court sees nothing in Mr. M____’s medical records that affirmatively disputes the representations as to the type or duration of assistance that Mr. M____’s wife claims to have provided. Thus, Mr. M____’s wife’s statement stands unrebutted and serves as conclusive proof that Mr. M____ did indeed require the assistance described. Accordingly, the Court finds that the Army’s denial of Mr. M____’s claim was arbitrary and capricious. The Court set aside that denial and directed the Army to certify that Mr. M____ was eligible for benefits based on his inability to perform two or more ADLs from 1 December 2001 to 1 May 2002. 19. On 29 September 2014, AHRC notified the applicant he had exhausted his appeal rights through that office and that further action must be made through the Army Review Boards Agency (ARBA). 20. Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on 11 May 2005, established the TSGLI Program. The TSGLI Program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. TSGLI provides between $25,000.00 and $100,000.00, in 30 day increments, to severely-injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage. Any Soldier who elected SGLI coverage automatically receives TSGLI coverage. 21. The Department of Veterans Affairs (VA) is the agency tasked with final administration of TSGLI. The VA TSGLI website provides the following information in accordance with Title 38, Code of Federal Regulations (CFR), section 9.20, and Public Law 109-13: a. The TSGLI rider provides for payment to Servicemembers who are severely injured and incurred a loss as a result of a traumatic event. b. For the purposes of TSGLI, a traumatic event is defined as the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being. The term "traumatic injury" does not include damage to a living body caused by a mental disorder or a mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance. c. A service member must meet all of the following requirements to be eligible for payment of TSGLI: (1) have been insured by SGLI at the time of the traumatic event, (2) have incurred a scheduled loss and that loss must be a direct result of a traumatic injury, (3) have suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services, (4) have suffered a scheduled loss within 2 years (730 days) of the traumatic injury, and (5) have survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case). d. The TSGLI Schedule of Losses is comprised of two parts. Part I lists specific losses that include items like loss of an extremity, an inability to speak or see, and similar items. Part II addresses the inability to carry out ADL’s due to a loss directly resulting from a traumatic injury other than a brain injury. e. TSGLI claims may be filed for loss of basic ADL if the claimant is completely dependent on someone else to perform two of the six basic ADL for 30 days or more. ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation such as occupational/physical therapy reports, patient discharge summaries, or other pertinent medical documents demonstrating the injury type and duration of ADL loss. In addition to certification from a healthcare provider, applicants must provide additional documentation to substantiate the certification. f. Basic ADL consist of the following self-care tasks: * unable to eat independently * unable to maintain continence independently * unable to toilet independently * unable to transfer independently * unable to dress independently * unable to bathe independently g. The duration of the inability to carry out ADL includes the day of onset of the inability to carry out ADL and the day when the member can once again carry out ADL. The rates of payment are as follows: * at the 30th consecutive day of the inability to carry out ADL – $25,000.00 * at the 60th consecutive day of the inability to carry out ADL – an additional $25,000.00 * at the 90th consecutive day of the inability to carry out ADL – an additional $25,000.00 * at the 120th consecutive day of the inability to carry out ADL – an additional $25,000.00 (a maximum of $100,000.00) h. Each Uniformed Service will certify the eligibility of its own members for traumatic injury protection benefits based upon Public Law 109-13, section 1032, and Title 38, CFR, section 9.20. 22. A service member makes a claim for TSGLI benefits using a standardized form issued by the VA. That form, identified as SGLV Form 8600, contains an initial section ("Part A") that the service member completes, providing certain contact details, bank account information (for benefit payments), and certain information about the injury giving rise to the claim. The second portion of the form ("Part B") is a certification that must be completed by a medical professional, that, among other things, identifies the injury, describes the limitations caused by the injury, and indicates whether the professional’s knowledge of the relevant facts is based on personal observation and treatment of the service member or whether the professional simply reviewed the service member’s medical records. DISCUSSION AND CONCLUSIONS: 1. The applicant sustained a significant injury to his right foot and ankle. He was placed in a lower leg splint/cast and released for convalescence at home with the assistance of his family. The discharge summary reports he was ambulatory on release from the hospital although he was to be non-weight bearing on the right leg until his bones healed. His mobility is shown to be independent in all but two aspects – to stand and pivot and to ambulate with rolling walker, these were noted as stand-by. 2. The hospital reports and follow-up treatment notes are minimal at best, do not record any treatment or complaints for injuries other than to his foot, and are non-supportive in determining what the applicant's actual limitations were and when he was able to perform ADL tasks independently. Therefore, the primary determination of these factors rests with his wife's log entries. 3. The six ADL's are listed: * unable to eat independently * unable to maintain continence independently * unable to toilet independently * unable to transfer independently * unable to dress independently * unable to bathe independently 4. The applicant had assistance performing the various ADLs; however, when he no longer needed that assistance is not specifically documented. Needing and wanting (or accepting) assistance are significantly different things. 5. Further, the regulation states that if the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a cane, crutches, wheelchair, etc.), then the Soldier is considered able to independently perform the activity. 6. The available evidence does not support that the applicant was unable to feed himself or maintain continence. 7. On the issue of independent toileting: a. 21 April (day 15) was the last reported date he needed physical help getting to the bath room, other than when he was sick. The additional notes show that his wife was present in the event the applicant needed help or feared he might fall. b. These reported dates of independent activity show the applicant met the provision to toilet independently prior to post-injury day 30. 8. The applicant was placed in a lower leg cast following surgery. It appears that this type of cast would not impact the motion of his knee or hip on the injured side much less on the uninjured side. 9. On the issue of independent transfer: a. The applicant was reported as going to the store on 24 April (day 18) and a follow-up doctor’s appointment on the 28th (day 22) but needed assistance getting down the stairs and into and out of the truck. b. On 29 April (day 23) he was reported to be walking around with the scooter after having been out to the store for 35-45 minutes. c. On 8 May (day 29) he is reported as being able to get up and down the stairs utilizing crutches. d. These reported activities show the applicant was able to transfer independently prior to post injury day 30. 10. On the issue of independent dressing: a. The reported bruising and pain in his chest that was a portion of his dressing limitations abated prior to day 30. b. In her log his wife states she had to help him dress his lower leg up until day 59. This statement is identical in almost all of her entries and is very vague as to what assistance she provided. c. By the applicant's own statement, the assistance he needed in dressing was for his wife to put his shoe and sock on his uninjured leg. d. The evidence does not support a finding that he was dependent on someone else to dress him, just that it was convenient to have his wife assist him. 11. On the issue of independent bathing: a. The log indicates his wife helped him bathe or take a shower up until day 59. b. By the applicant's own statement the reason he needed help bathing/showering was because they had a deep tub that he needed help getting into and out of. c. There is insufficient evidence to show that the applicant was dependent on someone else to bathe, just that it was convenient to have his wife assist him. 12. The regulations for a claim for loss of basic ADL’s states the claimant must be dependent on someone else to perform at least two of the six basic ADL’s for 30 days or more. By the applicant's own statement his wife's stand-by assistance was based on his fear of doing additional damage to his foot rather than being required to be able perform those ADL functions. 13. The applicant has provided insufficient evidence to conclude that his left foot injuries required stand-by assistance in bathing, dressing, or transferring after his initial period of limitations caused by his foot injuries. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20140019746 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140019746 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1