IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150008274 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 requests reconsideration of his application for benefits under the Traumatic Servicemembers' Group Life Insurance (TSGLI) based on an inability to perform of two or more Activities of Daily Living (ADL). He defers to his counsel for additional argument. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the applicant be awarded TSGLI benefits for an 85 - day period following his motor vehicle accident in December 2007 2. Counsel states: The Army Review Board Agency (ARBA) committed legal error by failing to explain the basis for its decision. An agency violated the Administrative Procedure Act ("APA") when it failed to include in its adjudicatory decision a meaningful "statement of findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record." Although neither the APA nor the regulations require the Army to make specific findings of fact, or to give an exhaustive explanation of its decision, the absence of an explanation affords no basis for a court to review the agency decision. Relatedly, an agency violated the APA when it failed to include in its adjudicatory decision a meaningful "statement of findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record." In such cases, an "agency's failure to state its reasoning or to adopt an intelligible decisional standard is so glaring that [the court] can declare with confidence that the agency action was arbitrary and capricious. This decision making requirement applies to and has been enforced in the context of TSGLI applications. In the present matter, ARBA acknowledged: The applicant qualifies for TSGLI benefits because he was unable to bathe or dress independently for 60 days, as required by the TSGLI statute and accompanying regulations. However, the healthcare provider is required to certify the loss of ADLs in Part B of the claim form; and, the ADL loss must be substantiated by appropriate medical documentation in the individual's records. However, without identifying any deficiencies in Dr. F____'s certification in Part B of the claim form and the evidence submitted with (the applicant's) original application, or the evidence proffered in subsequent appeals, ARBA simply affirmed the TSGLI Appeals Board decision. ARBA offered no reasoning for its judgment beyond the generic, conclusory refrain: Neither the available records nor the medical documentation the applicant provided establish a convincing basis to support his request. The documentation (the applicant) submitted with his original application, and in all subsequent appeals for reconsideration, confirm the ADL losses he experienced as a result of his injury. From the outset, (the applicant) supported his claims with signed statements from his treating physician, Dr. F____, which (the applicant) provided in Part B of the Application for TSGLI Benefits. In these statements, Dr. F____ affirms that (the applicant) was "unable to bathe [without] help; had difficulty also getting in and out of [the] shower/tub," and that he "needed assistance donning and doffing clothing" from October 14, 2008 through January 8, 2009. This time period extends 25 days past the 60 days required to establish ADL loss. In addition to Dr. F____'s statements in Part B of the TSGLI application, (the applicant) provided dozens of pages of medical records detailing his surgery, recovery, and physical therapy. Not one item of the aforementioned evidence has yet been rebutted or questioned by the agency in the last five years that this claim has been pending. Additionally, ARBA's failure to offer an explanation for its decision prejudices (the applicant) by depriving him of the notice and opportunity to remedy his application. Without an explanation from the board that identifies alleged deficiencies in the evidence, (the applicant) should not be expected to prognosticate what additional documents he should submit in addition to the extensive medical records already provided. ARBA did not address the substance of the evidence (the applicant) offered with his application and his appeals, thereby committing legal error. The applicant and his counsel therefore petition the Board of Military Corrections to vacate ARBA 's decision so that this Board may review (the applicant) and issue a decision on the basis of the evidence. ARBA wrongly denied (the applicant's) application for TSGLI benefits. By failing to provide an explanation of the basis for its decision that the items in evidence are unpersuasive and inadequate to substantiate SFC Williams TSGLI claim, ARBA acted arbitrarily, contrary to the applicable statutory framework. A decision on (the applicant's) TSGLI application can only be made on the basis of the evidence, and it must be accompanied by a meaningful explanation of the Board's reasoning. Therefore, the applicant and his counsel strongly urge this Board to adjudicate (the applicant’s TSGLI application and grant TSGLI benefits in the amount of $50,000. 3. Counsel provides an additional statement from Dr. F____. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130011894, on 30 April 2014. 2. The applicant, an Army National Guard sergeant first class (SFC), was involved in an automobile accident on 7 December 2007. 3. On 31 December 2007, the applicant was initially evaluated and diagnosed with neck, thoracic spine, and lumbar spine pain with radiculopathy. 4. On 14 February 2008, the applicant reported that he had improved 60 to 70 percent overall. However, he experienced increased pain in his neck and mid-back due to lifting 200 pound guns the previous day. 5. On 1 May 2008, the applicant underwent an orthopedic consultation with a chief complaint of left shoulder pain. He stated he injured his left shoulder in an automobile accident on 7 December 2007 and has continued to experience anterolateral left shoulder pain with overhead activity or if he rolls over on it while sleeping. The physician reviewed a magnetic resonance image (MRI) and opined that the applicant was bothered by rotator cuff tendonitis of his shoulder. Subacromial corticosteroid injection was recommended and accepted by the applicant. He had a follow-up injection on 21 August 2008. 6. On 25 September 2008, the applicant was again evaluated for left shoulder impingement syndrome. The physician noted he had maintained active range of motion and reported discomfort at the extremes of forward elevation. His overall range of motion was fairly well maintained. 7. On 14 October 2008, the applicant underwent surgery of his left shoulder. He tolerated the procedure well and was advised to keep his arm in a sling. He was told not to do any pushing, pulling, or lifting with his left upper extremity. He was to start physical therapy as soon as possible for passive range of motion of his left shoulder. 8. On 8 January 2009, 3 months post–surgery, the applicant's physician examined his shoulder. He had a well maintained shoulder motion and did not have any pain on palpation but was weak regarding forward elevation and abduction. He was progressing slowly and was recommended to continue with physical therapy for strengthening. 9. On 19 February 2009, the applicant's physician determined that he had full active motion and strength of his left shoulder and released him from care. He was able to participate and return to his activities without restrictions. 10. In applicant's wife's affidavit 19 April 2012, she stated that following the applicant's surgery she was required to assist the applicant for at least 60 days with getting dressed and with bathing. 11. Army Human Resources Command (AHRC), Special Compensations Branch (TSGLI) reviewed and denied the applicant's request as follows – * Initial application on or about 23 June 2010 * Initial application denied on 9 July 2010 * Application reconsidered on 6 April 2011 * Reconsideration denied on 19 April 2011 * Appeal received on or about 1 May 2012 * Appeal denied on 30 May 2012 In their denial AHRC stated: The applicant, a 33-year old right-handed male Soldier was injured in a car accident, sustaining whiplash and left shoulder injury. He was later diagnosed with impingement of the left shoulder and underwent surgery. He claimed a loss of ADLs for 87 days. The injury pattern an isolated, uncomplicated single limb injury in an otherwise uninjured Soldier is generally insufficient justification for payment under #20 of Schedule of Payments for Traumatic Losses. It is [a] reasonable expectation that a Soldier is capable of adopting, within 30 days of injury or surgery, adaptive behaviors to accomplish all activities of daily living in a modified independent manner in coping with a single limb injury. 12. In a 31 March 2015 statement, Dr. F____ stated: I performed left shoulder surgery on (the applicant) on October 14, 2008 for left shoulder pain as a result of continued left shoulder pain since being involved in an automobile accident in December of 2007. The left shoulder surgery involved a diagnostic arthroscopy with mini open acromioplasty done on October 14, 2008. I instructed [the applicant] to modify his activities in the postoperative period to allow for healing. He was instructed to keep his left upper extremity in a sling with his arm at his side for the first 6 weeks postoperatively. [The applicant] participated in outpatient physical therapy during this time for passive range of motion. Thereafter he was instructed to avoid any pushing pulling or lifting with his left upper extremity and repetitive overhead work for 3+ months postoperatively. [The applicant] required help with his activities of daily living including bathing, dressing, and meal preparation from October 14, 2008 through January 8, 2009 secondary to the above restrictions. 13. 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 May 11, 2005, established the TSGLI program. U.S. Army Combat Related Special Compensation (CRSC) has been designated as the lead agent for implementing the Army 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 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. 14. The Department of Veterans Affairs (VA) is the agency tasked with final administration of TSGLI. The VA "The Traumatic Injury Protection Under Servicemembers’ Group Life Insurance (TSGLI) A Procedural Guide" provides the following information and guidelines: a. The Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) program is an automatic provision under Servicemembers’ Group Life Insurance (SGLI). TSGLI provides for payment to Servicemembers who are severely injured (on or off duty) as the result of a traumatic event and suffer a loss that qualifies for payment under TSGLI. TSGLI is designed to help traumatically injured Servicemembers and their families with financial burdens associated with recovering from a severe injury. TSGLI payments range from $25,000 to $100,000 based on the qualifying loss suffered. The benefit is paid to the member, someone acting on the member’s behalf if the member is incompetent, or the members’ SGLI beneficiary if the member is deceased. TSGLI coverage was added to SGLI policies effective December 1, 2005. All members covered under SGLI who experience a traumatic event that directly results in a traumatic injury causing scheduled loss defined under the program are eligible for TSGLI payment. b. 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. c. ADLS are routine self-care activities that a person normally performs every day without needing assistance. There are six basic ADL: eating, bathing, dressing, toileting, transferring (moving in and out of bed or chair), and continence (managing or controlling bladder and bowel functions). A member is considered to have a loss of ADL if the member REQUIRES someone else to perform 2 of the 6 ADLs for 30 days or more assistance. If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.), the patient is considered able to independently perform the activity. d. 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. e. In determining if a member has a loss of ADL, 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 the activity. f. 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 this physical, stand-by, and/or verbal assistance, the patient would be incapable of performing the task g. The table below is used to help to determine whether a member has lost the ability to perform a particular ADL. UNABLE to bathe independently to bathe more than one part of the body (via tub bath or sponge bath) or get in or out of the tub or shower UNABLE to dress independently to get and put on clothing, socks or shoes (may have help tying shoes) UNABLE to eat independently to get food from plate to mouth, or take liquid nourishment from a straw or cup. The patient is also unable to eat independently if he/she is fed intravenously or by a feeding tube. UNABLE to toilet independently to go to and from the toilet, get on and off the toilet, clean self after toileting, or get clothing off and on before and after toileting. The patient is also unable to toilet independently if he/she must use a bedpan or urinal. UNABLE to transfer independently to move into or out of a bed or chair 15. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant sustained whiplash (neck, thoracic spine, and lumbar spine pain with radiculopathy) and a left shoulder injury on 7 December 2007. 2. Initially his condition improved; however, he either reinjured or aggravated the shoulder injury in February 2008 which resulted in surgical intervention on 14 October 2008. He tolerated the procedure well and was advised to keep his arm in a sling. He was not to do any pushing, pulling, or lifting with his left upper extremity. He was to start physical therapy as soon as possible for passive range of motion of his left shoulder. 3. In his statement of 31 March 2015, 6 years after the period in question, Dr. F____ stated the applicant required help with the ADL's of bathing, dressing, and meal preparation from 14 October 2008 through 8 January 2009. He justifies this statement because he instructed the applicant to keep his left upper extremity in a sling with his arm at his side for the first 6 weeks postoperatively. And then the applicant participated in outpatient physical therapy for passive range of motion. Thereafter, he was instructed to avoid any pushing, pulling, or lifting with his left upper extremity and repetitive overhead work for 3+ months postoperatively. 4. The applicant has not provided and the available record does not contain the physical therapy records to show his actual physical limitations and recovery progress. 5. The applicant's surgery was to his left, non-dominant shoulder. The simple requirement to wear a sling does not demonstrate that the applicant was unable to develop adaptive behavior to accomplish all self-bathing or dressing. 6. While the applicant's wife attests that she assisted her husband in dressing and bathing there is no empirical evidence that her assistance was required. The available evidence does not support a finding that the applicant was dependent on someone else to dress him or assist in his bathing, just that it was more convenient to have his wife assist him. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130011894, dated 30 April 2014. ________________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) AR20150008274 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008274 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1