IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150009911 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150009911 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150009911 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: 1. The applicant requests reconsideration of the Army's decision to deny his Traumatic Service Members’ Group Life Insurance (TSGLI) claim. 2. The applicant states the loss of activities of daily living (ADLs) was not a separate claim of his previous appeal. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 25 December 2007 * a memorandum from Brooke Army Medical Center, Fort Sam Houston, Texas, dated 15 April 2009, subject: Neuropsychological Evaluation of Sergeant (SGT) [Applicant] * SGLV Forms 8600 (Application for TSGLI Benefits), submitted with attached Department of Veterans Affairs (VA) forms and Standard Form (SF) 509 (Progress Notes) * a letter from the U.S. Army Human Resources Command (HRC) TSGLI Program Manager, dated 1 May 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 23 March 2001. He reenlisted on 5 June 2003 for a period of 4 years. 2. He served in Afghanistan from 26 February to 8 December 2006. 3. In September 2006, he sustained multiple injuries when the vehicle he was driving was struck by an improvised explosive device (IED) and a rocket propelled grenade (RPG). He sustained traumatic injuries to his right hand that ultimately required amputation of his ring and small fingers. He was also diagnosed with a cognitive disorder. As a result of these injuries, he was referred to a medical evaluation board (MEB). 4. On 27 September 2007, a physical evaluation board (PEB) found him unfit for the performance of his duties due to: a. Cognitive disorder, not otherwise specified (NOS). Formal neuropsychological tests document impaired attention/concentration, poor conceptualization/abstraction, stowed processing, poor visual-spatial skills, impaired expressive language and reduced reading. Soldier has occupational and social impairment with reduced reliability and productivity due to such symptoms as difficulty in understanding complex commands, impairment of short and long-term memory, impaired abstract thinking and difficulty in establishing and maintaining effective work and social relationships. He was found competent to make legal, medical, or financial decisions. b. Traumatic amputation of the right ring and little finger. Soldier is right-hand dominant. Physical examination showed amputation proximal to the metacarpophalangeal joint with slight tenderness to palpation. Soldier complains of occasional phantom pain. 5. The PEB recommended combined 70 percent disability rating and his placement in the Temporary Disability Retired List (TDRL). He was placed on the TDRL on 25 December 2007. 6. On 15 April 2009, the applicant underwent a neuropsychological evaluation as part of his periodic TDRL reevaluation. The evaluating medical professional diagnosed him with: * cognitive disorder, NOS, with mild, focal impairments * post-traumatic stress disorder (PTSD), chronic * no personality disorder diagnosis * General Medical Conditions: injuries sustained in IED/RPG attack in September 2006 resulting in probable concussion, amputation of two fingers, low back and right leg pain, disturbed sleep 7. The evaluating medical professional also stated the following: [The applicant's] neuropsychological functioning is not so impaired that he requires cognitive rehabilitation at this time. It is recommended, however, that he utilize compensatory strategies to minimize the impact of his identified weaknesses, such as taking additional time and or asking for assistance on tasks involving complex information processing or reasoning, asking clarifying questions and paraphrasing new verbal information, and utilizing calendars, paper/electronic organizers, notebooks, etc. 8. On 27 October 2009, a PEB reevaluated the applicant's disabling medical conditions and recommended his removal from the TDRL and his permanent disability retirement. He was permanently retired on 19 January 2010. 9. During the processing of this case, the HRC TSGLI Program Manager provided a summary of the applicant's case submissions, wherein he stated: * the applicant's initial application for TSGLI was received on or about 30 July 2007 and was denied on or about 6 August 2007 * his application for reconsideration was received on or about 24 August 2007 and was denied on or about 25 September 2007 * his appeal application was received on or about 3 September 2013 and was approved on or about 10 October 2013 10. The summary also states: a. 32-year old right hand dominant male Soldier injured in an RPG attack. He sustained brief loss of consciousness; shrapnel wounds of the right hand treated with multiple debridement, percutaneous pinning, dynamic splint, but ultimately leading to amputation of the 4th and 5th fingers at the metacarpophalangeal (MCP) level in 2007; a right thigh wound treated with exploration and closure; and a left pneumothorax treated with chest tube. At discharge he was non-weight bearing on the right upper extremity, and partial weight bearing on the right lower extremity. Complications included wound infection of the fingers necessitating 2 additional days of inpatient care 21/22 October 2006. The Soldier's initial claim was for amputation of the digits of his right hand. The application requesting reconsideration added a claim for other traumatic injury (OTI) loss of ADLs (bathe, dress, toileting) for 30-plus days. The application for appeal is for ongoing loss of ADLs due to traumatic brain injury (TBI). He was diagnosed with a cognitive disorder prior to medical evaluation board, but there is no record of testing. A neuropsychological evaluation for TDRL dated 15 April 2009 diagnosed cognitive disorder, NOS, with mild, focal impairments that "are not seriously disabling". b. Scheduled losses previously found: hospitalization-OTI (paid $25,000). c. Scheduled losses previously claimed but NOT found: ADL-OTI for 30 days; amputation of the right hand; amputation of fingers of the right hand. d. The Soldier claimed loss of 3 ADLs for > 90 days. There is no indication of TBI symptoms that would impair basic ADLs at any time within two years of injury. There is some indication of instrumental activities of daily living (IADL) impairment, but significant overlap of symptoms of PTSD. e. Recommend disapproval of TBI loss of ADLs. The objective data presented concerning OTI loss of ADLs during the first month after injury is equivocal. The Soldier had 19 days of hospitalization followed by a short re-admission for complications during this 30-day period. Although pre-discharge patient notes suggested that the Soldier was at or near "Modl" in all ADLs, the complicated dominant hand wound with percutaneous pins and dynamic splint, together with the emerging wound infection leaves room for consideration of benefit of the doubt. Outpatient notes during this period describe "difficulty" with several ADLs without commenting on the need for assistance. f. Recommend that benefit of the doubt weigh in favor of the Soldier for approval of OTI loss of ADLs (bathe, dress, toileting) for 30 days. (Soldier paid for OTI/ hospitalization/cannot combine). g. Prior claims adjudicated as denial. Per TSGLI guidelines, the amputation of the Soldier's 4th and 5th fingers at the MCP level does not meet criteria for approval for this claim. 11. The applicant was provided a copy of the HRC TSGLI Program Manager's summary to allow him the opportunity to submit comments or a rebuttal. The applicant did not respond. 12. The applicant provided an SGLV Form 8600, dated 15 April 2015. This form shows: a. Part A (Member's Claim Information and Authorization), item 3 (Traumatic Injury Information), he stated that on or about 22 September 2006, he was in a vehicle convoy towing a disabled vehicle from earlier that day. His vehicle was disabled by an IED followed by RPG fire at which time himself and both passengers were knocked unconscious. He suffered severe shrapnel wounds to his right hand, right inner thigh, shin, and a traumatic brain injury. He was then evacuated and he spent several days in the hospital and then he was released to outpatient which was several months. b. Part B (Medical Professional's Statement), item 3 (Qualifying Losses Suffered by Patient), the medical professional indicated that TBI is the predominant reason the patient is/was unable to perform ADLs. The medical professional also stated that the applicant sustained multiple injuries in the vehicle he was driving when the vehicle he was driving was struck by an IED and RPG while serving in Afghanistan in September 2006. The TBI and also the PTSD that he suffers with has caused difficulty in him performing ADLs. His caregiver at this time, his wife, is responsible for his financials. She daily is having to remind him of bathing, brushing his teeth, helping him with what to wear as far as clothing including having to lay those out for him and then as far as having to remind him to eat and when to eat as in all those areas he will forget to do so unless reminded. His disabilities will continue as there is no treatment for his injuries. c. Part B, item 3: the medical professional indicated the applicant required verbal assistance due to cognitive impairment in the performance of the following ADLs: * unable to bathe independently (caregiver has to remind him of need to bathe) * unable to dress independently (caregiver has to lay out clothing and point out what he needs to be wearing) * unable to eat independently (caregiver has to remind him to eat and nutritionally what he needs to be eating d. Part B, item 5 (Medical Professional's Comments), the medical professional indicated that the applicant's TBI and PTSD are part of a complex of injuries sustained at the same time including amputations to right 4th and 5th digits with changes in that hand related to that, chronic back pain related to the incident, shrapnel injury to the right thigh that has caused chronic problems also. 13. There is no evidence in the applicant's available records, or in the documentation he provided, that shows he suffered from TBI symptoms which impaired his ability to perform ADLs during the 2-year period following the September 2006 incident. REFERENCES: 1. 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 has been designated as the lead agent for implementing the Army TSGLI program. a. 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 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. b. 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 with an additional $1.00 taken out each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package. In addition, there is a retroactive program, in which Soldiers who incurred a qualifying traumatic injury from 7 October 2001 through 30 November 2005, while supporting Operation Iraqi Freedom and Operation Enduring Freedom or under orders in a Combat Zone Tax Exclusion area are covered regardless of whether they elected SGLI coverage or not. c. Soldiers who elect SGLI coverage and incur a qualifying traumatic injury after 1 December 2005 (with the exception of some specific circumstances under which a traumatic injury will not be covered), regardless of their component (Active, Reserve, or National Guard) or the location in which they incurred the injury will be covered by TSGLI. 2. There are some specific circumstances under which a traumatic injury will not be covered by TSGLI. A qualifying traumatic injury is an injury or loss caused by application of external force or violence (a traumatic event) or a condition whose cause can be directly linked to a traumatic event. Traumatic injuries covered may include, but are not limited to the following types of losses: a. total and permanent loss of sight in one or both eyes; b. loss of hand or foot by severance at or above the wrist or ankle; c. total and permanent loss of hearing in one or both ears; d. loss of speech; e. loss of thumb and index finger of the same hand by severance at or above the MCP joints; f. quadriplegia, paraplegia or hemiplegia; g. Third degree or worse burns covering 30 percent of body or 30 percent of the face; h. coma or TBI; or i. other traumatic injuries resulting in the inability to carry out two of the six ADLs, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more (15 days or more in the case of TBIs). 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 documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 3. The TSGLI Procedural Guide further provides that: a. The member's first day of ADL loss due to TBI must occur within 730 days (two years) of the traumatic event in order to receive payment. b. Amputation of fingers: When a member loses four fingers on the same hand or the member loses one thumb, the member is eligible for a TSGLI benefit for amputation of fingers if the member meets the following standard: * Amputation of four fingers on the same hand (not including the thumb) at or above the MCP joint * Amputation of thumb at or above the MCP joint DISCUSSION: 1. The applicant contends that his military records should be corrected by showing he qualifies for TSGLI benefits based on a TBI. 2. The available evidence shows the applicant suffered injuries under circumstances that are qualifying for consideration of benefits under the TSGLI program. 3. The evidence also shows he submitted an application for TSGLI benefits in August 2007, based on the amputation of the 4th and 5th fingers of his right hand. His request was denied because the claimed injury did not meet the criteria for approval of his claim. He submitted a request for reconsideration, which was also denied. 4. He submitted an appeal in 2013 requesting TSGLI benefits based on his period of hospitalization. His request was approved and he was paid $25,000. 5. The applicant submitted an application for TSGLI benefits, dated 15 April 2015, claiming loss of three ADLs due to TBI. However, the TSGLI Procedural Guide provides that in order to qualify for payment, the member's first day of ADL loss due to TBI must occur within 730 days of the traumatic event (September 2006). There is no such evidence in this case. 6. The HRC TSGLI Program Manager recommended approval of OTI loss of ADLs (bathe, dress, toileting) for 30 days; however, TSGLI guidelines clearly provides that the amputation of the Soldiers 4th and 5th fingers at the MCP level does not meet criteria for approval. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009911 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009911 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2