BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20150013633 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: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States District Court, Western District of Kentucky at Louisville. The Court directs the ABCMR to reconsider the complete records from the Army Traumatic Servicemembers' Group Life Insurance (TSGLI) office pertaining to the applicant's TSGLI claim and request for relief, along with any other documentation the Plaintiff (hereinafter referred to as the "applicant") may wish to submit. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in effect, reconsideration of the previous ABCMR decision promulgated in Docket Number AR20120022988, dated 5 November 2013, wherein counsel requested reconsideration of the applicant's TSGLI claim. 2. Counsel states in a 6-page notice of disagreement that the applicant's loss due to injury is supported by sufficient medical information to grant his claim for TSGLI benefits: a. After he injured his shoulder on 24 February 2006, he required assistance with overhead activities, especially dressing and bathing, due to the severity of his shoulder pain. These two activities are qualifying activities of daily living (ADL), and the applicant was unable to perform them without physical assistance from 24 February 2006 to 23 September 2006, a period of at least 120 days. b. After his injury on 24 February 2006, he began taking conservative measures hoping the shoulder would heal itself. He followed doctors' orders and limited his activity while having his arm in a sling. He could not perform the ADL of bathing and dressing. During a physical therapy visit on 13 March 2006, the doctor noted that "he was unable to lift his [left] arm over his head to remove his shirt" (medical records at pages 217-218). c. He continued to require assistance with dressing, especially with donning and doffing shirts. He also required assistance with bathing as he could not lift his arms to wash his head, underarms, his back and other parts of his body. d. The applicant's observing physician supplemented his claim by testifying that he was "unable to bathe independently" and "unable to dress independently" for a period of at least 120 days (Exhibit D). e. Further, he did not continue therapy because the severe pain persisted "without relief from physical therapy" (medical records at page 200). f. On a visit on 18 April 2006, the applicant reported constant, sharp pain that was rated 8 on a scale of 10 (medical records at pages 179-180). g. He could not possibly reach overhead to dress or bathe due to limited motion and extreme pain. As months passed, he complained to doctors about pain with any motion, overhead activities, as well as ADL difficulties. h. He failed all conservative treatment and was not able to care for himself. i. As a direct result of falling off a moving Humvee and onto his shoulder, requiring surgery, the applicant needed assistance with both bathing and dressing for at least 120 consecutive days from the date of the fall, through his surgery and recovery. j. The applicant's attending physician explicitly stated that he was to remain immobile and he would require assistance to dress and bathe (Exhibit D). k. Dr. Dxxxx M. MxXxx supplemented the certification and testified that, the applicant did, in fact, need assistance with bathing and dressing. 3. Counsel provides: * Exhibit A: TSGLI claim procedural history (1 page) * Exhibit B: TSGLI Application (14 pages) * Exhibit C: TSGLI denial letters (7 pages) * Exhibit D: Letters of support (12 pages) * Exhibit E: Medical timeline (6 pages) * Exhibit F: Medical Records (244 pages) * response to an advisory opinion from Madigan Army Medical Center (MAMC), Tacoma, Washington, dated 15 October 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120022988 on 5 November 2013. 2. The United States District Court, Western District of Kentucky at Louisville, directed the ABCMR to reconsider the complete records from the Army TSGLI office pertaining to applicant's TSGLI claim. Therefore, the evidence and arguments previously submitted and counsel's response to a new advisory opinion will be considered by the Board. 3. The applicant enlisted in the Regular Army on 4 November 2004, held military occupational specialty 74D (Chemical Operations Specialist), and attained the rank/grade of private first class (PFC)/E-3. The applicant was a single Soldier who lived in the barracks. 4. The applicant injured his left shoulder in January 2005, during basic combat training, when he caught a large box on his left shoulder. He was diagnosed with a shoulder separation. He completed basic combat and advanced individual training but had to be recycled. He indicated his left shoulder felt all right after it healed but was weaker than it had been before the injury. 5. His record contains a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 24 February 2006, which shows: * he was treated at the 10th Combat Support Hospital (CSH) North on an emergency basis for a "Shoulder Separation Type II" (meaning the acromioclavicular (AC) ligament was completely torn, and the coracoclavicular (CC) ligament was either partially torn or not injured) * the medical notes stated earlier that evening the applicant fell from his truck and landed on his outstretched left arm * he felt pain in the shoulder and was taken to the aid station * he was diagnosed with a dislocated shoulder * he was evacuated to the 10th CSH where radiography photographs (x-rays) were taken of the shoulder that showed no dislocation * he was given medication for pain management and his left arm was placed in a sling * he was sent for a computed tomography (CT) scan of the left shoulder and then returned to duty * he was directed to follow up in the physical therapy/orthopedics clinic the next morning and given a prescription for Percocet 6. His record contains an email transmission with the subject line "Letter of Release," dated 25 February 2006, from his battery commander, Captain (CPT) Kxxx, addressed to Sergeant (SGT) Hxxxxxx. In this email CPT Kxxx informed SGT Hxxxxxx that he was the applicant's Battery Commander. He stated he was aware the applicant required surgery on his shoulder that was only available in Landstuhl, Germany, and he supported the doctor's recommendation to evacuate him to Landstuhl, Germany, in order to have that necessary surgery. 7. His record contains a series of SFs 600 ranging in date from 27 February 2006 to 1 March 2006. During this period he was being treated at the Landstuhl Regional Medical Center in Germany on an outpatient basis. The medical notes show he had severe pain in his left shoulder and an inability to move his left arm without pain; he had swelling in his shoulder, tenderness on palpitation of the AC joint, motion of the shoulder was abnormal, and pain was solicited by motion of the shoulder; he had an x-ray of his left shoulder that showed narrowing of the AC joint and proliferative changes; he was diagnosed with a shoulder separation closed AC joint; the pain in his shoulder was listed as 5/10 (moderate) on the pain scale just after having taken pain medication and there was a plan for possible surgery; and plans were made for him to follow up at the clinic at Fort Campbell, Kentucky, indicating he was going to be medically transported to Blanchfield Army Community Hospital. 8. His record contains a series of SFs 600 ranging in date from 5 March 2006 to 24 March 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, Kentucky, on an outpatient basis. He was seen in the physical therapy and orthopedic clinics during this period. The medical notes show: a. He was seen in the orthopedics clinic for a shoulder separation with closed AC joint on 5 March 2006 and 7 March 2006. He complained of shoulder pain and indicated his pain was 5/10 (moderate) on the pain scale. His shoulder had been in constant pain and he had been in a sling since the injury. His shoulder range of motion (ROM) was limited by his pain. His ROM was listed as 90 degrees passive flexional/abductional only. His x-rays showed what appeared to be an old AC separation with associated distal clavicle fracture that had healed. b. An x-ray study on 7 March 2006 suggested there had been a previous separation and overriding of the distal clavicle at the AC joint; however, the left shoulder joint remained in normal alignment and no fractures were seen. The distal right clavicle was normal. c. He was seen in the physical therapy clinic on 13 and 14 March 2006 and on 22 and 24 March 2006. During the first session, on 13 March 2006, his physical therapist indicated his pain was 4/10 on the pain scale. He was able to lift his left arm over his head to remove his shirt, when doing active range of motion (AROM) for function (emphasis added). He had difficulty/pain with all motion seated but was able to get to 120 degrees flexion and 90 degrees abduction. In the supine position he had full active-assistive range of motion (AAROM) in all directions with pain and scapulohumeral rhythm disruption. The subsequent physical therapy sessions indicated that: * on 14 March 2006, he tolerated the therapy well and indicated his pain was 4/10 on the pain scale at the end of the session * on 22 March 2006, his pain was listed as 7/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 4/10 on the pain scale at the end of the session * on 24 March 2006, his pain was listed as 4/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 5/10 on the pain scale at the end of the session 9. His record contains a series of SFs 600 ranging in date from 3 April 2006 to 27 April 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, Kentucky on an outpatient basis. He had x-rays of his left shoulder, chest, and ribs, and was seen in the physical therapy, physical medicine, deployment health, and rehabilitation and orthopedic clinics during this period. The medical notes and x-rays show: a. On 3 April 2006, he was seen in the orthopedic clinic. He was started in physical therapy with a focus on scapular rhythm and ROM. He indicated he was feeling better, but had times of increased pain. He was tender to palpitation (TTP) about anterior aspect of distal clavicle to AC joint, had a very prominent distal clavicle end that was TTP, and he had swelling from the anterior aspect of distal clavicle. His left shoulder had a ROM of flexion/abduction 170 degrees. b. On 5 April 2006, he was seen in the physical therapy clinic. The medical notes stated that he "had [an] injection to AC joint on Monday [3 April 2006] by Dr. Sxxxxx, which relieved the pain and now [he] just feels stiffness. Will [follow-up] with [orthopedics] in 4 weeks. Prior to injection had 4-5/10 pain without relief from physical therapy… [He is] able to cross over and touch his other shoulder but if [he] lifts [his] elbow then pain [his] pain is reproduced." His ROM for flexion and scaption was recorded as 160 degrees before he felt any stiffness or decreased scapulohumeral rhythm and he had a full internal rotation and external rotation with a pop at the end range. c. On 10 April 2006, he was seen in the physical therapy clinic. His pain was listed as 0/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 2/10 on the pain scale at the end of the session. He was also seen in the physical medicine and rehabilitation clinic. The medical notes stated the applicant was being followed by the physical therapy and orthopedic clinics and had yet to undergo a surgical repair. He recently had a corticosteroid injection and it led to significant improvement in his symptoms. d. On 13 April 2006, he was seen in the physical therapy clinic. His pain was listed as 6/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 5/10 on the pain scale at the end of the session. e. His record contains x-ray reports dated 14 April 2006 and 18 April 2006. The applicant reported falling down 7-10 stairs in the barracks. He stated his "flip flop got caught." He complained of pain in the left shoulder and thoracic chest/ribs. He was seen in the emergency room. (1) The x-ray report of his left shoulder dated 14 April 2006 shows there was an exostosis arising from the underside of the distal left clavicle at the left AC joint. The impression of his shoulder was "Variant in appearance of distal left clavicle. Conceivably there may be some component of new or old soft tissue injury to the AC joint." (2) The x-ray report of his left posterior ribs dated 18 April 2006 stated there was a slightly displaced fracture involving the 7th left rib laterally. f. On 18 April 2006, he was seen in the deployment health clinic. The applicant indicated his "Pain Scale: 8/10 Severe… [on the Left] side of [his upper] back." The medical notes indicate that the applicant fell "down steps on Friday night [14 April 2006] after taking clonazepam, [he was] groggy, [and wanted] to smoke [a] cigarette. [He was] seen in [the emergency room] for fall/shoulder/rib pain." He stated his pain was initially a "constant, sharp 5/10 [on the pain scale; however, it is] worse today [at] 8/10 on the pain scale." The reason his pain was listed as 8/10 on the pain scale that day was because he had been coughing. The coughing caused increased pain. g. On 20 April 2006, he was seen in the physical therapy and orthopedic clinics. His pain was listed as 4/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 4/10 on the pain scale at the end of the session. His AROM was listed as: forward flexion between 80-85 degrees; abduction 80 degrees; and internal rotation - he was able to reach to approximately ribs 8-9 with his left hand with all left upper extremity (LUE) movements. He was tender to palpitation along the intercostal muscles between ribs 7-10 more laterally. The notes from the orthopedic therapy clinic stated that he/surgeons need to let his rib fracture heal before considering surgery. h. On 25 April 2006 and 27 April 2006, he was seen in the physical therapy clinic. On both occasions his pain was listed as 4/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 4/10 on the pain scale at the end of the session. 10. His record contains a series of SFs 600 ranging in date from 3 May 2006 to 31 May 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, KY on an outpatient basis. He had a magnetic resonance imaging (MRI) of his left shoulder, and was seen in the physical therapy, deployment health, and orthopedic clinics during this period. The medical notes and MRI show: a. On 3 May 2006 and 8 May 2006, he was seen in the physical therapy clinic [he was also seen in the orthopedic clinic on 8 May 2006]. On both occasions his pain was listed as 4/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 4/10 on the pain scale at the end of the session. However, it was noted he was "unable to complete all exercises due to pain after the wand and ER on impulse." Pain increased to 6-7/10 on the pain scale and the exercises were discontinued. It was also noted the applicant had reported having increased pain with any forward flexion and he was unable to do the "punch out exercise." The applicant did state he was able to do exercises within the pain free range during the ROM exercises. The orthopedic clinic's notes stated he had been unable to tolerate the physical therapy exercises the previous week; therefore, his exercises had been modified but would continue with therapy. b. On 10 May 2006, he was seen in the physical therapy clinic. His pain was listed as 3/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 0/10 on the pain scale at the end of the session. However, the applicant voiced complaints of pain with all exercises except for low rows. c. On 16 May 2006, he was seen in the physical therapy and deployment health clinics. The medical notes indicated his pain was a 5-6/10 on the pain scale and very painful after any motion above 90 degrees flexion/abduction. Any motion above 90 degrees flexion/abduction created sharp pain under his AC joint. He stated "something shifts" even with passive motion. He had a full passive range of motion (PROM) in supine in all directions, and his AROM in flexion and scaption was 70 degrees with the scapulohumeral rhythm being disrupted. The applicant was in a lot more pain than usual and his physical therapy was put on hold until after surgical intervention for the left shoulder was completed and ribs were healed. · d. On 18 May 2006 he was seen in the orthopedic clinic. The medical notes indicated he had AC joint pain/arthrosis without evidence of a high riding clavicle compared to the right but he had a large spur and unusual anatomy. An MRI scan was ordered and the doctor stated the applicant might benefit from a Mumford procedure. e. On 31 May 2006, he had an MRI scan of his left shoulder. The MRI report/impressions stated the AC joint showed degenerative changes. Shoulder impingement [mechanical compression and/or wear of the rotator cuff tendons] was suggested. There was a small collection of fluid along the superior margins of the AC joint that may have been secondary to degeneration/partial tear. There may have been myxoid degeneration [pathological weakening of connective tissue] involving the superior labra. This signal might have been, secondary to artifact, myxoid degeneration, or a partial tear. 11. His record contains a series of SFs 600 ranging in date from 8 June 2006 to 23 June 2006 and an SF 516 (Operation Report), dated 19 June 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, Kentucky on an outpatient basis. His record contains a radiological report and shows he was seen in the physical therapy, orthopedic, and orthopedic appliance clinics during this period. The medical notes and radiological report show: a. On 8 June 2006, he was seen in the orthopedic clinic. The medical notes state he had previously received injections over the AC joint with an 80 percent (%) temporary improvement. His left shoulder AROM was listed as: 0-90 degrees abduction and 0-90 degrees flexion. His PROM was listed as: 40 degrees abduction; 0-140 degrees flexion; and external rotation 70 degrees. He was TTP over his AC joint. His diagnosis was again listed as a shoulder separation closed AC joint left: shoulder AC joint arthrosis left. The surgeon indicated they were planning for an open Mumford procedure. His radiological report indicated "the lateral clavicle on the left side shows displacement of about two bone widths superiorly in relation to the acromion with deformity appearing chronic in the distal clavicle suggesting old fracture here with some overriding of the AC joint as well. The mild displacement actually appears more prominent without weights than with weights. [The impression was that there was] deformity and an apparent old fracture of the AC joint, without an acute fracture seen." b. On 12 June 2006, he was seen in the orthopedic clinic. The medical notes show the applicant and his doctor discussed treatment options including surgical and non-surgical treatment. The applicant provided his verbal and written consent indicating he wished to proceed with surgery as planned. Later the applicant was seen in the orthopedic appliance clinic to have his shoulder immobilized in a sling in preparation for his upcoming surgery and then in the physical therapy clinic for a pre-operation examination. c. On 19 June 2006, he had an open distal clavicle excision surgery on his left shoulder. The surgeon found significant acromioclavicular joint arthrosis. The surgeon removed 1 centimeter of the distal clavicle after which no significant impingement in the acromioclavicular joint was found. d. On 21 June 2006, he was seen in the physical therapy clinic. A range of motion evaluation was performed on his shoulder. His PROM for flexion/scaption was 45 degrees, and for his external rotation 30 degrees. e. On 23 June 2006, he was seen in the physical therapy clinic. A range of motion evaluation was performed on his shoulder. His PROM for flexion/scaption was 45 degrees, and for his external rotation 0 degrees. 12. His record contains a series of SFs 600 ranging in date from 5 July 2006 to 31 July 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, Kentucky on an outpatient basis. His record contains a radiological report and shows he was seen in the physical therapy, deployment health, orthopedic, and orthopedic appliance clinics during this period. The medical notes and radiological report show: a. On 5 July 2006, he contacted his case manager at the deployment health clinic. He informed his case manager he had a follow up appointment in orthopedic clinic earlier that day. He stated he became nauseated and subsequently vomited while in the bathroom, soiling his shirt. He left the clinic and went back to barracks to change. After he changed he called his case manager to inform them he'd missed his appointment. A new appointment was scheduled for the following day. b. On 7 July 2006, he was seen in the orthopedic clinic for a post-operative follow-up appointment. The medical notes stated he had missed all of his previously scheduled post-operative follow-up appointments. He reported that he was doing well in physical therapy but was working on ROM only. He indicated his pain was 3/10 on the pain scale and became worse with physical therapy. An examination of his shoulder revealed his left shoulder was well healed at the incisions site with a mild prominence at the surgical site. His forward flexion/abduction AROM was listed as 0-120 degrees. c. On 10 July 2006, he was seen in the physical therapy clinic. A range of motion evaluation was performed on his shoulder. His PROM was listed as: flexion/scaption 170 degrees; external rotation 90 degrees; and internal rotation 70 degrees. d. On 14 July 2006, he was seen in the orthopedic clinic. An examination of his shoulder revealed his forward flexion/abduction AROM was listed as 0-170 degrees. Later that day he was seen in the orthopedic appliance clinic for a shoulder support/sling. e. On 19 July 2006, he was seen in the physical therapy clinic. His pain was listed as 0/10 on the pain scale. A range of motion evaluation was performed on his shoulder. His PROM was listed as: flexion/scaption 170 degrees; external rotation 90 degrees; and internal rotation 70 degrees. f. His record contains a radiological report, dated 20 July 2006. The report stated "Neutral external rotation and transcapular views of the left shoulder are present. There is no evidence of fracture or dislocation noted. The sternoclavicular and acromioclavicular joints are intact. The scapula and proximal left humerus are intact. The visualized left upper lung field is normal in appearance. There is no evidence of subcutaneous emphysema or radiopaque foreign body." The impression stated his "Left shoulder series [was] within normal limits." g. On 20 July 2006, he was seen in the physical therapy clinic. The medical notes states he complained of pain in his shoulder rated at 4/10 on the pain scale. He also stated his unit was requiring him to perform outside the limits of his profile and he was doing overhead activities and painting at his unit's directive. h. On 31 July 2006, he was seen in the physical therapy clinic. His pain was listed as 0/10 on the pain scale. A range of motion evaluation was performed on his shoulder. His PROM was listed as: flexion 170 degrees; scaption 160 degrees; external rotation 90 degrees; and internal rotation 70 degrees. 13. His record contains a series of SFs 600 ranging in date from 10 August 2006 to 28 August 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, Kentucky on an outpatient basis. His record contains a radiological report and shows he was seen in the physical therapy, orthopedic, and orthopedic appliance clinics during this period. The medical notes and radiological report show: a. On 10 August 2006, he was seen in the physical therapy clinic. The medical notes show he was seen for a surgical follow-up for his left shoulder. He stated his unit was making him work and he is left handed; therefore, he was lifting things with his left arm. He had been doing wand exercises and was better than before the surgery but his shoulder was still painful. He indicated his pain level was 3/10 on the pain scale and he got a sharp pain over his incision when moving forward. His ROM for AROM was listed as 150 degrees flexion and 20 degrees scaption. His ROM for PROM was listed as external rotation 60 degrees. b. On 15 August 2006, he was seen in the physical therapy clinic. He tolerated the therapy well and his pain was listed as 3/10 (mild) on the pain scale prior to the treatment and 2/10 after the treatment. c. On 17 August 2006, he was seen in the physical therapy clinic. He tolerated the therapy well and his pain was listed as 5/10 (moderate) on the pain scale prior to the treatment and 5/10 after the treatment. d. On 22 August 2006, he was seen in the physical therapy clinic. He reported increased pain, 5-6/10 on the pain scale, following a day of moving all of his belongings out of the barracks himself. The medical notes stated he experienced exquisite TTP on the left AC joint and a bony abnormality was suspected. His record also contains a radiology report, dated 22 August 2006, which shows an x-ray was taken of his bilateral AC Joints with and without weight bearing. The radiologist stated, "Between the views obtained with and without weights, there is no change in the joint space of either AC joint." e. On 23 August 2006, he was seen in the orthopedic appliance clinic for a shoulder support/large sling. f. On 24 August 2006, he was seen in the physical therapy clinic. The medical notes show his pain was listed as 5/10 on the pain scale. He was subsequently seen in the orthopedic clinic, here his pain was listed as 4/10 on the pain scale. He stated his pain was improving but he "was lifting over the weekend and felt a pop and [his] shoulder [is] now very painful." The notes from the orthopedic clinic stated he was experiencing "left shoulder pain with inferior clavicle spike. [They were planning] for 3 [weeks of] pain control to allow shoulder to calm down. If [his shoulder] still [presented] with severe [pain they would] consider revision with [an inferior] spike removal." g. On 28 August 2006, he was seen in the physical therapy clinic. A ROM evaluation was performed. His PROM was listed as: flexion 100 degrees; scaption 100 degrees; internal rotation 50 degrees; and external rotation 90 degrees. 14. His record contains a series of SFs 600 ranging in date from 13 September 2006 to 28 September 2006. His record also contains an SF 516, dated 18 September 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, KY on an outpatient basis. His record contains a radiological report and shows he was seen in the physical therapy, orthopedic, and orthopedic appliance clinics during this period. The medical notes and radiological report show: a. On 13 September 2006, he was seen in the orthopedic clinic. The medical notes indicated his pain level was 4/10 on the pain scale. His doctor stated he had persistent pain despite physical therapy. He also had a residual inferior spike at the distal clavicle. His doctor was planning for an arthroscopy. b. On 15 September 2006, he was seen in the orthopedic clinic for a pre-operation evaluation. His surgeon noted his shoulder pain was 0/10 (pain free) on the pain scale and his active ROM was 0-100 degrees flexion/abduction. His surgeon also noted the imaging studies of his x-ray showed a "residual spike [at the] distal clavicle." The surgeon's notes state he and the applicant "discussed treatment options including surgical and non-surgical treatment… Non-surgical treatment has the potential outcome of continued symptoms at the current level or worsening of symptoms, as well as poor functional ability continuing or worsening in the future. The goal of surgical treatment is to improve functional ability, although this is not guaranteed… The [applicant] has provided his verbal and written consent… [and indicated he] wishes to proceed with surgery as planned." The planned surgery was listed as a "revision Mumford and [subacromial] decompression, open vs scope." After the applicant was seen by his orthopedic surgeon he had a pre-operation appointment in the physical therapy clinic. c. On 18 September 2006, he had an arthroscopic subacromial decompression/revision and distal clavicle excision surgery on his left shoulder to correct his left shoulder subacromial impingement/left shoulder distal clavicle spur. A full diagnostic arthroscopy of the shoulder was performed and the surgeon found the subacromial space showed some inflammatory tissue and the distal clavicle showed a prominent inferior spike of the distal aspect of the remaining clavicle. A soft tissue subacromial decompression was performed/completed. A bony subacromial decompression was performed/completed. A prominent inferior spike was identified and this was shaved until it was co-planed with the remaining portion of the clavicle. After this was completed, the posterior spike of the clavicle that had regrown was also shaved down. The scope was then placed through the anterior portal and it was noted to have excellent distal clavicle excision with no evidence of a prominent anterior spike any further. The small shaver was then brought in and the bony excision was then verified and noted to be adequate. (1) X-rays were taken following the surgery. The radiologists report states, "Compared to 20 July 2006, the distal left clavicle has been surgically excised. AC joint shows good alignment, and is between 1.5 and 2 cm in width." This impression was for the post resection of the distal end of the left clavicle. (2) He was seen in the orthopedic appliance clinic for a shoulder support/sling/immobilizer. d. On 20 September 2006, he was seen in the physical therapy clinic. A range of motion evaluation was performed. His PROM was listed as flexion 80 degrees; scaption 90 degrees; abduction 45 degrees, internal rotation 50 degrees; and external rotation 45 degrees. e. On 25 September 2006, he was seen in the physical therapy clinic. A range of motion evaluation was performed. His PROM was listed as flexion 125 degrees; scaption 150 degrees; internal rotation 60 degrees; and external rotation 90 degrees. f. On 28 September 2006, he was seen in the orthopedic clinic. His pain was listed as 2/10 (mild) on the pain scale. 15. His record contains a series of SFs 600 ranging in date from 23 October 2006 to 30 October 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, KY on an outpatient basis. His record shows he was seen in the deployment health and physical therapy clinics during this period. The medical notes show: a. On 23 October 2006, he was seen in the deployment health clinic. The case manager's notes state the applicant had not been attending physical therapy as recommended. He had to move to different barracks room, again. He reported he had no help, and had to get his girlfriend to help him move his TV and other belongings. He was not anticipating a Medical Evaluation Board (MEB) at that time. b. On 30 October 2006, he was seen in the physical therapy clinic. His pain was listed as 0/10 on the pain scale. Additionally, a range of motion evaluation was performed. His PROM was listed as: flexion 160 degrees; scaption 160 degrees; internal rotation 65 degrees; and external rotation 90 degrees. 16. His record contains an x-ray and radiologist's report dated 1 November 2006 and a series of SFs 600 ranging in date from 6 November 2006 to 21 November 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, KY on an outpatient basis. His records show he was seen in the deployment health and physical therapy clinics during this period. The medical notes and radiological report show: a. On 1 November 2006, he had an x-ray of his left shoulder. The radiological report impression stated, " Grade III [AC] separation [meaning: both the AC and CC ligaments are completely torn; the collarbone and the acromion are completely separated] and likely joint loose body without acute fracture noted." b. On 6 November 2006, he was seen in the physical therapy clinic. The medical notes indicated his pain was 1-2/10 on the pain scale and an MEB had been started. Additionally, his AROM shoulder flexion was listed as 160 - slightly disrupted, and his scaption was 130 degrees with disrupted scapulohumeral rhythm. c. On 15 November 2006, he was seen in the physical therapy clinic. His pain was listed as 4/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 1/10 on the pain scale at the end of the session. d. On 20 November 2006, he was seen in the deployment health clinic. The medical notes stated he was improving markedly from his shoulder surgery and had a marked improvement in his ROM. e. On 21 November 2006, he was seen in the physical therapy clinic. His pain was listed as 2/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 1/10 on the pain scale at the end of the session. 17. His record contains a series of SFs 600 ranging in date from 5 December 2006 to 12 December 2006. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, KY on an outpatient basis. His record shows he was seen in the deployment health and physical therapy clinics during this period. The medical notes show: a. On 5 December 2006, he was seen in the deployment health clinic where he complained of increased shoulder pain since Thursday of last week [30 November 2006]. He indicated the pain had been slowly increasing for the past several days. He stated he did not recall any incident that injured his shoulder further. He states that he had been biking at the gym and had recently started running. He also stated he felt that something was moving within his shoulder when he running. He indicated he had been lifting light weights but that this was no different than his previous regiment. The case manager stated, "Apparently the [applicant] is having some issues with his unit. The unit seems to want him to run more than he would like… [his case manager] reviewed his x-rays with him… [and] let him know that the left shoulder has a free floating distal end of his clavicle that will like move when he runs [and that] this may be uncomfortable but should not cause him any injury. He is free to run at his own pace and distance and should have no serious concerns about his shoulder." b. On 8 December 2006, he was seen in the physical therapy clinic. His pain was listed as 4/10 on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 2/10 on the pain scale at the end of the session. c. On 12 December 2006, he was seen in the physical therapy clinic. His pain was listed as 2/10 (mild) on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 2/10 on the pain scale at the end of the session. 18. His record contains a series of SFs 600 ranging in date from 5 January 2007 to 30 January 2007. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, KY on an outpatient basis. His record shows he was seen in the deployment health and physical therapy clinics during this period. The medical notes show: a. On 5 January 2007, he was seen in the deployment health clinic for a follow up with his case manager. He reported he has no new issues today. He stated the Voltaren medication for pain management was "okay." He rated his pain as a 4/10 on the pain scale. He reported his ROM was "limited" with regard to his affected/left/dominant shoulder. He reported dropping objects and stated "I'm unable to hold anything for very long at all." b. On 9 January 2007, he was seen in the physical therapy clinic. His pain was listed as 2/10 (mild) on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 3/10 on the pain scale at the end of the session. c. On 23 January 2007, he was seen in the physical therapy clinic. The medical notes show his pain was rated as 1-2/10 on the pain scale and his AROM was listed as: flexion 170 degrees - slightly disrupted; and scaption 160 degrees with disrupted scapulohumeral rhythm. d. On 30 January 2007, he was seen in the physical therapy clinic. His pain was listed as 1-2/10 (mild) on the pain scale before the therapy began; he tolerated the therapy well and indicated his pain was 2/10 on the pain scale at the end of the session. 19. His record contains a radiologist's report dated 1 February 2007 and a series of SFs 600 ranging in date from 12 February 2007 to 23 February 2007. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, KY, on an outpatient basis. His record shows he was seen in the deployment health clinic during this period. The medical notes and radiological report show: a. The radiological report impression dated 1 February 2007 stated, "There is a healing or healed fracture site involving the posterior left 7th rib." b. On 12 February 2007, he was seen in the deployment health clinic where he informed his case manager he did some work around the house and this caused him to have pain in his shoulder. He rated his pain as 5/10 on the pain scale. 20. His records contain a MEB Narrative Summary (NARSUM) dated 26 February 2007 wherein it states his chief complaint was left shoulder pain and he was diagnosed with left type III acromioclavicular separation, which was considered medically unacceptable in accordance with Army Regulations 40-501 (Standards of Medical Fitness), chapter 3-41e (1 & 2). The NARSUM also states: a. His medical history revealed that his shoulder pain began in basic combat training in January 2005 when he sustained a grade III shoulder separation at that time and underwent physical therapy. He reinjured his shoulder during a fall while in Iraq in February 2006. He came back to Fort Campbell at that time and underwent physical therapy and continued to have pain and symptoms. Radiographs revealed a type III acromioclavicular separation with hypertrophic calcification of the undersurface of the distal clavicle. He subsequently underwent arthroscopic distal clavicle excision with subacromial decompression on 19 June 2006. He had some improvement of his symptoms; however, despite adequate rehabilitation and being compliant with care, he had persistent left shoulder pain. He then underwent a second revision arthroscopic subacromial decompression with further removal of bone off the undersurface of the distal clavicle on 18 September 2006. Again, he saw some further improvement of his left shoulder symptoms but had continued to have pain in his left shoulder that prevented him from performing his military duties. b. The physical examination and diagnostic data show he had "well-healed surgical scars over his left shoulder. He has a slightly prominent clavicle on the left side compared to the right. His muscular tone is symmetric to the right side. His active range of motion is from 0 to 170 degrees of abduction and 0 to 170 degrees of flexion. He has active external rotation to 70 degrees and internal rotate on to T10. He has 5/5 muscle strength to shoulder abduction, flexion, external and internal rotation compared to the right side; however, several of these muscle testing areas elicit pain. He has tenderness to palpation about the distal clavicle and near some anterior hypertrophic scar over his left shoulder." c. He was unable to perform within his MOS to include carrying and firing a weapon. He could not carry a fighting load for 2 miles. He was unable to construct a fighting position. He was unable to perform push-ups or run secondary to the motion and jarring of his left shoulder. He was not able to lift heavy equipment or carry equipment and can lift a total of 20 pounds. The ADL he was unable to perform secondary to his medical condition included pushing and pulling heavy objects. Other than that, he could perform his ADL. 21. His record contains a radiologist's report of his left shoulder, dated 6 April 2007. During this period he was being treated at the Blanchfield Army Community Hospital, Fort Campbell, KY, on an outpatient basis. The radiological report impression states "A grade III AC separation is suggested. A bone fragment possibly from the glenoid is suggested in the soft tissues in the external rotational view." 22. His record contains a DA Form 3947 (MEB Proceedings) dated 10 April 2007 which shows an MEB found his condition of "Left type III acromioclavicular separation medically unacceptable [in accordance with Army Regulation] 40-501, Chapter 3-41e (1 and 2)" and he was referred to a Physical Evaluation Board (PEB). The applicant concurred with the MEB's findings. 23. His record contains a DA Form 199 (PEB Proceedings), dated 24 April 2007 which shows the PEB found him unfit and recommended a 10% disability rating based on his condition of "chronic pain, left shoulder following separation and surgical procedure. Rated as slight--not requiring daily narcotic therapy/frequent." The PEB also recommended the applicant be separated from military service with severance pay. The applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing. 24. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 4 May 2007 by reason of a disability with severance pay. His records indicate he was still a single Soldier at the time of his discharge. 25. The applicant's medical records are very thorough; however, his records do not contain any entries referring to his inability to bathe or dress himself independently. His records do show that he was extremely conscientious about voicing a number of complaints, concerns, and self-reports. His records contain numerous other entries to include but not limited to: * his complaint of having to move his belongings from barracks room to barracks room without assistance * his complaints of his unit requiring him to conduct certain tasks such as painting and other overhead activities he noted he had to accomplish with his left arm as he was left handed * his complaints that his unit wished him to run more than he wanted to due to a shifting feeling in his shoulder; he was assured by medical personnel that this sensation would not harm him * him informing his case manager he was misusing pain medication and had used illegal drugs recreationally and needed to be enrolled in a substance abuse program * his attempts to quit smoking 26. The applicant's initial SGLV Form 8600 (TSGLI application) is not available for review in this case. 27. On 26 September 2011, the Prudential Office of SGLI informed him the Army had completed the evaluation for his TSGLI claim and that his claim for hospitalization due to other traumatic injuries and for the inability to perform ADL due to other traumatic injuries (other than traumatic brain injury) could not be approved. He was further informed: a. His "claim for hospitalization due to other traumatic injuries was not approved because [his] loss did not meet the TSGLI standard. Under TSGLI hospitalization is defined as an inpatient hospital stay, which lasts for 15 or more consecutive days in a hospital or series of hospitals that is accredited as a hospital under the Hospital Accreditation Program of the Joint Commission on Accreditation of Healthcare Organizations. This includes: Combat Support Hospitals; Air Force Theater Hospitals; and Navy Hospital Ships." b. "The number of days includes transportation time from the site of the injury to the hospital, the day of admission and the day of discharge." c. His "claim for the inability to perform activities of daily living (ADL) due to other traumatic injuries (other than traumatic brain injury) was not approved because [his] loss did not meet the standards for TSGLI. To qualify, a claimant must have been unable to independently perform at least two activities of ADL for at least 30 consecutive days. 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 (hands-on); stand-by assistance (within arm's reach); and/or verbal assistance (must be instructed). 28. His record contains an undated letter from Dr. Dxxxx M. MxXxx, the family physician who completed Part B of the applicant's TSGLI application form. Dr. Dxxxx M. MxXxx stated: a. On 26 September 2011, the applicant was sent a letter denying his TSGLI benefits. He (Dr. Dxxxx M. MxXxx) filled out the form SGLV 8600 for the applicant and signed the form showing he did indeed meet all requirements for this benefit. He (Dr. Dxxxx M. MxXxx) stated he would be more than happy to go over the form again. On page 11 the box "Other traumatic injury'' is checked. The applicant was injured in Iraq and due to the severity of his injury he was placed in a sling. This was in February of 2006. He was placed in this sling until June of 2006 when he had one of two shoulder surgeries. During this period he was "unable to perform the 2 required daily activities," which far exceeds the required 30 consecutive days. Therefore, he met the requirement. The 2 activities that he was unable to perform due to the severity of his injury were: (1) "Unable to bathe independently," which he (Dr. Dxxxx M. MxXxx) marked/checked on page 11. He indicated that the applicant needed hands-on assistance, which was given to him by his significant other, performing the following bathing duties: washing his back, holding up his left arm by the elbow and washing under arm and armpit area, and washing lower legs. Also, she was always within arm's reach, which he marked. The applicant met this requirement because he needed assistance for more than the required one body part. (2) "Unable to dress independently," which he (Dr. Dxxxx M. MxXxx) marked/checked on page 12. He needed hands on assistance, which was given to him by his significant other and fellow battle buddies, for the following dressing duties: socks, boots, tying the boots, help getting left arm through t-shirt, help getting left arm through his BDU top, and help with his belt and buttoning his pants. He met this requirement because he needed assistance from others to get dressed. 29. The applicant submitted an undated letter to the Office of Service Members' Group Life Insurance, wherein he stated he was sent a denial letter for his TSGLI on 26 September 2011 and was appealing the decision because he felt he met the requirements for the benefits. He stated he had enclosed a letter from the doctor that signed and verified all the required documents [presumably the above undated letter from Dr. Dxxxx M. MxXxx]. He stated he met all the conditions that had been certified by a medical professional and was sending another copy of the required forms Dr. Dxxxx M. MxXxx signed. 30. His record contains an SGLV Form 8600, dated 26 June 2012. This form shows in: a. Part A (Member's Claim Information and Authorization), page 4 of the application was completed by the applicant. The applicant stated in Part A, item 3 (Traumatic Injury Information), that on 23 February 2006, while at the range outside Camp Taji, Iraq, he was mounting a weapon (240 B) on top of a 5-ton flatbed when the vehicle was struck by another 5-ton. He fell over 10 feet down and landed on his shoulder separating it and was immediately taken to medical and checked out by doctors. He was placed in a sling up until his first surgery. b. Part B (Medical Professional's Statement) (page 11 of the application) was completed by Dxxxx M. MxXxx, MD, Family Physician, Clinical Director. (1) In Part B, item 2 (Reason for Inpatient Hospitalization) [page 11 of the application], Dr. Dxxxx M. MxXxx indicated/stated the predominant reason the applicant was hospitalized was for "other traumatic injury." Dr. Dxxxx M. MxXxx also indicated the applicant was transported to/admitted to the first hospital on 23 February 2006 and discharged from the last hospital on 4 March 2006. (2) In Part B, item 3 (Qualifying Losses Suffered by Patient) (page 11 of the application), Dr. Dxxxx M. MxXxx states the predominant reason the applicant was unable to independently perform ADL was due to "other traumatic injury." Dr. Dxxxx M. MxXxx also stated the applicant was injured in February 2006 and had surgery in June 2006 and September 2006. He "still needs help getting dressed, bathing, and with back pain." Dr. Dxxxx M. MxXxx further stated/indicated: (a) The applicant was unable to perform the ADL of bathing independently because he needed physical assistance (hands-on) and stand-by assistance (within arm's reach) and indicated/stated he needed assistance with bathing his back, legs, and underarms. This form states a patient is UNABLE to bathe independently if he or she requires assistance from another person to bathe (including sponge bath) more than one part of the body or get in or out of the tub or shower. (Page 11 of the application.) (b) The applicant was unable to perform the ADL of dressing independently because he needed physical assistance (hands-on) and stand-by assistance (within arm's reach) and indicated/stated he needed assistance with dressing because he needed assistance putting on shirts, pants, belt, socks, and shoes. This form states a patient is UNABLE dress independently if he/she requires assistance tram another person to get and put on clothing, socks or shoes. (Page 12 of the application.) c. In Part B, item 5 (Medical Professional's Comments) (page 13 of the application), Dr. Dxxxx M. MxXxx stated the applicant "had onset of disability [February] 2006 until after surgery [September 2006]. Had fall on active duty service in Iraq on training session." d. In Part B, item 7 (Medical Professional's Signature) (page 13 of the application), Dr. Dxxxx M. MxXxx checked a box which stated "I have not observed the patient's loss but I have reviewed the patient's medical records." Dr. Dxxxx M. MxXxx further acknowledged by affixing his signature to this document that, "This Medical Professional's Statement is based upon my examination of the patient and/or, a review of pertinent medical evidence. I understand the patient and/or I may be asked to provide supporting documentation to validate eligibility under law." Dr. Dxxxx M. MxXxx dated his portion of the form on 8 August 2011. 31. On 23 August 2012, the TSGLI Branch, U.S. Army Human Resources Command (HRC), denied his claim for TSGLI and informed him his claim was not approved because he was "not hospitalized inpatient for 15 consecutive days or more. Also, the medical documentation [he] submitted did not indicate that [his] shoulder injury would make [him] incapable of performing the ADL of bathing or dressing that are covered by TSGLI standards." He was further informed he had the right to apply to the ABCMR if he disagreed with the decision. 32. On 15 October 2012, the applicant applied to the ABCMR to appeal HRC's denial of his request for TSGLI. He was represented by counsel. 33. ABCMR Docket Number AR20120022988, dated 5 November 2013, denied the applicant's/counsel's requested relief on the basis that: a. "The applicant's counsel contends, in effect, that his TSGLI claim should be reconsidered because the applicant's shoulder injury and resultant loss of ADL for 120 consecutive days entitles him to the $100,000.00 TSGLI benefit. Furthermore, the applicant does not now make a hospitalization claim." b. "The evidence clearly shows the applicant suffered a traumatic injury by falling off a humvee in 2007. This injury caused pain that subsequently required outpatient arthroscopic surgery." c. "There is evidence showing that he initially applied in 2011 and his claim was reconsidered in 2011 and appealed in 2012. His requests were denied because he failed to provide adequate medical documentation showing that his injury resulted in a qualifying loss or the inability to carry out two of the six ADL." d. "The applicant has not provided sufficient documentation to support his contention that his TSGLI claims were improperly disallowed. Neither the available records nor the medical documentation the applicant provided establish a basis to support his request." 34. On 18 August 2015, the U.S District Court, Western District of Kentucky at Louisville, ordered that the ABCMR reconsider the complete records from the Army TSGLI office pertaining to applicant's TSGLI claim and request for relief, along with any other documentation the applicant or his counsel wished to submit. 35. During the processing of this case, an advisory opinion was issued by the Madigan Army Medical Center, Tacoma, WA, on 21 September 2015. The advisory official, a medical doctor and the Medical Evaluation Board Physician Supervisor, Dr. Pxxx Wxxxxxxxx, stated: a. The ABCMR requested an opinion as to whether the applicant was hospitalized for 15 or more consecutive days; has medical documentation pertaining to his shoulder injury which show/indicate he was incapable of bathing and dressing; and has documentation in his medical records which would substantiate a claim for TSGLI entitlement. b. Hospitalization: The medical records show the applicant was evaluated and treated at the 10th CSH in Iraq on about 24 February 2006; evacuated to Landstuhl Army Medical Center in Germany on or about 26 February 2006, then onward to Blanchfield Army Hospital, Fort Campbell, KY, on or about 4 March 2006. The encounters are listed as outpatient encounters. Even if he had been hospitalized for the entire time period, the time would have been less than 10 days. c. ADL: (1) In January 2005, the applicant suffered a left shoulder AC ligament separation while on active duty at Fort Leonard Wood, MO, during training. On 18 January 2005, the physical therapist wrote: "Self-reliant in usual daily activities. Difficulty dressing. Putting on upper garment can be done independently." By 9 March 2005, he had progressed: "Able to perform minimum of pushups to pass the Army Physical Fitness Test without difficulty." On 14 March 2005: "No difficulty dressing." He completed his course of physical therapy and improved sufficiently to recycle and pass his military occupational specialty qualifying training. (2) On 24 February 2006, a 10th CHS combat theater note documents recurrence of his left shoulder pain after a fall from a truck. X-rays were negative for dislocation, and he was placed in a sling. On 27 February 2006, an orthopedist diagnosed closed left shoulder AC separation and treated him with weekly physical therapy and Percocet. A 13 March 2006 medical note by Physical Therapy at Blanchfield Army Hospital states: "He was able to lift his left arm over his head to remove his shirt. When doing AROM for function he had difficulty, pain with all motion seated, but able to get to 120 flexion, 90 abduction." A 10 April 2006 Physical Medicine evaluation of rehabilitation showed "normal appearance" of shoulders, with "full range of motion." Two months later, on 8 June 2006, his left shoulder condition had worsened due to arthritic changes at the AC joint with a decrease from his prior 170 degrees of flexion/abduction, down to 90 degrees (active range of motion/AROM) and 140 degrees (passive range of motion/PROM), and on 12 June 2006, he was counseled by orthopedics for a Mumford procedure (distal clavicle resection), which was performed the following week. A 5 July 2006 note by Dr. Wxxxx Dxxxxxx documents that on 26 June 2006, the applicant "became nauseated and vomited on his shirt, so he went home to change." A 14 July 2006 orthopedic exam notes left shoulder flexion and abduction AROM of 170 degrees. The Soldier's left shoulder range of motion appears to have decreased over the next month, and by 24 August 2006, flexion and abduction were noted as 100 degrees. On 15 September 2006, he was counseled by an orthopedist for Mumford revision surgery, which was performed on 18 September 2006. A 1 November 2006 post-op follow-up by orthopedics demonstrated left shoulder AROM for flexion and abduction as 0-110 degrees and PROM of 0-180 degrees. 23 January 2007 shoulder active flexion was 170 degrees with nominal internal and external rotation. (3) On 6 April 2007, the applicant was lifting his TA-50 (military equipment) when he felt a "pop" and felt a bony protrusion of his clavicle under the skin. An x-ray showed grade III AC separation, and he was placed in a sling. A 23 April 2007 physical therapy note documents left shoulder AROM as flexion 180, abduction 140, external rotation 90, and internal rotation 80 degrees. d. Comments: (1) Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-12b(1) states that Soldiers with shoulder joint ranges of motion that do not exceed forward flexion to 90 degrees or abduction to 90 degrees shall be referred to a Medical Evaluation Board. There were brief periods in the health record when AROM of the left shoulder was documented at 90 degrees or less, but the vast majority of exams showed functional ranges of motion of the left shoulder at or above 100 degrees for flexion and abduction, which should be sufficient for ADL. (2) Disabled Soldiers with arm amputations are usually able to dress themselves and bathe. (3) The applicant's functioning left elbow and hand presumably would give him an advantage over someone without a left upper extremity. e. Conclusions: (1) The applicant did not appear to require hospitalization for more than 15 days. (2) The applicant's health record documents the ability to dress himself, albeit with temporary difficulty following his acute injuries and surgeries. The applicant's medical record does not appear to support a claim that he was unable to bathe or shower as a result of his injury (other than routine wound precautions for the first week postoperatively, following his surgeries), which would preclude a TSGLI payment, regardless of his ability to dress himself, since inability to perform 2 activities of daily living are required for payment. (3) A review of approximately 200 medical notes did not demonstrate documentation that would substantiate a claim for a TSGLI entitlement. f. Recommendation: That the applicant file a compensation and pension claim with the Department of Veterans Affairs, along with a claim for healthcare benefits, if he has not already done so. 36. On 15 October 2015, the applicant's counsel responded to the advisory opinion. Counsel stated/argued: a. The current advisory opinion and previous denial by the ABCMR ignores the opinions furnished by his treating physician, Dr. Dxxxxx MxXxx, who unambiguously certified the applicant's ADL loss for 120 days. His treating physician is in the best position to make such an assessment. b. The preponderance of evidence (which was also seemingly ignored) favors a full award of benefits in this case. Rather, the advisory opinion inexplicably attempts to compare the applicant's circumstance with that of a person who has lost a limb. This comparison is irrelevant to the facts of the applicant's case, leading to an arbitrary denial of benefits to the applicant. c. Furthermore, the applicant claimed an inability to perform ADL without assistance – meaning that he could not do so independently in a safe manner. Certainly it is not the wish of the ABCMR for service members to perform ADL in a dangerous manner and increase the risk of re-injury when recovering from a traumatic injury. d. The applicant reasserts the arguments, facts, and evidence outlined in the letter to the ABCMR dated 10 December 2012 in support of his claim. Assuming the claim continues to be denied (after a second round at the ABCMR), the applicant intends to press his claim to hearing and will seek attorney fees and costs in addition to the underlying benefits for his wrongfully denied claim. 37. Public Law 109-13 established the TSGLI Program. The TSGLI Program was established by Congress to provide financial relief to Soldiers and their families after suffering a traumatic injury. TSGLI payments are designed to help traumatically injured service members and their families with financial burdens associated with recovering from a severe 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. To be eligible for payment of TSGLI, service members must meet all of the following requirements: * must be insured by SGLI when the service member experiences a traumatic event * must incur a scheduled loss and that loss must be a direct result of a traumatic injury * must have suffered the traumatic injury prior to midnight of the day the service member is separated from the uniformed services * must suffer a scheduled loss within 2 years (730 days) of the traumatic injury * must survive for a period of not less than 7 full days from the date of the traumatic injury 38. A qualifying traumatic injury is an injury or loss caused by a traumatic event. The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount. a. Part I loss includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, and facial reconstruction. b. Part II loss includes traumatic injuries resulting in the inability to perform at least two ADL for 30 or more consecutive days and hospitalization due to a traumatic injury and other traumatic injury resulting in the inability to carry out two of the six ADL, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform out two of the six 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 documents demonstrating the injury type and duration of ADL loss. While TSGLI claims won't be approved without certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 39. 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. In the applicant's initial request to the ABCMR, counsel stated that after the applicant injured his shoulder on 24 February 2006, he required assistance with overhead activities, especially dressing and bathing, due to the severity of his shoulder pain. These two activities are qualifying ADL, and counsel stated the applicant was unable to perform them without physical assistance from 24 February 2006 to 23 September 2006, a period of at least 120 days. 2. Counsel stated, "After his injury on 24 February 2006, he began with taking conservative measures hoping the shoulder would heal itself. He followed doctors' orders and limited his activity while having his arm in a sling. He could not perform ADL of bathing and dressing. During a physical therapy visit on 13 March 2006, the doctor noted on pages 217-218 of his medical records that he was unable to lift his [left] arm over his head to remove his shirt… He could not possibly reach overhead to dress or bathe due to limited motion and extreme pain. As months passed, he complained to doctors about pain with any motion, overhead activities, as well as difficulties with ADL." a. The SF 600 referred to by counsel as pages 217-218 is dated 13 March 2006 and shows the applicant was seen in the physical therapy clinic. This session was the applicant's first physical therapy session. b. The physical therapist, a physician, stated the applicant's pain was 4/10 on the pain scale. The physician also stated, "he was able to lift his left arm over his head to remove his shirt, when doing AROM for function, he had difficulty, pain with all motion seated but able to get to 120 [degrees] flexion and 90 [degrees] abduction" (emphasis added). 3. Counsel stated, "He continued to require assistance with dressing, especially with donning and doffing shirts. He also required assistance with bathing as he could not lift his arms to wash his head, underarms, his back and other parts of his body." a. Counsel has indicated that the applicant was unable to perform the ADL of dressing and bathing without physical assistance from 24 February 2006 to 23 September 2006; however, the medical records from this period make no note of his inability to perform these ADL. In fact, in over 200 pages of medical records, there are no entries indicating the applicant mentioned difficulty with dressing or bathing. b. The applicant's records are very thorough. His personal concerns, issues, and medical/medical-related problems are thoroughly documented. These documents do indicate the applicant complained of pain with motion; however, the records also go so far as to show his unit directed him to do, and he did in fact, conduct overhead activities such as painting, that he was able to move his belongings to new barracks rooms on several occasions without assistance, though on one occasion he did mention he had to contact his girlfriend to come and help him move his television. His records also show he complained that his unit was making him run more than he liked and he did not wish to continue running because he felt something moving in his shoulder. He only resumed this activity after he was assured the sensation was normal and would not further injure his shoulder. The applicant also indicates he performed housework. (1) Noteworthy also is what’s missing from applicant’s medical records and application. Nowhere in the medical records are there any allusions to the third parties (girlfriend, fellow Soldiers) who, according to applicant, were required to help him dress and bathe on a daily basis. Physical therapy professionals presumably would be quite curious to know whether, and in what manner, non-professionals were helping a patient to dress and bathe himself at home. Yet those discussions are entirely absent from applicant’s records. Nor does the applicant bolster his application with statements from the individuals who helped him with these activities. (2) The absence of a record of those discussions is odd inasmuch as the applicant did voice concerns to medical professionals that he needed his girlfriend’s help to move his television set (see 23 October 2006 Chronological Record of Medical Care) and felt increased shoulder pain due to "moving all of his belongings out of the barracks himself" (see 22 August 2006 Chronological Record of Medical Care). c. The applicant was a single male Soldier living in the barracks who was being treated on an outpatient basis. This evidence indicates that he would not have been treated on an outpatient basis if medical officials felt or documented he was unable to dress or bathe himself independently. Additionally, as a single male Soldier, his girlfriend would not have been permitted to live with him in his barracks room. Further, if his girlfriend was not permitted to live in his barracks room, it is impossible to argue that she was always within arm's reach or that she was bathing and dressing him every day if he was incapable of completing these activities without assistance. 4. Counsel stated, "The applicant's observing physician supplemented his claim by testifying that he was "unable to bathe independently" and "unable to dress independently" for a period of at least 120 days" and "The applicant's attending physician explicitly stated that he was to remain immobile and that he would require assistance to dress and bathe." Finally, in response to the advisory opinion, counsel stated, "The current advisory opinion and previous denial by the ABCMR ignores the opinions furnished by his treating physician, Dr. Dxxxxx MxXxx who unambiguously certified applicant's ADL loss for 120 days. His treating physician is in the best position to make such an assessment." a. Part B of the applicant's TSGLI application was completed by Dr. Dxxxx M. MxXxx, a family physician. Part B, item 7, of the TSGLI application shows that Dr. Dxxxx M. MxXxx checked a box which stated "I have not observed the patient's loss but I have reviewed the patient's medical records." b. Dr. Dxxxx M. MxXxx is a family physician. He does not specialize in orthopedic medicine, nor is he a physical therapist or an orthopedic surgeon. c. The TSGLI application indicates Dr. Dxxxx M. MxXxx reviewed the applicant's medical records. However, it is unclear whether or not Dr. Dxxxx M. MxXxx was able to access or view all of the pertinent medical records or any of his military medical records. d. The evidence of record also shows that, not only did Dr. Dxxxx M. MxXxx not observe the applicant's claimed loss (i.e., he did not observe applicant’s inability to perform the ADL), Dr. Dxxxx M. MxXxx was also not involved in the applicant's treatment or therapy during the period for which the applicant is claiming ADL loss. e. The evidence of record implies that Dr. Dxxxx M. MxXxx made his determination based upon the medical records available to him and the applicant's assertions that he was unable to perform two of the six ADL. However, nowhere in Dr. Dxxxx M. MxXxx’s statement does he confirm he reviewed all of the applicant’s copious military medical records before concluding that the applicant was unable to perform two ADL, bathing and dressing, without assistance. Additionally, Dr. Dxxxx M. MxXxx fails to recite the evidence upon which he makes his conclusory assessments. As such, Dr. Dxxxx M. MxXxx 's findings appear to be based primarily upon the applicant’s self-reporting. f. Dr. Dxxxx M. MxXxx's opinions and statements have not been ignored. However, as he is neither an orthopedic surgeon nor a physical therapist, and he was not involved in the applicant's medical care or treatment during the period of claimed loss, it is highly doubtful he is in the best position to offer a thorough opinion as to whether or not the applicant suffered from two ADL losses for a period of 120 days or more. g. The applicant was treated by a team of medical personnel who specialized in orthopedic medicine, surgery, and physical therapy, and not once did these individuals, who were best placed to make a determination, ever indicate that he was incapable of performing any of his ADL. In fact, a note in his NARSUM stated, "activities of daily living that the service member is unable to perform secondary to his medical condition include pushing and pulling heavy objects. Other than that, he can perform his activities of daily living". (Emphasis added) 5. Counsel stated, "Further, he did not continue therapy because the severe pain persisted without relief from physical therapy." a. The document counsel refers to as page 200 of the medical records is an SF 600 dated 5 April 2006, which shows he was seen in the physical therapy clinic. b. Counsel incorrectly stated/took a quote out of context by stating "he did not continue therapy because the severe pain persisted 'without relief from physical therapy.'" These medical notes actually state: (1) He "had [an] injection to AC joint on Monday [3 April 2006] by Dr. Sxxxxx which relieved the pain and now [he] just feels stiffness… Prior to injection [he] had 4-5/10 pain without relief from physical therapy…" (2) "[He was] able to cross over and touch his other shoulder but if [he] lifts [his] elbow then [his] pain is reproduced" (emphasis added). His ROM for flexion and scaption was recorded as 160 degrees before he felt any stiffness or decreased scapulohumeral rhythm and he had a full internal rotation and external rotation. 6. Counsel stated, "On a visit on 18 April 2006, the applicant reported constant, sharp pain which was rated 8/10." a. Counsel seems to have taken another quote out of context and has failed to qualify the statement with supporting facts or proper context. The medical records from the period 14 April 2006 through 18 April 2006 show that on 14 April 2006, the applicant was groggy after taking clonazepam but he wanted to smoke a cigarette. He fell down 7-10 stairs and broke a rib because his flip-flop got stuck. Counsel failed to mention that the pain was in the applicant's back and ribcage and that the reason his pain was listed as 8/10 on the pain scale that day was because he had been coughing. The coughing caused increased pain due to the fact that he had fallen and broken a rib. b. The medical record counsel refers to is an SF 600 dated 18 April 2006 which shows he was seen in the deployment health clinic. The medical notes stated, "Pain Scale: 8/10 Severe… [on the Left] side of [his upper] back." The medical notes indicate that the applicant fell "down steps on Friday night [14 April 2006] after taking clonazepam, [he was] groggy, [and wanted] to smoke [a] cigarette. [He was] seen in [the emergency room] for fall/shoulder/rib pain." He stated his pain was initially a "constant, sharp 5/10 [on the pain scale; however, it is] worse today [at] 8/10 on the pain scale." 7. Counsel stated, "He had failed all conservative treatment and was not able to care for himself." a. The evidence of record does show that the applicant required two surgeries on his shoulder and that physical therapy alone did not correct the problems in his shoulder. b. The evidence of record and medical records do not contain any entries by medical personnel, during the period of claimed loss, indicating the applicant was unable to care for himself. 8. Counsel stated, "The preponderance of evidence (which was also seemingly ignored) favors a full award of benefits in this case. Rather, the advisory opinion inexplicably attempts to compare the applicant's circumstance with that of a person who has lost a limb. This comparison is irrelevant to the facts of the applicant's case, leading to an arbitrary denial of benefits to the applicant." Counsel also stated "the applicant claimed an inability to perform ADL without assistance – meaning that he could not do so independently in a safe manner. Certainly it is not the wish of the ABCMR for service members to perform ADL in a dangerous manner and increase the risk of re-injury when recovering from a traumatic injury." a. The only evidence in the record indicating the applicant was unable to perform the two claimed ADL for 120 days or more are the statements provided by Dr. Dxxxx M. MxXxx. These statements and arguments have already been addressed. b. The evidence of record clearly shows that the applicant had pain in his shoulder with movement. However, this does not mean he was unable to move his arm, or that he was unable to move his wrist, hand, or fingers. The applicant felt pain during physical therapy, yet he was able to safely perform many of the tasks. Healing from an injury and building strength is a painful process. c. There is insufficient evidence to conclude that the applicant required assistance to bathe himself. Furthermore, devices are readily available, such as a loofa on a stick, with which the applicant could have used, one-armed, to bathe his underarms, neck, back, and legs independently. Additionally, if he was able to complete physical therapy, paint, conduct overhead activities, and move his belongings from barracks room to barracks room, lift weights, and go running, there is no reason to believe he could not bathe himself. In this regard, the evidence of record does not support the applicant’s contention. 9. More persuasive than Dr. Dxxxx M. MxXxx’s opinion is the 21 September 2015 advisory opinion provided by Dr. Pxxx Wxxxxxxxx of the Madigan Army Medical Center, Tacoma, WA, on 21 September 2015. Whereas Dr. Dxxxx M. MxXxx, perhaps understandably, relies primarily on applicant’s uncorroborated and mostly post hoc descriptions of his bathing and dressing difficulties, Dr. Pxxx Wxxxxxxxx bases his opinion on medical records created contemporaneously with the many visits applicant made to medical professionals for diagnosis, surgery, treatment and physical therapy. a. After assessing the applicant's medical records, Dr. Pxxx Wxxxxxxxx opined that for the period between January 2005 and March 2005, applicant displayed no inability to dress or bathe himself. As for the period post-dating applicant’s 24 February 2006 injury suffered in Iraq, Dr. Pxxx Wxxxxxxxx quotes liberally from the applicant’s treatment notes to support his opinion that nothing in applicant’s records indicates an inability to dress or bathe between 24 February 2006 and 13 March 2006. During that time, the applicant’s physical therapist noted he "was able to lift arm over his head and remove his shirt." On 10 April 2006, his physical therapist noted a "full range of motion" for his left shoulder. Thus, within 20 days of injuring his shoulder, the applicant was nonetheless able to remove his shirt; within seven weeks of the injury, he enjoyed full range of motion in his shoulder. b. Although Dr. Pxxx Wxxxxxxxx acknowledges brief periods during which applicant’s range of motion was less than 90 degrees, it seems clear that applicant never was inhibited from dressing or bathing himself without assistance for any period of significant duration. Dr. Pxxx Wxxxxxxxx notes the significance of applicant’s fully functioning left elbow and fully functioning left hand which, along with a fully functioning right arm, surely would have helped his efforts to dress and bathe the vast majority of his body the vast majority of the time. Based on the medical records, Dr. Pxxx Wxxxxxxxx concluded that although "[t]here were brief periods in the health record when AROM of the left shoulder was documented at 90 degrees or less," the "vast majority of exams showed functional ranges of motion of the left shoulder at or above 90 degrees for flexion and abduction, which should be sufficient for activities of daily living." Thus, Dr. Pxxx Wxxxxxxxx’s opinion, based on medical notes made contemporaneously with applicant’s diagnosis, treatment, and therapy, is more convincing than Dr. Dxxxx M. MxXxx’s opinion, which appears based on applicant’s uncorroborated and after-the-fact descriptions of his bathing and dressing challenges. c. Dr. Wxxxxxxxx’s opinion noted that Army Regulation 40-501, chapter 3-12b(1), states that Soldiers with shoulder joint ranges of motion that do not exceed forward flexion to 90 degrees or abduction to 90 degrees shall be referred to a Medical Evaluation Board, meaning that a Soldier would be considered unfit for military service if their range of motion did not exceed forward flexion to 90 degrees or abduction to 90 degrees. Furthermore, Dr. Pxxx Wxxxxxxxx’s conclusions support the determination by the HRC TSGLI office and in ABCMR Docket Number AR20120022988, dated 5 November 2013, in that: (1) The applicant did not appear to require hospitalization for more than 15 days. (2) The applicant's health record documents the ability to dress himself, albeit with temporary difficulty following his acute injuries and surgeries. The applicant's medical record does not appear to support a claim that he was unable to bathe or shower as a result of his injury (other than routine wound precautions for the first week postoperatively, following his surgeries), which would preclude a TSGLI payment, regardless of his ability to dress himself, since inability to perform two ADL is required for payment. (3) A review of approximately 200 medical notes did not demonstrate documentation that would substantiate a claim for a TSGLI entitlement. 10. The evidence of record shows the applicant readily voiced his concerns about his injuries and treatments with medical personnel, his case manager, and physicians who treated him. However, his records for the period claimed fail to show he ever complained of or mentioned being unable to independently bathe or dress himself. Furthermore, there is no medical documentation to show his treating orthopedic specialists, orthopedic surgeon, or physical therapist found him unable to complete these two ADL independently. 11. Thus, the evidence provided by the applicant and his counsel does not, unfortunately, support a conclusion that the applicant’s situation matches the requirements necessary under the TSGLI program to demonstrate an inability to perform at least two ADL for the requisite time period. This determination is based on evidence that includes, but is not limited to: (1) the absence of any statements from individuals who could corroborate with first-hand knowledge that they, or others, were needed to assist applicant to bathe and dress; (2) the absence in his medical records of any contemporaneous complaints about dressing or bathing challenges; and (3) the persuasiveness and specificity of Dr. Pxxx Wxxxxxxxx’s opinion as contrasted with the generalized nature of Dr. Dxxxx M. MxXxx’s assessment. Based on this evidence, and the entirety of the record, the applicant has failed to carry his burden to demonstrate, by a preponderance of evidence, that he is entitled to TSGLI benefits. 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 AR20120022988, dated 5 November 2013. ___________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) AR20150013633 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150013633 21 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1