IN THE CASE OF: BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150016371 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: 2 March 2017 DOCKET NUMBER: AR20150016371 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: 2 March 2017 DOCKET NUMBER: AR20150016371 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, approval of the applicant’s Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim. 2. Counsel also requests a teleconference with the Army Board for Correction of Military Records (ABCMR) if a review of the records is determined not enough to warrant a reversal of the decisions. If and once applicable, counsel asks that the Board schedule a time and date for this conference to take place. 3. Counsel states, in effect: a. The TSGLI office denied payment of the applicant’s claim and subsequent appeals for facial reconstruction. The findings are not consistent with the submitted statements and medical reports. Further, the TSGLI office has used an explanation that deviates from the sole legal standard set forth in the TSGLI Procedures Guide, the relevant portion of which is attached as “Exhibit A.” As such, the underlying decisions were in error and are an injustice, and it is requested that the decision be reversed and the requested benefits be provided. b. The denial of the applicant’s TSGLI claim is unjustified in light of statements and evidence in the medical records, which demonstrate he suffered avulsions, gaps of bones and tissues, and facial reconstruction surgeries that met the TSGLI criteria. The statements and medical records have been ignored or unjustifiably discounted, which makes the findings an injustice and error. 4. Counsel provides a compact disc containing a military police report, medical records, medication lists, pictures, and the following: * Power of Attorney, dated 22 January 2014 * application for TSGLI Benefits, dated 9 May 2014 * letter from counsel to the U.S. Army Human Resources Command (HRC) regarding a request for reconsideration, dated 20 June 2014 * letter from HRC, Office of the Adjutant General, to counsel and the applicant denying his request for reconsideration, dated 1 September 2015 * letter from the TSGLI Program Physician Consultant to the TSGLI Program Certifying Official, undated * three pages from the TSGLI Procedures Guide pertaining to facial reconstruction CONSIDERATION OF EVIDENCE: 1. The applicant had prior service in the U.S. Marine Corps. He enlisted in the Regular Army on 5 May 2009. 2. A DA Form 2823 (Sworn Statement), dated 21 January 2012, shows there was a sworn statement by unknown person (redacted) that was intended to clarify and/or elaborate aspects of the investigation not elsewhere covered by statements and/or documents. The document stated, “On January 21, 2012, at approximately 0305, [a patrol was] dispatched…to an assault that happened off post. We arrived on scene at 0314, along with [two other patrols]. Came in contact with [applicant]. He was intoxicated with injuries to his face, swollen lip, bruised right ribs, and groin area. Injuries were not life threatening. Nobody else was at the [residence]" The applicant was transported to a hospital. 3. A DA Form 3975 (Military Police Report), dated 2 February 2012, shows at 0304 hours, on 21 January 2012, the military police were notified of an assault at the applicant’s home. 4. University Medical Center of El Paso Emergency Documentation, dated 21 January 2012, shows that emergency medical services (EMS) arrived at the applicant’s home and found him unresponsive due to an apparent assault which resulted in major trauma to the face. The location of the injury was to the anterior face with symptoms of pain, bleeding, and redness. The degree of bleeding and pain was severe. Risk factors that contributed to possible complications consisted of alcohol abuse. 5. University Medical Center of El Paso Surgical Documentation, dated 24 January 2012, shows the applicant had facial reconstruction surgery with no complications. 6. On 12 February 2013, the applicant was placed on the temporary disability retired list (TDRL). 7. On 9 May 2014, the applicant’s counsel submitted an initial TSGLI application for compensation for other traumatic injury (OTI) hospitalization. On 11 June 2014, the request was denied. It appears that a request for reconsideration was submitted on or about 2 July 2014, but it was denied on or about 21 October 2014. 8. The applicant’s counsel appealed the decision and submitted additional information. On 1 September 2015, HRC sent a letter to the applicant’s counsel regarding the appeal. The letter stated that, after reviewing more than 1,300 pages of medical documents and supporting documents from the applicant, they were unable to overturn the previous adjudication concerning losses associated with facial reconstruction. The letter explained why the claim was not approved as follows: Awards for facial reconstruction can be confusing because the medical community’s definition of facial reconstruction is completely different from the definition spelled out in the [TSGLI] program guidelines. The medical community describes it as surgery performed to restore facial features that have been disfigured or damaged by abnormal development, trauma, or other medical procedures. However, program guidance reads, “In order to meet the standard for facial reconstruction, the member must experience a penetrating facial injury (avulsion) and lose bone or tissue that without replacement would leave a 'gap' in the area of injury (discontinuity defect).” This typically involves bone, cartilage, and/or skin graft surgeries. We did not find that [the applicant's] injuries required these types of procedures. With this explanation in mind, [the applicant’s] medical record does show that grafts were used to repair both orbital floor fractures, which is the type of injury eligible by program guidelines. However, the orbital floor is approximately 25% of the periorbital area, and the facial CT scan dated January 21, 2012, showed the orbital floor fractures involved approximately 50% of each orbital floor (50% of the 25%, which is 12.5% for each eye). Thus, these orbital floor injuries are less than the 30% required, for each eye socket, to meet the standard for payment for facial reconstruction of the periorbital area. The remainder of the fractures were repaired with standard open reduction internal fixation with plates and screws or mandibulomaxillary fixation. Their course of healing was uncomplicated and no additional surgeries were performed. Therefore, this claim does not qualify for benefits. 9. Counsel provided a military police report, the application and denial letters for TSGLI and a disk with over 1300 documents, which show the applicant’s care during and after his assault. Essentially, he contends that the TSGLI office has used an explanation that deviates from the sole legal standard set forth in the TSGLI Procedural Guide, paragraph 6, for facial reconstruction. 10. An advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor. After reviewing case records, injuries noted on clinical and radiological studies, medical definitions, and the TSGLI Procedures Guide, he found that: * week-long hospitalization – does not meet criteria (15 days or more) * standard surgical repair of the midface, orbital rim and orbital floor fractures – does not meet criteria (In order to meet the standard for facial reconstruction, the member must experience a penetrating facial injury (avulsion) and lose bone or tissue that without replacement would leave a “gap” in the area of injury (discontinuity defect).) * Orbital blowout fractures (affect 50% of each orbital floor, or 1/2 of 1/4 of each orbit (i.e., one-eighth or 12-13% of each orbit) with a titanium mesh implant (affects less than 15% of each orbit, i.e., less than 30% total of both orbits) based on the available documentation) – does not meet criteria (30% or more of the left or right periorbita, or 50% or more of any of the following facial subunits, left or right infraorbital). * a. The Senior Medical Advisor noted that, in order to meet the standard for facial reconstruction, the member must experience a penetrating facial injury (avulsion) and lose bone or tissue that without replacement would leave a “gap” in the area of injury (discontinuity defect). b. He found that the applicant’s medical conditions were duly considered during the TSGLI review but found no evidence that the injuries met TSGLI claim requirements. 11. The advisory opinion was provided to counsel for an opportunity to respond. On 3 February 2017, counsel submitted a letter from Ms. T___ B___, RN, an Independent Nurse Reviewer, which states: a. We believe there is evidence to support that the applicant did suffer a “penetrating facial injury” or “avulsion.” During facial reconstruction surgery, the doctor noted a “significant amount of orbital contents that had herniated into intermaxillary sinuses.” Also, the orbital rim and floor fractures were comminuted bilaterally. In other words, the bones were broken apart in at least two pieces. In addition, the facial CT scan showed, “Diastases (separation) of the left frontozygomatic suture.” Most notably, the applicant was diagnosed with a Le Fort Type III fracture (left greater than right) which describes a skull fracture in which all attachments of the midface to the skull have been separated. All evidence indicates a penetrating facial injury. b. Undoubtedly, the applicant’s facial trauma was severe. She disagrees that the applicant’s facial reconstruction was “standard” or average. Although he did undergo open reduction internal fixation, his surgery was performed with multiple approaches, and there is further evidence his surgery was complex and involved more than the orbital floor. Bilaterally, the orbital rims were reduced and titanium plates were contoured to reshape the eye socket before fixation, even though the doctor did not specify the exact measurements of the orbital floor fractures. However, he did note that the orbital floor fractures were “large” indicating an area of more than 50% or average size. c. In the operative report, the orbital wall floor was contoured and a Mepor titanium floor graft was placed. Lateral to the bilateral orbital walls (bilateral zygomaticofrontal areas) KLS Martin 1.5 slightly cured plates were contoured and secured with titanium screw. d. Lastly, the “nasofrontal bone distention was reduced, and KLS Martin 1.5 Y plate was then used and secured with 6 titanium screws.” Based on the doctor’s operative description, the applicant’s facial reconstruction included resetting, contouring, and securing with titanium grafts/plates/screws to the upper third of his midface to restore facial symmetry and function. e. It is her professional opinion that more likely than not, facial reconstruction to the bilateral orbital floor/wall, which included portions of the nasofrontal, periorbital, and zygomatic margins, can be inferred to have totaled 30% or greater. 12. The Army Review Boards Agency Senior Medical Advisor reviewed the response to his advisory opinion and noted that while there was internal orbital debris in the sinus from herniation of contents (as noted on the CT scan), there was no exterior penetrating facial injury (avulsion) and loose bone or tissue that without replacement would have left a "gap" in the area of injury (i.e., a discontinuity defect). REFERENCES: 1. 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 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. 2. Traumatic Injury Protection Under SGLI: A Procedural Guide, Part 6 (Facial Reconstruction), states when a member suffers a severe maxillofacial injury, the member is eligible for a TSGLI benefit for facial reconstruction if the member meets the following standard: a. If the member undergoes surgery to correct traumatic avulsions of the face or jaw that cause discontinuity defects. In order to meet the standard for facial reconstruction, the member must experience a penetrating facial injury (avulsion) and lose bone or tissue that without replacement would leave a “gap” in the area of injury (discontinuity defect). b. A surgeon must certify that the surgery was to correct discontinuity loss to one or more of the following facial areas, to include: the upper or lower jaw, 50% or more of the cartilaginous nose, 50% or more of the upper or lower lip, 30% or more of the left or right periorbital, and 50% or more of any facial subunits to include, forehead, left or right temple, left or right zygomatic, left or right mandibular, left or right infraorbital or chin. 3. 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. TSGLI claims will not be approved without certification from a healthcare provider, and additional documentation must be provided to substantiate the certification. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. Counsel's request for a teleconference with the ABCMR was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board, and a teleconference is, in effect, a personnel appearance. Hearings and, similarly, teleconferences may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant and his counsel are sufficient to render a fair and equitable decision. 2. The evidence of record shows that HRC initially denied the applicant's TSGLI claims for facial reconstruction and the claim was twice denied again upon reconsideration. 3. The applicant’s counsel claims, in effect, that the applicant did, in fact, have a penetrating facial injury (avulsion) and a letter was provided by an independent nurse in which she concludes that, after reviewing the evidence, his facial reconstruction can be inferred to have met the TSGLI standard. 4. The Army Review Boards Agency Senior Medical Advisor stated that although there was internal orbital debris in the sinus from herniation of contents, there was no exterior penetrating facial injury (avulsion) and loose bone or tissue that without replacement would have left a "gap" in the area of injury. 5. TSGLI policy provides that, in order to meet the standard for facial reconstruction, the member must experience a penetrating facial injury (avulsion) and lose bone or tissue that without replacement would leave a “gap” in the area of injury (discontinuity defect). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016371 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016371 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2