BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017537 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 BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017537 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 the ABCMR set forth in Docket Number AR20070010601, dated 8 November 2007. ______________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. BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017537 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his Traumatic Servicemembers' Group Life Insurance (TSGLI) claim. 2. The applicant states the TSGLI Program Office denied his appeal. 3. The applicant provides his service medical records and documentation related to his TSGLI application and denials. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's TSGLI claim. The applicant's traumatic injury occurred on 23 March 2006 while serving in Iraq. This traumatic event, injury, and subsequent loss are the basis of his TSGLI claim and appeal. 2. Counsel states: a. The original claim was submitted on or about 27 April 2006. The claim was denied on 12 June 2006. The Office of Servicemembers' Group Life Insurance stated the reason for its denial as "...you must incur a covered loss and that loss must be a direct result of a traumatic event." A request for reconsideration was submitted by the applicant on or about 27 June 2006 and was denied on 5 August 2006 by the U.S. Army Physical Disability Agency (USAPDA) TSGLI Program Office. The denial letter stated, "...we were unable to find any 'documentary evidence' to reverse the decision made on your claim." The applicant submitted another appeal on or about 7 August 2006 and it was denied on 14 September 2006 by the USAPDA TSGLI Program Office. The denial letter stated: "The supporting medical documentation does not support the physician's certification." The September 2006 denial letter directed the applicant to submit an application to the Army Board for Correction of Military Records (ABCMR) for further review of his TSGLI claim. b. Title 10, U.S. Code (USC), section 1552, and Title 32, Code of Federal Regulations (CFR), section 581.3, enable the ABCMR to review and correct military records. The Board will take action if it finds sufficient evidence on the record that a material error or injustice exists. Title 32, CFR, section 581.3(a)(4)(ii), provides for the ABCMR to presume administrative regularity and the applicant "has the burden of proving an error or injustice by a preponderance of the evidence." c. The applicant's medical records address his specific injury that was incurred by a fall, which qualifies as a traumatic event and injury. On 23 March 2006, the applicant fell off a berm while walking in Iraq. He sustained bimalleolar fractures in his right ankle. He had an open reduction internal fixation surgery on 6 April 2006. The fall and resulting injury are the basis of his TSGLI claim and appeal. The applicant does not make any claim for hospitalization. As the evidence illustrates, his losses of activities of daily living (ADL) and the injury that caused it fully support his eligibility for TSGLI benefits of $100,000 for ADL losses of over 120 days. d. The applicant's medical records from licensed medical providers illustrate the ADL losses and his timeline of treatment. The applicant required physical and standby assistance to bathe and dress. The applicant's 23 March 2006 fall and resulting injuries, as well as the pain and corresponding restrictions he endured, lasted through at least July 2006. As part of his recovery, he started physical therapy on or about 10 May 2006. Physical therapy focused on gait mobility, range of motion, strengthening, and conditioning. He continued with physical therapy through 20 July 2006. e. The applicant's injuries and ADL loss are well documented and supported by medical information, and specifically address his injuries of bimalleolar fractures in his right ankle. It further illustrates the extensive timeline of treatment and recovery, including surgery and many months of medical care. Additionally, two medical doctors certified his inability to independently perform ADL, attesting that he did, in fact, require assistance with bathing, dressing, and toileting. He could not perform those specific ADL safely without assistance due to the extent of his injuries. All other references have been produced by licensed medical providers, physical therapists, and other medical professionals. In short, all the types of valid information necessary to establish his eligibility for TSGLI benefits. f. The ABCMR should reconsider the applicant's claim based on medical evidence previously submitted and additional documentation submitted with this appeal. The decision was incorrect because he had the inability to bathe, dress, and toilet independently for at least 120 days which qualifies him for $100,000. g. As a result of his traumatic injuries, the applicant required assistance with bathing and drying his right lower extremity, as well as with balance. He also needed assistance with dressing due to issues with balance and a physical inability to dress his right lower extremity. Further still, he needed assistance with toileting due to difficulty getting to and from, as well as on and off, the toilet. Due to the right ankle injury and surgery, he had substantial physical limitations that made it impossible and unsafe for him to attempt to perform these ADL during his recovery without assistance. This was compounded by his multiple right ankle fractures which caused him to be unsteady and unable to fully bear weight, causing him to be dangerously unstable. For these reasons he required physical and standby assistance with ADL. h. The evidence in this case supports the applicant's inability to bathe, dress, or toilet independently for well over 120 days. These activities are qualifying ADL and he was unable to perform them without physical and standby assistance from 23 March 2006 to 30 July 2006, a period of well over 120 days (130 days). The decision of the Army TSGLI Program Office to deny the claim on grounds of insufficient medical information should be overturned, as the applicant's inability to bathe and dress independently for at least 120 days establishes his eligibility for TSGLI benefits. i. We wish to raise the "benefit of the doubt" principle that the ABCMR should apply in reviewing TSGLI claim determinations. The standard of evidence in TSGLI cases is generally a "preponderance of the evidence" standard, meaning that if the evidence proves the service member's claim is more likely true than not, the service member is entitled to benefits. j. We believe this standard is commonly misapplied by the agency in TSGLI claims and that service members are held to a much higher standard of proof, especially in "close call" situations. While it is our position that the applicant's claim is meritorious and should be awarded based on the preponderance of the evidence, it is our position that the agency should apply the "benefit of the doubt" standard, similar to how the Department of Veterans Affairs (VA) handles benefit claims should this be seen as a "close call" case. k. Pursuant to Title 38, USC, section 5107(b), veterans are given "the benefit of the doubt when there is an approximate balance of positive and negative evidence on a material issue. Thus, when the positive and negative evidence relating to a veteran's claim for benefits are in 'approximate balance,' thereby creating a 'reasonable doubt' as to the merits of his or her claim, the veteran must prevail" (see Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001)). Essentially, a "tie goes to the runner  – or in context of a TSGLI claim – the injured service member/claimant. This standard should be applied in this specific case. 3. Counsel provides copies of the applicant's: * procedural history * original TSGLI application (certified by Dr. T____ T____) * revised TSGLI application (certified by Dr. D____ H____) * denial letters * medical summary * medical records CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070010601 on 8 November 2007. 2. The applicant, through counsel, provides a new argument which warrants consideration by the Board. 3. The applicant, a former member of the Georgia Army National Guard (GAARNG), served in Iraq from 18 May 2005 through 29 March 2006. On 23 March 2006 while performing guard duty (walking), he fell from a 30-foot berm and suffered a bilateral fracture to his right ankle. It required surgery with the placement of plates, pins, and screws on both sides of his ankle. A DA Form 2173 (Statement of Medical Examination and Duty Status) states the details of the accident as "[the applicant] was going off guard duty walking down a burm [berm] line and slipped and fell causing the injury." 4. On 3 April 2006, the applicant was admitted to the hospital at Fort Gordon, GA. An inpatient medical note dictated by Dr. T____ T____ shows his diagnosis as right bimalleolar ankle fracture. The doctor stated the applicant's history, “[GAARNG] Soldier who sustained an ankle fracture on March 23, 2006 after he tripped and fell onto his right ankle while walking on a platform." Surgery was performed on 6 April 2006 and he was discharged from the hospital on 7 April 2006. The medical note shows the procedure was uncomplicated and a splint was placed on his leg. The disposition instructions included medication and non-weightbearing on his right leg. He was directed to follow up a week later. 4. On or about 27 April 2006, the applicant submitted a TSGLI claim for an ankle fracture resulting from a fall in Iraq. No loss of ADL were certified by Dr. T____ T____ on his claim form. On 12 June 2006, the Office of Servicemember's Group Life Insurance provided the applicant a letter denying his claim because his loss was not a direct result of a traumatic event. He had not incurred a qualified scheduled loss (amputation, loss of sight, speech, or hearing; paralysis, brain injury, burns (over 30 percent of his body) or other traumatic injuries). In addition, the physician did not list any ADL on the certification form. 5. On 27 June 2006, the applicant submitted a request for reconsideration of his TSGLI claim for loss of ADL for dressing, bathing, toileting, and transferring for 60 days. On 5 August 2006, the USAPDA again denied his claim because that office was not able to find "documentary evidence" to reverse its previous decision. 6. On 7 August 2006, the applicant filed an appeal. He now claimed loss of ADL for 60 days due to a right ankle fracture necessitating surgery, placement of pins, screws, and a plate; and rehabilitation requiring a wheelchair, crutches, and eventual physical therapy. A new physician, Dr. J____ M____, certified the application on 1 August 2006, indicating the applicant could not perform the ADL of dressing, bathing, toileting, and transferring for 60 days stating the applicant "was significantly limited because of his orthopedic injury." 7. On 14 September 2006, the USAPDA denied his appeal because the medical documentation submitted was insufficient to support his claim that he was unable to perform ADL. He was advised he could appeal to the ABCMR. 8. On 11 July 2007, the applicant submitted a request to the ABCMR for payment of his TSGLI claims. The ABCMR denied his request on 8 November 2007. 9. The applicant retained counsel who submitted a new application to the TSGLI program office which did not take action and referred counsel to this Board. Through a proper request, it appears counsel received copies of the applicant's files maintained by the TSGLI Program Office. 10. In support of his application, the applicant, through counsel, provides TSGLI claim procedural history with documentation showing the timeline of all claims submitted. In addition, counsel points out the reason for denial was that the supporting medical documentation did not support the physician's certification. REFERENCES: 1. Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on 11 May 2005, established the TSGLI Program. U.S. Army Combat-Related Special Compensation has been designated as the lead agent for implementing the Army TSGLI Program. The TSGLI Program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. The 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. As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage. Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1.00 deducted each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI – it is a package. Soldiers who elect SGLI coverage and incur a qualifying traumatic injury after 1 December 2005 (with the exception of some specific circumstances under which a traumatic injury will not be covered), regardless of their component (Active or Reserve) or the location in which they incurred the injury, will be covered by TSGLI. 2. The TSGLI Procedures Guide states TSGLI provides for payment as a result of a traumatic event. TSGLI is designed to help traumatically injured service members and their families with financial burdens associated with recovering from an injury. There are specific circumstances under which a traumatic injury will not be covered by TSGLI. a. A qualifying traumatic injury is an injury or loss caused by external force or traumatic event. An external force is a force or power that causes an individual to meet involuntarily with an object, matter, or entity that causes the individual harm. Internal forces are forces acting between body parts while external forces are forces acting between the body and the environment, including contact forces, gravitational forces, and environmental forces. b. A traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance or exposure to the elements that causes damage to the body. The event must involve a physical impact on the individual. It would not include an injury that is induced by the stress or strain of the normal work effort that is employed by an individual, [such as walking]. c. Part 4 (Schedule of Losses) provides that a scheduled loss is a loss that is suffered as a result of a traumatic event and is listed on the schedule of losses. There are nine categories of losses covered. * sensory loss (sight, hearing, and speech) * burns * paralysis * amputation * limb salvage * facial reconstruction * ADL * inpatient hospitalization (more than 15 consecutive days) * genitourinary losses d. ADL are routine self-care activities that a person normally performs every day without assistance. There are six basic ADL: eating, bathing, dressing, toileting, transferring and continence. The following aspects of ADL loss are covered: * determining if a member has loss of ADL * coma due to traumatic brain injury (TBI) * loss of ADL due to TBI * coma combined with loss of ADL due to TBI * coma due to TBI combined with another injury * loss of ADL due to TBI combined with another injury * loss of ADL due to traumatic injury (other than TBI) * break between consecutive periods of inability to perform ADL * loss of ADL due to another injury that qualifies for payment e. A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADL. If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior, the patient is considered able to independently perform the activity. The term "requires" is further defined as physical assistance when a patient requires hand-on assistance from another person; stand-by assistance is when patient requires someone to be within arm's reach because the patient's ability fluctuates and physical or verbal assistance may be needed; verbal assistance is when a patient requires verbal instruction to complete the ADL due to cognitive impairment. f. 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. TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 3. 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. 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: 1. The evidence of record shows the applicant's multiple requests for TSGLI were denied by appropriate authorities. Now, through counsel, the applicant makes another application to the Board. 2. With respect to the "benefit of the doubt" principle, both the statutory and regulatory guidance provide 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. Furthermore, the VA under Title 38, operates under different laws, regulations, and instructions. The VA "benefit of the doubt" principle is not accepted as an argument in this case. 3. The applicant sustained an injury to his ankle while walking in the performance of his guard duties in Iraq. There are no documented external forces that caused his injury. An external force is a force or power that causes an individual to meet involuntarily with an object, matter, or entity that causes the individual harm. His DA Form 2173 specifically states "[the applicant] was going off guard duty walking down a burm [berm] line and slipped and fell causing the injury." 4. Based on his injury, he required surgery and was hospitalized for less than 15 days. Medical notes show he tolerated the surgery well and was discharged for out-patient treatment that was unremarkable. He was provided with orthopedic devices to assist him with his mobility. 5. TSGLI claims may be filed for loss of ADL if claimant is dependent on someone else to perform two of the six ADL for 30 days or more. In addition, ADL loss must be certified by a healthcare provider. The 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. 6. The applicant's physician indicated in Part B of his TSGLI claim form, dated 1 August 2006, that he could not perform dressing, bathing, or transferring independently for more than 60 days. This statement is not corroborated by evidence in his service medical records. While the fact that the applicant required medical care and support immediately following his ankle surgery is not in dispute, the evidence in his service medical records appears to not support the physician's certification. 7. From all appearances, counsel and the applicant failed to provide adequate evidence from his medical records showing he could not perform ADL independently and was completely dependent on someone else to perform two of six ADL, notwithstanding the fact the applicant's injury by definition was not a traumatic injury. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017537 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017537 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2