IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20160004925 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: 25 August 2016 DOCKET NUMBER: AR20160004925 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: 25 August 2016 DOCKET NUMBER: AR20160004925 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: a. award of Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits to the applicant and b. a teleconference with the Board if the TSGLI denial decision is not reversed. 2. Counsel states: a. The TSGLI office denied the applicant's claim and subsequent appeals for loss of activities of daily living (ADL) claim for 30 days due to a traumatic brain injury (TBI). The finding is not consistent with the submitted statements and medical records. Ignoring the statements and medical records is in error and an injustice. He requests reversal of the decision and award of TSGLI benefits to the applicant. b. Denial of the applicant's TSGLI claim is unjustified in light of statements and evidence in the medical records which demonstrate he required assistance to perform at least two of his ADL due to a TBI for over 30 days. The statements and medical records have been ignored or unjustifiably discounted which makes the finding an injustice and error, especially under the low burden of proof for the preponderance of the evidence standard. 3. Counsel provides a compact disk which includes all previous TSGLI claims, evidence, appeals, denial letters, and 2198 medical records. The compact disk also includes the applicable law which is referenced in the most recent TSGLI denial letter as well as a recent court decision that affects how statements must be considered (they must be taken at face value should contradictory evidence not exist). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 13 March 2008 and trained as an information technology specialist and indirect fire infantryman. He served in Iraq from 1 October 2008 to 30 August 2009. 2. Part B (Medical Professional's Statement) of the applicant's TSGLI application, dated 2010, shows the attending physician stated the applicant: * was hospitalized from 8 October 2009 to 10 October 2009 * could not perform bathing, continence, dressing, toileting, or transferring independently during the period 14 August 2009 to 1 October 2009 3. Part B of the TSGLI application also shows the applicant's attending physician stated: a. The predominant reason he was unable to independently perform ADL was due to a TBI. He sustained traumatic injuries to his head and face at close range from an improvised explosive device (IED) blast in August 2009. b. He sustained shrapnel wounds to his right hand and left temple region due to an IED blast. c. He sustained a wide range of physical as well as psychological injuries, to include head trauma, hearing deficit, and neck and back pain, often requiring assistance. 4. On 12 January 2011, his request for TSGLI benefits was denied. 5. Part B of the applicant's TSGLI application, dated 2011, shows the attending physician stated the applicant: * was hospitalized from 15 August 2009 to 3 September 2009 * could not perform bathing, continence, dressing, toileting, or transferring independently during the period 14 August 2009 to 3 September 2009 6. Part B of the TSGLI application also shows the applicant's attending physician stated: a. The predominant reason he was unable to independently perform ADL was because he was hit by an IED 10 meters away. b. He was unable to bathe, dress, toilet, or transfer independently due to concussion, severe headaches, dizziness, and hip and neck injuries. c. He sustained significant deficits in speech, cognitive learning, memory, and bilateral hearing loss. 7. On 8 August 2011, his request for reconsideration for TSGLI benefits was denied. 8. Counsel provided a TSGLI application, dated 13 November 2014, wherein counsel, having power of attorney for the applicant's interests relating to his TSGLI claim, reported the applicant was severely injured during combat on 15 August 2009 in Iraq. While on night patrol, four roadside bombs exploded and the applicant was fully exposed from the chest up. Among other injures, he suffered two broken hips and a 6-inch piece of rebar landed inside his helmet next to his skull from the explosions. 9. On 25 November 2014, the applicant retired by reason of temporary disability and was placed on the Temporary Disability Retired List effective 26 November 2014 in the rank of sergeant. 10. On 4 December 2014, counsel submitted an appeal for TSGLI benefits. He appealed the applicant's denied TSGLI claim for a TBI leading to a loss of ability to independently perform at least two ADL for over 30 days. He provided statements from the applicant's parents, dated December 2014, describing the applicant's physical and mental state following his TBI. They attest: * he was confused and disoriented * he had short-term memory loss * he required a great deal of assistance * he needed help showering and dressing * he was unstable on his feet * he couldn't perform simple tasks 11. Counsel also provided a statement from an independent nurse reviewer, dated December 2014. a. She reviewed the applicant's medical records as they related to a traumatic event on 14 August 2009. Review of the records confirmed he was seriously injured in Iraq by multiple IED explosions that hit the vehicle he was riding in. He was thrown forward and hit his head on the windshield of the turret. Metal penetrated the left side of his helmet. He suffered a severe concussion with TBI, to include shrapnel wounds to his left temple and right hand. He was airlifted to Tikrit, Iraq, and he was evacuated to Germany on 20 August 2009 where he remained until being transferred to Hawaii on 3 September 2009. b. As a result of his TBI, the applicant experienced short-term memory loss, confusion, insomnia, cognitive impairment, debilitating headaches, and vertigo. He was unable to perform the simplest of tasks without assistance. It was the first month after his initial injury that he required ADL assistance on a daily basis. c. During this period of ADL loss, he required daily verbal assistance and stand-by assistance to perform bathing, dressing, toileting, and transferring. 12. Records show the U.S. Army Human Resources Command Army TSGLI Program Office approved counsel's appeal request for TSGLI on 22 September 2015. The Army TSGLI Program Office approved the award of benefits for loss of ADL from a TBI for the 15-day milestone. Payment for this loss is $25,000.00. That office was unable to overturn the previous adjudication concerning losses associated with ADL from other traumatic injuries, hospitalization, loss of hearing in both ears, and loss of speech from his traumatic injury that occurred on 14 August 2009 in Iraq. 13. Counsel submitted a second TSGLI appeal in October 2015. On 12 February 2016, the U.S. Army Human Resources Command Special Compensations Branch notified the applicant that he had exhausted his appeal rights with that office. 14. The applicant was removed from the Temporary Disability Retired List on 21 March 2016 and permanently retired with a 90-percent disability rating. 15. Counsel provided a recent court decision, dated September 2013, pertaining to approval and denial of TSGLI benefits to eight service members. 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 was designated as the lead agent for implementing the Army TSGLI Program. The TSGLI Program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. TSGLI provides between $25,000.00 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. 2. There are some specific circumstances under which a traumatic injury will not be covered by TSGLI. A qualifying traumatic injury is an injury or loss caused by application of external force or violence (i.e., traumatic event) or a condition whose cause can be directly linked to a traumatic event. Traumatic injuries covered may include but are not limited to the following types of losses: a. total and permanent loss of sight in one or both eyes; b. loss of hand or foot by severance at or above the wrist or ankle; c. total and permanent loss of hearing in one or both ears; d. loss of speech; e. loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints; f. quadriplegia, paraplegia, or hemiplegia; g. third-degree or worse burns covering 30 percent of the body or 30 percent of the face; h. coma or traumatic brain injury; or i. other traumatic injuries 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 two of the six ADL for 30 days or more (15 days or more in the case of traumatic brain injuries). ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation, such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) governs operation of the ABCMR. Paragraph 2-11 states 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. The court decision provided by counsel pertaining to approval and denial of TSGLI benefits to eight service members was noted. However, each application is considered based on its individual merits. 2. Although counsel contends the medical records and statements provided have been ignored or unjustifiably discounted by the Army TSGLI Program Office, he provided no evidence to support this contention. The evidence of record indicates the applicant's claims were thoroughly reviewed three times and it appears he did not meet the criteria for any additional TSGLI benefits. 3. Counsel contends the applicant required assistance to perform at least two ADL for over 30 days due to a TBI. 4. ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation, such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 5. The medical documentation provided by counsel was carefully considered. However, the documentation submitted does not indicate the injury rendered the applicant incapable of performing any ADL for 30 days or more per TSGLI guidelines. 6. Counsel's request for a teleconference was carefully considered. By regulation, an applicant is not entitled to a hearing before the Board. Hearings 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 counsel are sufficient to render a fair and equitable decision in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004925 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004925 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2