IN BOARD DATE: 5 February 2019 DOCKET NUMBER: AR20160005631 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 February 2019 DOCKET NUMBER: AR20160005631 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 reversal of the Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) Program office's denial for benefits for loss of limb, coma, hospitalization and activity of daily living (ADL) loss due to her injury not being found to be caused by a traumatic event under TSGL guidelines. 2. Counsel states the interpretation of traumatic event under the Guidelines fits the applicant's loss. Also, treatment to address traumatic events is directly covered under the Guidelines, which makes the decision an error and an injustice, and it is requested that the decision be reversed and the requested benefits are provided. 3. The denial of the applicant's TSGLI claim and appeals is unjustified in light of the fact that her loss was due to an external impact. The applicant's loss occurred during an Insanity Workout while doing jump squats, which requires a jump as high as possible, then a hard landing. The statements, medical records, and other evidence 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. It is requested benefits for loss of limb, coma, hospitalization, and ADL loss be provided. 4. Please see the attached disk for "Exhibit A", which includes all previous claims, evidence, appeals, and denial letters. In "Exhibit (unreadable) the applicable law, which is referenced in the most recent denial letter is provided, as well as a recent court decision that affects (unreadable) statements must be considered, specifically that they must be taken at face value should contradictory evidence not exist. 5. Counsel also provided: * Power of attorney for counsel to represent the applicant in this matter * Section 9.20 of Title 38 Code of Federal Regulations * General Provisions of TSGLI taken from the TSGLI Procedures Guide * Civil Action , United States District Court CONSIDERATION OF EVIDENCE: 1. On 17 February 2010, the applicant enlisted in the U.S. Army Reserve (USAR). On 16 August 2010, the applicant entered active duty for training. On 12 April 2011, the applicant was released from active duty and returned to her unit. She completed 7 months and 27 days of active service that was characterized as honorable. 2. On 12 May 2013, the applicant submitted a SGLV 8600 (Application for TSGLI Benefits). a. The applicant stated she was perfectly healthy and she was doing her normal workout preparing for her physical training test when she started noticing that her hamstring was sore. She went to Urgent Care and they told her she pulled a muscle. She returned to the emergency room (ER) on 2 April 2013 and she was admitted. She was septic and having organ failure. Her hamstring and gluteus were completely dead. Her gluteus and hamstring were removed on 4 April 2013 and she was put on life support. The infection kept persisting and they amputated her complete leg on 12 April 2013. She was in the trauma unit fighting for her life for over 70 days. She was in the hospital from 2 April 2013 to 12 June 2013. b. Her claim for benefits was based on: * inpatient hospitalization for at least 15 days * coma from 3 April 2013 - 27 April 2013 * amputation of left foot * loss of ADLs c. Her loss of ADLs included: * unable to bathe independently from 2 April 2013 - ongoing * unable to maintain continence independently from 5 April 2013 - 6 November 2013 * unable to dress independently from 9 April 2013 - ongoing * unable to eat independently from 4 April 2013 - 19 May 2013 * unable to toilet independently from 2 April 2013 - ongoing * unable to transfer independently from 2 April 2013 - ongoing d. Her attending physician certified the applicant required assistance with all ADLs including showering, ascending and descending stairs, grocery shopping, laundry, cleaning her for the remainder of her life. She required assistance with bandage dressing changes until January 2014. 3. On 6 February 2014, the U.S. Army Human Resources Command (HRC) denied her TSGLI claim because they found the applicant did not meet eligibility requirements. HRC determined her claimed loss was not a direct result of a qualifying traumatic event. 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. 4. On 10 April 2014, HRC forwarded all the documents to the applicant's counsel used in the determination of her TSGLI claim. 5. On 30 April 2014, the applicant's counsel filed a letter of appeal on her behalf. a. On 29 March 2013, the applicant was working out using the extreme workout, the "Insanity Workout." After doing a series of "squat reach jumps", she felt a tear and severe pain in the back of her left upper thigh and hamstring area. b. On 31 March 2013, she presented to an Urgent Care Clinic for evaluation due to worsening pain. She was diagnosed with sciatica and treated with Toradol, Flexeril and Vicodin. c. On 2 April 2013, she was transported to Sutter Roseville Medical Center, Roseville, CA with shortness of breath, cold extremities, swollen tongue and dusky nail beds. Her blood pressure dropped to the 70's over 50's. She was given an IV antibiotic and intubated. A computerized tomography (CT) abdomen/pelvis showed inflammatory changes in the left hemipelvis particularly around the gluteal muscles and the left hip. The applicant was immediately taken to the operating room (OR). Surgery included complete resection of the gluteus maximus, gluteus medius and gluteus minimus, tensor fascia lata and piriformis. There was note of widespread gluteal necrosis. She was transferred to the intensive care unit (ICU) with multiple organ failure. She was sedated and placed on a ventilator. On 4 April 2013, surgery was performed to amputate at knee level. Two more surgeries were done for debridement (the medical removal of dead, damaged, or infected tissue to improve the healing potential of the remaining healthy tissue) and wound vacuum (a pump for suction of fluids from wounds that are difficult to heal on their own) placement. On 12 April 2013, her entire left leg was amputated at the hip. She remained in ICU in a coma until 27 April 2013. The applicant remained hospitalized until 1 June 2013 then transferred to Sutter Rehab Institute until her discharge on 11 June 2013. d. There is evidence to support the applicant's claim that the loss of her left leg due to necrotizing fasciitis (A serious and rare bacterial infection that starts in the tissues and spreads to the flat layers of the tissue.) was the result of physical impact from a traumatic injury she suffered while working out with the intense 'Insanity Workout Program. e. Definitions under the TSGLI Procedures Guide state: (1) A traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, accidental digestion of a contaminated substance, or exposure to elements that causes damage to the body. (2) External force is a force that causes an individual to meet involuntarily with an object, matter, or entity that causes harm to the individual." It further explains that "internal forces are forces acting between body parts, and external forces are forces acting between the body and the environment." f. Exhibit A is a letter from the applicant's surgeon, Dr. B, M.D., Trauma Medical Group of . Dr. B stated the applicant sustained surgical loss of leg due to a traumatic event, outside source, not a disease. The applicant sustained injury to her gluteal hamstring muscle due to a work out. The leg was eventually amputated due to necrotizing fasciitis. g. Exhibit B is a statement, dated 30 April 2013, from the applicant. The applicant stated: (1) The applicant stated that on 29 March 2013, she was working out using the "Insanity Workout Program". She was on her 3rd set of jump squats, called "a squat reach jump. She jumped up with her arms in the air and squatted at the same time. When she landed, she felt immediate pain and something tear in her left thigh, hamstring area. She stopped her exercises and tried to stretch it out. She went to the Urgent care Clinic for treatment. She was diagnosed with sciatica and given pain medications. (2) On 2 April 2013, she became very ill. Her husband took her to Sutter Roseville Medical Center, CA where her blood pressure bottomed out. She was intubated and immediately taken into surgery. She had a complete resection of the gluteus maximus, gluteus medius and gluteus minimus, tensor fascia lata and piriformis due to necrotizing fasciitis. She was sedated and placed on a ventilator, then transferred to ICU in multiple organ failure. On 4 April 2013, her left leg was amputated at knee level. She had two more surgeries after that for debridement. On 12 April 2013, her entire left leg was amputated at the hip. She remained in ICU in a coma until 27 April 2013. She was hospitalized until 1 June 2013, then transferred to Sutter Rehab Institute until she was discharged home to the care of her husband on 11June 2013. (3) She used a wheelchair and walker with help from her husband. She had a wound vacuum for over six months that was on 24 hours a day. She had a stint that was in place for IV antibiotics that were given daily by the hospital or her caregiver. She was depressed and it was hard to move past this tragic event. She was in a lot of pain and very weak. She has three children and it was hard to help them with the smallest task. She needed 24 hour care, she couldn't be left alone. She needed daily rides to the hospital because she was unable to drive and needed assistance to and from the doctor's office. She was unable to dress myself and needed help in all daily tasks. Daily assistance was needed for using the bathroom and emptying her Ostomy bag multiple times a day. She had a pic line that needed to be flushed daily plus antibiotics given every 24 hours. She was so weak she needed help transferring from wheelchair to bed. She couldn't cook or clean and she needed help taking care of the children. She needed help with changing her bandages and her wound vacuum on a daily basis. She had to have help bathing on a daily basis getting in the shower or in the bathtub. Her husband had to lift her in and out. h. Exhibit C is a statement, dated 30 April 2014, from her husband. Her husband stated: (1) When the applicant came home from the hospital she was unable to do anything on her own. She was so weak and unable to use a walker at first. He had to help her use the restroom, empty her Ostomy bag, and change her bandages on a daily basis. He had to flush her pic line and give her IV antibiotics. He bathed her and helped her get dressed. She was unable to get around without someone holding on to the wound vacuum at all times. He also took her to the hospital every day for wound changes, antibiotics, and physical therapy. The applicant almost died on several occasions and it took a toll on her mentally and physically. (2) Even though the applicant is a lot stronger now, he still needs to help her on a daily basis getting in and out of the shower, helping her dress, and daily tasks that she is unable to do without having her leg. She can't carry anything due to her being on crutches, so it makes it very difficult to cook and help around the house. i. Exhibit D is a statement, dated 29 April 2014, from an independent registered nurse, TB, RN, BSN. (1) A review of the medical records and through personal interviews with the applicant and her husband confirmed the applicant was working out using the extreme workout, "The Insanity Workout" on 29 March 2013. She was in her third set of jump squats, called "squat reach jumps", aggressive exercise in which you jump up as high as you can with arms up and land in a squat. She immediately felt a tear and severe pain in the back of her left thigh, hamstring area. (2) The applicant was in a coma from 2 April 2013 until 27 April 2013. She remained hospitalized at Roseville Sutter Medical Center until 1 June 2013, when she was transferred to Sutter Rehab Institute. She was hospitalized there until June 11, 2013. (3) The applicant was discharged home from the hospital to the care of her husband on 11 June 2013. For months, her husband assisted her with bathing, dressing, toileting and transferring due to impaired mobility, weakness, pain, and the risk of falling. Although it is documented the applicant was able to perform certain tasks in the hospital such as walking with crutches, once she was in her home environment, she was no longer able to perform these tasks without assistance. With the use of only one leg, she required assistance to get in and out of the bathtub/shower, getting up/off the toilet, putting on/off clothing on her lower body, walking up/down the stairs and getting in/out of the car. j. A new TSGLI Application Part A is hereby submitted. The original Part A submitted by the applicant was incorrectly filled out by her third party representative, who was unfamiliar with the traumatic event leading to the applicant's left leg amputation. k. Counsel requests $75,000.00 on behalf of the applicant under #11 Amputation of the foot and #17 Coma from traumatic injury at 15th consecutive day of coma or ADL loss under Traumatic Service Members Group Life Insurance Schedule of Losses. The attached exhibits, declarations, and medical records demonstrate the applicant is eligible for $75,000.00 per TSGLI policy. In addition, the applicant is eligible for $100,000.00 under Traumatic Service Members Group Life Insurance Schedule of Losses #20 Traumatic injury resulting in inability to perform at least 2 Activities of Daily Living (ADL) at 120th consecutive day of ADL loss and $25,000.00 for loss #21 Hospitalization due to traumatic injury at 15th consecutive day of hospitalization. 6. Medical records confirm the injury, diagnoses and subsequent treatment from the Sutter Roseville Medical Center and Sutter Rehab Institute. a. On 2 April 2013, a Critical Care Consultation was conducted by Dr. SSA, MD, Sutter Roseville Medical Center, Roseville, CA. (1) Dr. SSA stated the applicant had been experiencing some pain in the lower back and the left hip area dating back to about 10 days ago. She apparently works out and she thought she pulled a muscle. She was seen in the ER a week ago. She was worked up and did not seem to have any acute problems at that time. She was told to take some Flexeril and Vicodin and over- the-counter pain medication. She continued to work all of last week. Her sciatica type of pain got worse. The pain was in the lower back with radiated on the left side of the hamstring area and thigh. She became sick and confused and had high fevers last night. Husband called for help and she was brought to the ER. In the ER, she was arousable. She was weak. She has been hypotensive. Dr. W has given her IV fluid. Her condition getting worse. Her lower extremities are modeled. She is hypotensive. Her blood pressure has been in the 80s and 90s. She had received IV fluids. (2) Dr. SSA saw the applicant in the ER. Her systolic blood pressure was 89. Dr. W, based on their conversation, had ordered CTs of chest, abdomen and pelvis and soft tissue inflammation and swelling in the left hip and gluteal area and the muscles on the left side of the hip and buttock were noted. The applicant's condition progressively worsening. In the ER, she continued to be hypotensive. Dr. SSA talked to Dr. DM during the course of this evaluation over several hours and he took the applicant to the OR. (3) Dr. SSA's assessment was possible myelitis or necrotizing fasciitis in the left hip area, it could be soft tissue infection or possibly abscess, and hypotension and shock due to the infectious process. b. On 2 April 2013, an Orthopedic Consultation was conducted by Dr. CGF, MD, Sutter Roseville Medical Center. Dr. CGF was asked to perform an urgent consult and assist in the OR by Dr. DM and Dr. B. (1) He was asked by the Trauma Service to perform incision and drainage (I&D) of necrotic muscle of the applicant's left gluteal region. Details of the history were not clear, but by report, the applicant noted to have had a rigorous workout last Wednesday. She thought she had hurt her left hamstring or her gluteal muscles and presented to an Urgent Care facility where sciatic was diagnosed. The applicant then presented to Sutter Roseville Medical Center ER this morning complaining of feeling ill for a couple of days. (2) The applicant was admitted with renal failure and shock and she was taken to the OR by General Surgery for possible abscess. When Dr. DM opened the incision, there is widespread muscle necrosis. He then asked Dr. CGF to urgently come to the OR and takeover the I&D due to his knowledge of the anatomy in the gluteal region. The patient was neurovascularly intact in all four extremities preoperative by report. c. On 2 April 2013, a General Surgical consultation was conducted by Dr. DM, MD, Sutter Roseville Medical Center. Dr. DM's impression: Necrotizing soft tissue infection of the left buttock and thigh versus abscess versus cellulitis versus necrotizing myositis. The applicant was to undergo resuscitative measures and when stable was taken to the OR for exploration. The procedure was discussed in detail with the applicant and her family. Informed consent was obtained. d. On 4 April 2013, an Infectious Disease Consultation was conducted by Dr. RK, MD. Dr. RK's impression were: * likely group A streptococcus toxic shock syndrome with multi-organ failure * left gluteus/lower extremity necrotizing fasciitis * acute respiratory failure * acute renal failure * rhabdomyolysis * shock liver e. On 14 April 2013, a Nephrology Consultation was conducted by Dr. PB, MD, Sutter Roseville Medical Center. Dr. PH's impression and recommendations were acute kidney injury. The applicant was presenting with anuric acute tubular necrosis in the setting of shock; rhabdomyolysis and nonsteroidal anti- inflammatory drug use, possibly prolonged by post-strep glomerulonephritis, unlikely IVIG related thrombotic injury, unlikely to be interstitial nephritis from penicillin. Of note, her serum eosinophils have been just 1 percent in the last several days when last checked. 7. A Transfer Summary was prepared for the applicant's transfer to Sutter Rehab Institute on 1 June 2013. In the patient's history, there was a history of a pedicure of the left foot with a nail bed injury prior to this, which may have led to bacteremia. In addition, there was concern that possibly the bacteremic source could have been gynecological (a tampon) and/or related to physical workouts that the patient was engaging in prior to the incident. The exact etiology was not determined and may never be known, but she did present with horrible left buttock and flank necrotizing myositis. 8. A Discharge Summary from the Rehab Unit (1-11 June 2013) stated the applicant made excellent gains in her functions. She was modified independent for bed mobility; transfer is supervision. She was able to walk up to 150 feet with crutches from a supervision to minimum assist level. She could go up and down 5 steps at the supervision to minimum assist level. Car transfer is supervision. Fall recovery is supervision. For her self-care skills, the applicant was independent for toileting, upper body dressing was independent; lower body dressing is independent. Bathing transfer was supervision. Toilet transfer was modified independent with a front-wheeled walker and bathing was modified independent at the seated level. 9. On 30 September 2014, the Prudential Office of Servicemember's Group Life Insurance notified the applicant her claim could not be approved for TSGLI benefits. Her claim was not approved because her losses were not a direct result of a traumatic event. Under TSGLI, a traumatic event is defined as "the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being." Because evidence indicates that her losses did not directly result from a traumatic event as defined above, her branch of service could not approve her claim. 10. On 6 November 2014, the applicant's filed an appeal on her behalf. a. The circumstances of the applicant's injury described in counsel's letter of appeal, dated 30 April 2014, remain the same. b. The letter dated 30 September 2014 issued from Prudential Office of Servicemember's Group Life Insurance reiterates the decision of denying the claim since it was not considered a traumatic event. This sole issue was the basis of the denial, it remains in disagreement, and is the focus of this appeal. c. The applicant's injury was due to an extreme and dangerous exercise. The impact on her leg during this workout was so severe that it led to the amputation of her leg. There were no listed medical issues that led to the amputation, it was directly and totally related to the direct impact. The cause of the injury is similar to a boxer who has a traumatic brain injury due to a severe punch or a bad impact in football that causes broken bones. Counsel has handled these types of claims and they were deemed traumatic events by the TSGLI office. d. An injury during an Insanity Workout is more akin to an injury in boxing or football, or even a less violent sport, like basketball or baseball, than a regular strain from a normal work effort. A regular strain from a normal work effort absent any unforeseen medical issues would not cause amputation of a leg. Simply put, there is an inherent risk in some sporting and exercise activities that involves external force and direct impact that may cause traumatic injuries and traumatic events. This presence of risk and the nature of the activity separate it from non-traumatic injuries that involve internal forces or normal strain due to work effort. e. The extreme nature of the Insanity Workout involved a traumatic impact on the applicant's leg that directly led to the amputation. The injury was not incurred due to regular strain of something like lifting a ladder. The injury was caused by an extreme and direct impact with the applicant's body and the ground when she was involved in the jump squat exercise. (See "Exhibit B" for Mrs. Hole's account of the event). The situation is more akin to when someone who slips in the tub and hits the ground, a defined traumatic event, than a normal strain from lifting a ladder, a defined non-traumatic event. Thus, the applicant's injury is clearly more in line with the traumatic event examples in the TSGLI Procedures Guide than the non-traumatic event examples. f. Counsel requests $75,000.00 on behalf of the applicant under #11 Amputation of the foot and #17 Coma from traumatic injury at 15th consecutive day of coma or ADL loss under Traumatic Service Members Group Life Insurance Schedule of Losses. The attached exhibits, declarations, and medical records demonstrate the applicant is eligible for $75,000.00 per TSGLI policy. In addition, the applicant is eligible for $100,000.00 under Traumatic Service Members Group Life Insurance Schedule of Losses #20 Traumatic injury resulting in inability to perform at least 2 Activities of Daily Living (ADL) at 120th consecutive day of ADL loss and $25,000.00 for loss #21 Hospitalization due to traumatic injury at 15th consecutive day of hospitalization. 11. On 13 February 2015, the Army TSGLI program office reconsidered the decision of the applicant's previous claim. They were unable to overturn the previous adjudication. a. The documentation provided for the applicant's event which took place on 2 April 2013, did not indicate that she suffered a loss resulting from a qualifying traumatic event. b. The TSGLI Procedures Guide defines a traumatic event as "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." It also states "The event must involve a physical impact upon an individual." The procedures guide also defines external force as "a force or power that causes an individual to meet involuntarily with an object, matter, or entity that causes the individual harm." c. The applicant and her attorney assert that her injury was the result of jump squats. The documents provided do not indicate that during this exercise she met involuntarily with an object, matter or entity. Any appeal of her claim should include additional medical documentation to support her claim, and must cover the entire period of ADL loss claimed (2 April 2013 through 31 July 2013.) 12. On 4 March 2015, the applicant's counsel filed an additional appeal on her behalf. Counsel included the prior claim, appeals, all supporting documents, and the denial letters. There is a disagreement over the definition of a "traumatic event", and for that reason, and per the TSGLI Procedures Guide, counsel forwarded this Request for Reconsideration to Ms. KN, Chief, Program Administration and Oversight Staff Veterans Affairs Regional Office and Insurance Center, Philadelphia, PA to provide guidance on this disagreement. a. The HRC denial, dated 13 February 2015 reiterates the decision of denying the applicant's claim since it was not considered a traumatic event and highlights the word involuntarily. The reliance on this term was the basis of the denial, which remains in disagreement, and is the focus of this request for reconsideration. b. The single word "involuntarily" cannot be the basis of denial. In the review and application of the entire definition provided in the TSGLI Procedural Guide, the applicant meets the definition of a traumatic event. c. Dr. B, who treated applicant stated she "sustained a surgical loss of leg due to a traumatic event, outside source, not a disease." d. As she defines the event, the applicant states "I jumped up with my arms in the air and squatted at the same time. When I landed, I felt immediate pain and something tear in my left thigh, hamstring area." e. The applicant did not lose her leg due to "strain of the normal work effort that is employed by an individual, such as straining one's back from lifting a ladder." The amputation of her leg was from external forces and not internal forces as it involved a direct impact with her body and ground. The impact on the applicant's leg during the insanity workout was direct, severe, and led to the amputation of her leg. f. In summary, this traumatic event involved external force to the applicant's leg after the jump and upon landing on the ground. Most certainly, again, this injury was not due to something like "strain of the normal work effort that is employed by an individual, such as straining ones back from lifting a ladder." It is more similar to a "fall in the bathtub" per the Guidelines, or when someone jumps during airborne training and has a bad landing, which is a commonly decided traumatic event. In addition to the terms of the definition of a "traumatic event", upon looking at the dichotomies provided in the definition of traumatic event, it is clear that the applicant's event should be considered traumatic under the TSGLI Procedures Guide. g. Further, it was not the applicant's intention to land in a manner that caused the loss of her leg. This was an involuntary event during a voluntary exercise. Again, this is analogous to a hard landing in airborne operations that leads to a traumatic injury or an injury. While the event was involuntary, the traumatic impact was not. The truth is that traumatic events happen during training, exercises, and events that are partaken voluntarily, or at one's own will, and the TSGLI will commonly pay these types of claims. The applicant's claim is no different and should be approved. h. Counsel requests $75,000.00 on behalf of the applicant under #11 Amputation of the foot and #17 Coma from traumatic injury at 15th consecutive day of coma or ADL loss under Traumatic Service Members Group Life Insurance Schedule of Losses. The attached exhibits, declarations, and medical records demonstrate the applicant is eligible for $75,000.00 per TSGLI policy. In addition, the applicant is eligible for $100,000.00 under Traumatic Service Members Group Life Insurance Schedule of Losses #20 Traumatic injury resulting in inability to perform at least 2 Activities of Daily Living (ADL) at 120th consecutive day of ADL loss and $25,000.00 for loss #21 Hospitalization due to traumatic injury at 15th consecutive day of hospitalization. 13. On 19 March 2015, Ms. KN, Chief, Program Administration and Oversight Staff Veterans Affairs Regional Office and Insurance Center advised the applicant's counsel the Branches or Service are responsible for determining eligibility for a TSGLI payment and for deciding appeals or adverse decisions on TSGLI claims, not the Department of Veterans Affairs. Therefore, the Army TSGLI Office had the sole responsibility for determining whether the applicant is entitled to TSGLI benefits. Based on the information provided in counsel's letter, the Army TSGLI office denied the applicant's original claim and the Army TSGLI Appeals Board denied her appeal. Counsel was advised the applicant could file an appeal to the Army Review Board Agency (ARBA) and of that decision is unfavorable she may file suit in Federal District Court. 14. On 25 February 2016, the TSGLI Program office, HRC notified counsel after reviewing the applicant's claim and documentation they were unable to overturn the previous adjudication concerning losses associated with amputation of the left leg, hospitalization, coma, and activities of daily living resulting from her injury that occurred in California on 29 March 2013. a. Evidence was not found indicating the applicant's injury occurred from a qualifying traumatic event; therefore, the injury is not eligible for payment according to the program guidelines. A traumatic event is described as the application of external forces that causes damage to the body, and external forces are defined as a force or power that causes an individual to meet involuntarily with an object, matter, or entity that causes the individual harm. The applicant's medical record describes her injury as what was thought to be a pulled muscle and/or sciatica, occurring during an exercise workout. She later describes the event as left thigh/hamstring pain felt after landing while performing a jump squat during her exercise routine. This type of injury employs internal forces (forces acting between body parts) as defined by the program and is not an eligible traumatic event for payment. b. Dr. B's letter was considered in this determination. Although he states "the surgical loss of leg due to a traumatic event, outside source, not a disease," he does not give evidence the traumatic event was caused by external forces and not a disease. Furthermore, he includes the statement, "the leg was eventually amputated due to necrotizing fasciitis," which is a disease. 15. On 5 May 2016, the applicant was discharged from the USAR with an honorable discharge. She was medically disqualified, not a result of her own misconduct. 16. On 22 August 2017, an advisory opinion was received from the ARBA Senior Medical Advisory. a. The applicant jumped up during her exercise and landed on her two feet. This jump/hop resulted in an injury. No external force was applied - only the applicant’s body weight (i.e. gravity) on her two feet that occurred during an exercise program. b. The applicant did not meet criteria per the TSGLI Schedule of Losses under Part II for Traumatic injury resulting in inability to perform at least two ADLs at the 90th or 120th consecutive day of ADL loss. There was limited impairment or impact on the applicant’s ability to perform ADLs, and the applicant was certainly not impaired or impacted enough to be unable to perform two or more ADLs for 90 or more days. The medical records note no injury to the hands or arms. There is no cognitive or intellectual impairment noted. The applicant’s functional capabilities are clearly stated in the post-inpatient rehabilitation discharge summary on 11 June 2013. If the patient is able to perform the activity by using accommodating equipment, the patient is considered able to independently perform the activity without requiring assistance. c. Based on the review of the medication history and documentation, this injury and its complications including left leg amputation, do not meet TSGLI "traumatic injury" guidelines. d. If the Board finds the applicant's injury does meet the criteria for a traumatic event as defined in the TSGLI Procedural Guide the Senior Medical Advisor provided recommend benefits to be allowed. However, in doing so he combined payments from Parts I and II of the Schedule of Losses. 17. On 29 August 2017, a copy of the advisory opinion was forwarded to the applicant with the opportunity to provide a rebuttal/additional statements. The applicant did not provide any additional statements. ? REFERENCES: 1. Appendix A - Schedule of Losses of the TSGLI Procedural Guide states for losses listed in Part I, multiple injuries resulting from a single traumatic event may be combined with each other and treated as one loss for purposes of a single payment (except where noted otherwise), however, the total payment amount MAY NOT exceed $100,000. For losses listed in Part II, payment amounts MAY NOT be combined with payment amounts in Part I - only the higher amount will be paid. The total payment amount MAY NOT exceed $100,000 for multiple injuries resulting from a single traumatic event. a. Part I - Loss shows number 11, amputation of foot at or above the ankle with a payment amount of $50,000 and number 17, coma from traumatic injury at 15th consecutive day of coma with a payment of $25,000. An additional payment of $25,000 is payable at the 30th consecutive day of coma. b. Part II - Loss shows number 20, traumatic injury resulting in the inability to perform at least 2 ADLs at the 30th consecutive day of ADL loss with a payment of $25,000. An additional payment of $25,000 is paid at the 60th consecutive day of ADL loss, at the 90th consecutive day of ADL loss, and at the 120th consecutive day of ADL loss. Number 21, hospitalization due to traumatic injury shows at the 15th consecutive day of hospitalization the payable amount is $25,000. Payment for hospitalization replaces the first payment period in loss number 20. 2. Appendix B - Glossary of Terms defines: a. External Force - An external force is a rush of force or uncontrolled power that causes an individual to meet involuntarily and violently with an object, matter, or entity that causes the individual harm. There is a distinct difference between internal and external forces. Internal forces are forces acting between body part, and external forces are forces acting between the body and the environment, including contact forces and gravitational forces as well as other environmental forces. b. Traumatic Event - 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 a living body. The event must involve a physical impact upon an individual. (1) The event must involve a physical impact upon an individual. Some examples would include: an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head. It would not include an injury that is induced by stress or strain of the normal work effort that is employed by an individual, such as straining ones back from lifting a ladder. (2) Physical impacts do not require penetrating injuries to occur. DISCUSSION: 1. The Traumatic Servicemember’s Group Life Insurance (TSGLI) program pays monetary benefits to Servicemembers who suffer physical damage to the body caused by a traumatic event. a. The TSGLI program was enacted by Congress to provide relief to Soldiers and their families after suffering a traumatic 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. This program is codified at Title 38 (Veterans’ Benefits), United States Code, section 1980A (Traumatic injury protection) and implemented by Title 38 (Pensions, Bonuses, and Veterans’ Relief), Code of Federal Regulations (C.F.R.), section 9.20 (Traumatic injury protection). b. The schedule of losses, contained at 38 C.F.R. § 9.20(f), outlines the injuries covered under TSGLI and the amount payable for each injury. Losses under TSGLI are reflected in two parts. Part I – listed in paragraphs (f)(1) through (19) of that section – shows the payments for specific types of traumatic injuries, coma from traumatic injury, and ADL loss or hospitalization due to traumatic brain injury (TBI). Part II – listed in paragraphs (f)(20) and (21) – lists payments for the loss of ADLs and for hospitalizations due to traumatic injury other than TBI (OTI). Losses listed in Part I may not be combined with losses listed in Part II for payment purposes – only the higher amount will be paid. The total payment amount may not exceed $100,000 for multiple injuries resulting from a single traumatic event. c. TSGLI benefits are payable only if the beneficiary suffers an injury caused by trauma. A traumatic event is, as relevant in this case, the application of external force or violence causing damage to a living being. 38 C.F.R. § 9.20(b); TSGLI Procedural Guide (5 June 2018), p. 5. An “external force” is a force or power that causes an individual to meet involuntarily with an object, matter, or entity causing the individual harm. External forces are forces acting between the body and the environment, including contact forces and gravitational forces. TSGLI Procedural Guide, pp. 5, 83 (Appendix B). In contrast, “internal forces” are forces acting between body parts. The traumatic event must involve a physical impact upon an individual. Some examples include an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head. It would not include an injury induced by the stress or strain of the normal work effort that is employed by an individual, such as straining ones back from lifting a ladder. d. To be compensable, the losses sustained by the applicant must directly result from the traumatic injury. Direct result means there must be a clear connection between the traumatic event and resulting loss and no other factor, aside from the traumatic event, can play a part in causing the loss. 2. The applicant was performing “jump squats” (in which one jumps into the air and lands in a squat position) during a workout in late March 2013. a. Upon landing, she felt a tear/strain and pain in the back of her left thigh and hamstring. She went to the emergency room on 31 March 2013 (a few days after the injury). No acute injuries were assessed and she was instructed to take Flexeril (a muscle relaxer), Vicodin, and over-the-counter pain medication. The pain in her left leg continued to worsen over the next several days and she developed a high fever. On 2 April 2013, the applicant was brought back to the emergency room. She was weak and hypotensive with soft tissue inflammation and swelling in the left hip and gluteal area. Diagnoses of septic shock and necrotizing fasciitis in the left hip area were noted. b. The applicant’s condition continued to worsen during the course of her hospital stay. Intensive care unit (ICU) notes reflect she was placed in a medically induced coma, ventilator dependent, and underwent multiple surgeries in an attempt to save the left leg. On 4 April 2013, the left leg was amputated at the knee level. On 12 April 2013, amputation of the left leg at the thigh level and disarticulation of the hip was performed. She remained in a coma through 27 April 2013 (24 days total). The applicant underwent additional surgeries following these amputations and a wound VAC was placed to encourage healing. The applicant was transferred from the ICU to a rehabilitation unit on 1 June 2013. She was discharged from the rehabilitation unit on 11 June 2013 – after spending over two months in the hospital. c. The 11 June 2013 discharge summary (over 60 but less than 90 days after the workout-related injury) describes the applicant’s level of functional ability and self-care skills. The note indicates the applicant needed supervision upon transferring and could ambulate with crutches at a “supervision to min[imum] assist level.” The applicant was noted as independent for toileting and dressing, requiring supervision with transferring to the bath, modified independent with a front-wheeled walker for toilet transfer, and modified independent at the seated level for bathing. This document reflects that the applicant required physical assistance (hands on) and stand-by (what is termed “supervision”) for transferring, but could perform ADLs of bathing, dressing, and toileting in an independent or modified independent manner. d. On 21 July 2013, the applicant presented to the emergency room for increasing pain over the lateral aspect of the left hip flap and was admitted to the hospital for IV antibiotics. Consultation reports note the applicant’s wound VAC had been off for seven days. The symptoms of pain and discomfort resolved and she was discharged the following day. e. A 17 October 2013 wound care note reflects the applicant had resumed her regular activities as well as a vigorous exercise regimen that included spin classes and hot yoga. The medical records reflect a slowly healing postoperative wound. The physician noted that the applicant required local wound care only at that time. 3. The applicant reports that on 29 March 2013 she was performing an exercise, commonly known as “jump squats,” in which she jumped into the air and landed on the ground in a squat position. Upon landing she felt immediate pain and something tear in the left thigh and hamstring area. There is nothing in the record contradicting the applicant’s version of events that she injured the left leg in the act of landing on the ground during a jump squat. a. The TSGLI office and U.S. Army Human Resources Command (HRC) denied the applicant’s claim on the basis that the claimed loss was not a direct result of a qualifying traumatic event. In 13 February 2015 correspondence, HRC denied the claim on the basis that the evidence did not indicate the applicant “met involuntarily with an object, matter or entity” (original emphasis maintained). In 25 February 2016 correspondence, HRC further indicated the type of injury sustained by the applicant involved internal forces (forces acting between body parts) and does not qualify as a traumatic event. b. Similarly the ARBA medical advisor opined that the applicant injured her left leg performing a voluntary physical activity with no involuntary external force. The ARBA medical advisor, noting that the applicant jumped up and landed on her feet resulting in an injury, opined that no external force was applied, but rather the applicant’s body weight and gravity. The ARBA medical advisor noted that a similar mechanism of injury may occur while walking or running on a level surface, including steps, or stepping out of a vehicle or off a sidewalk onto the street. The ARBA medical advisor ultimately indicated he “deferred” the determination of whether the applicant’s injury met the TSGLI definition for traumatic injury to the ABCMR. c. The findings by HRC and the ARBA medical advisor are not consistent with the guidance within the TSGLI Procedural Guide specifically defining “gravitational forces” as an external force. The gravitational force involved with landing after jumping is an external force operating upon an individual causing physical impact with the ground. Contrary to the ARBMA medical advisor’s comments, this situation differs from one where an individual is simply walking or running – involving only internal forces (forces acting between body parts) – when the injury occurs. The type of injury sustained by the applicant did not involve only internal forces. Rather the applicant’s injury was a result of her jumping during a workout with gravity being the “external force” accelerating her movement and causing her left leg injury upon impact with the ground. This situation is analogous to injuring one’s leg jumping off an obstacle on an obstacle course, during a hard landing following a parachute jump, or with a fall in the bathtub (an example specifically provided within the TSGLI Procedural Guide as an example of a traumatic event). The applicant was accelerated beyond her normal movement speed by an external force – gravity pulling her downwards – resulting in direct impact with another object – the ground – and physical injury. d. Accepting HRC’s premise that, because the initializing event was undertaken as a voluntary action, any resultant injury is a voluntary action (and not caused by a traumatic event for TSGLI purposes), would essentially make ineligible a large number of traumatic events resultant from the application of external force, including ones listed within the TSGLI Procedural Guide. For example, injuries sustained from a fall in the shower would not to be covered based on this logic. After all, the individual choose voluntarily to get in the shower. The finding by HRC that the applicant’s action of performing a jump squat was voluntary and the resultant injury was thereby voluntary is akin to saying that because a Servicemember voluntarily jumped out of an airplane during airborne school, any injury sustained in landing following the parachute jump does not stem from a traumatic event. Almost all actions taken by individuals begin with a voluntary decision to undertake the action. In this case, while the initializing event was undertaken as a voluntary action – deciding to work out and perform jump squats – the resultant event – the hard impact on the ground caused by gravitational forces – was an involuntary action. e. Further, the injury in this case was not induced by the stress or strain of the normal work effort employed by an individual. See TSGLI Procedural Guide, p. 5. The gravitational force and impact with the ground upon landing makes this case more analogous to a fall in the bathtub (which would be considered a traumatic event for TSGLI purposes) versus straining ones back lifting a ladder (which would not be considered a qualifying event). The applicant in this case did not simply take a step or bend over and tear her hamstring/injure the leg. Rather the injury stemmed from an exercise that is beyond the stress and strain of normal work effort. 4. While the medical records reflect some speculation by the treating physicians as to the cause of the initial injury, in an 8 April 2014 letter, Dr. P.B. opined that the applicant sustained surgical loss of the leg due to a traumatic event from an outside source. Dr. P.B. indicated that the applicant sustained injury to the gluteal hamstring muscle during a workout resulting in eventual amputation of the leg due to necrotizing fasciitis. The ARBA medical advisor does not dispute that the limb loss, coma, hospitalization, and OTI ADL loss stem from the workout injury. The ARBA medical advisor opined that, if the ABCMR found the applicant met the TSGLI guidelines for a traumatic injury, then she would be entitled to TSGLI benefits based on that injury. Consequently, the undersigned believes the evidence of record demonstrates by a preponderance of evidence that the applicant incurred traumatic force on her body on or about 29 March 2013 resulting in injury to the left leg and the traumatic event directly resulted in amputation of the left leg, coma, inpatient hospitalization, and OTI ADL loss. 5. Payments for coma from traumatic injury and lower extremity amputation are both contained within Part I of the schedule of losses. Under 38 C.F.R. § 9.20(f), Part I losses may be combined in determining entitlement to benefits. The benefits for coma from traumatic injury are $25,000 for 15 consecutive days of coma; $50,000 for 30 days; $75,000 for 60 days; and a maximum of $100,000 for 90 days or more. The benefits for amputation of a foot at or above the ankle are $50,000 for each foot. In this case, it is not disputed that the applicant underwent amputation of the entire left leg and was in a coma for 24 days. The contemporaneous medical records and the November 2013 medical professional certification by Dr. P.B. note the applicant was in a coma for 24 days and underwent amputation of the left foot. 6. The evidence does not support the applicant experiencing 120 consecutive days of inability to independently perform at least 2 ADLs. a. Payments for hospitalization and OTI resulting in an inability to perform at least two ADLs are contained within Part II of the schedule of losses. The TSGLI program recognizes six ADLs: bathing, dressing, toileting, continence control, eating, and transferring (moving in and out of chairs, beds, etc.). In general, an injured Servicemember is entitled to compensation if he or she is unable to independently perform two or more of these ADLs for 30 or more consecutive days. The benefits are $25,000 for 30 consecutive days; $50,000 for 60 days; $75,000 for 90 days; and a maximum of $100,000 for 120 days or more. An inpatient hospitalization stay of 15 or more days replaces the first OTI ADL milestone ($25,000) and can only be issued once per qualifying event. b. A Servicemember is considered to have a requisite ADL loss if he or she requires assistance to perform at least two ADLs. 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. “Requires assistance” encompasses: physical assistance (when a patient requires hands-on assistance from another person); stand-by assistance (when a patient requires someone to be within arm’s reach because the patient’s ability fluctuates and physical or verbal assistance may be needed); or verbal assistance (when a patient requires verbal instruction in order to complete the ADL due to cognitive impairment and without these verbal reminders, the patient would not remember to perform the ADL). c. Under TSGLI procedural guidelines and 38 C.F.R. § 9.20, a Part I loss may not be combined with a Part II loss in determining entitlement to benefits. If an individual has injuries listed in both parts of the schedule of losses, that individual will receive payment for the highest paying losses under Part I or Part II up to a maximum $100,000, whichever results in the greater benefit. As discussed above, the applicant is entitled to $75,000 for Part I losses. It is not disputed that the applicant was hospitalized from 2 April through 11 June 2011 – in excess of the 15 days of inpatient hospitalization required to replace the first OTI ADL milestone. It is also undisputed that the applicant experienced some amount of OTI ADL loss. However, in order to receive additional TSGLI benefits under Part II of the schedule of losses, the applicant must demonstrate by a preponderance of the evidence that she experienced an inability to independently perform two or more ADLs for 120 consecutive days or more. d. The preponderance of the evidence is against a finding that the applicant was unable to independently perform at least two ADLs for 120 consecutive days. The applicant has submitted lay statements from herself and her spouse describing her ADL impairment, a November 2013 certification from Dr. P.B. that she continued to acquire assistance with all ADLs, and an April 2014 letter from T.B., a nurse practitioner, describing the applicant’s ADL impairment. As detailed above, the 11 June 2013 (over 60 but less than 90 days after the traumatic injury) discharge summary discusses the applicant’s functional capabilities and reflects that, while the applicant required assistance with transferring (one ADL), she could perform ADLs of bathing, dressing, and toileting in an independent or modified independent manner. In the 22 August 2017 medical advisory opinion, the ARBA medical advisor noted that the medical records reflected no injury to the hands or arms or cognitive/intellectual impairment. The medical advisor opined that, because the applicant was able to perform ADLs with use of accommodating equipment (as noted on the 11 June 2013 discharge summary), she is considered capable of independently performing the activity without requiring assistance per TSGLI guidelines. e. In the 29 April 2014 letter, T.B. noted that, while it was documented the applicant was able to perform certain tasks in the hospital such as walking with crutches, once she returned home she was no longer able to perform tasks such as walking without assistance. The TSGLI schedule of losses requires ADL loss for 120 consecutive days, not merely 120 days in general. The TSGLI benefit scheme contemplates injuries and debilitations that are so severe that the individual requires ADL assistance not merely “now and then”; not merely for several days in a row; and not merely sporadically during a given month. Instead, TSGLI requires an applicant to demonstrate disabilities and impairments so significant that performing two ADLs for 120 consecutive days is not possible or safe without the help of another. This statement lends support to the finding that, while the applicant may have experienced ADL loss on some days, she did not experience said loss for 120 consecutive days. f. Dr. P.B. certified in November 2013 the applicant required assistance with all ADLs including showering, this appears contradicted by other evidence of record. The 17 October 2013 wound care notation reflects the applicant had resumed her regular activities and a vigorous exercise program. It would be unreasonable to assume that an applicant with this level of physical ability would continue to be unable to independently perform any and all ADLs. Based on all the evidence of record, the applicant has failed to prove by a preponderance of the evidence that she was unable to independently perform two or more ADLs for 120 consecutive days. 7. The key issues in this case are 1) whether the applicant was injured by an external force involving a physical impact that caused her to meet involuntarily with an object, matter, or entity during the March 2013 workout; and, 2) if yes, whether the applicant’s losses are directly attributable to the March 2013 workout injury. If the ABCMR determines that the applicant: 1) suffered a left leg injury caused by a traumatic event on or about 29 March 2013 while performing jump squats during a workout; and 2) the traumatic injury resulted in scheduled losses of amputation of the left leg and coma from traumatic injury for more than 15 (but less than 30) days, this correction would make her eligible for $75,000 in TSGLI benefits. BOARD DATE: 5 February 2019 DOCKET NUMBER: AR20160005631 BOARD DETERMINATION/RECOMMENDATION: 1.The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she met the criteria for TSGLI benefits for scheduled losses of amputation of the left foot and coma from traumatic injury for more than 15 (but less than 30) days.2.The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief in excess of that described above. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005631 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005631 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2