IN THE CASE OF: BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20160008524 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: 28 June 2016 DOCKET NUMBER: AR20160008524 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: 28 June 2016 DOCKET NUMBER: AR20160008524 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 his request, statement, and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, reversal of the decision to deny the applicant's Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim for payment of $50,000 for loss of activities of daily living (ADLs) for 60 days. He also requests a personal appearance before the Board. 2. Counsel states, in effect: a. The TSGLI office denied his claim and subsequent appeals. The finding is inconsistent with the submitted statements regarding the fall and impact of the ground as well as medical reports. Ignoring the statements and the medical records is in error and an injustice. The totality of the evidence supports payment of this claim. b. The denial is unjustified in light of the statements and medical records, which demonstrate the applicant suffered a traumatic event as defined by the TSGLI guidelines and he required assistance to perform at least two ADLs for over 60 days. The statements and medical records were 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 Exhibit A (all previous claims, evidence, appeals, and denial letters) and Exhibit B (applicable law (Title 38, Code of Federal Regulations, section 9.20; procedural guide; and case law). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 8 June 2010 and he held military occupational specialty 92Y (Unit Supply Specialist). He served in Afghanistan from 13 June 2011 to 5 May 2012. 2. On 20 March 2012, he injured his back and neck while carrying another Soldier in a training exercise in Afghanistan. He underwent decompression of a herniated lumbar disc a year later. 3. On 24 February 2014, following entry into the Integrated Disability Evaluation System, a physical evaluation board (PEB) determined he was physically unfit for these conditions: lumbar degenerative disc disease, cervical multilevel degenerative disc disease, upper left arm radiculopathy, and lower right arm radiculopathy. The PEB recommended an 80-percent combined disability rating and permanent retirement. 4. He was honorably retired due to permanent disability and placed on the retired list in his retired rank/grade of specialist/E-4 on 29 April 2014. He completed 3 years, 10 months, and 22 days during this period of service. 5. He submitted a TSGLI application. He claimed that he was involved in a simulated warfare exercise with his detachment at a forward operating base in Afghanistan. He contended that while engaged in vehicle-borne improvised explosive device training, he seriously injured his lumbar spine and strained his neck while he carried a service member in full gear to a different location. He claimed "other traumatic injury (OTI)" and an inability to perform certain ADLs post-surgery: * he was unable to bathe independently from 5 March 2013 to 17 May 2013; he required assistance to sponge bathe the first three weeks and then needed help getting in and out of the shower/bath tub, washing/drying his lower body, and he was unable to bend over * he was unable to dress independently from 5 March 2013 to 17 May 2013; he required assistance with pants, undergarments, and shoes; he was unable to put left arm through shirt without assistance, and he was unable to bend over * he was unable to toilet independently from 5 March 2013 to 17 May 2013; he required assistance with getting to and from toilet and lowering and lifting off the toilet * he was unable to transfer independently from 5 March 2013 to 17 May 2013; he required assistance getting in and out the bed, a chair or a sofa, and he required standby assistance to ensure he did not fall * a medical professional in Primary Care stated multiple factors impeded the applicant's ability to independently perform the specified ADLs above; these included strict orders to avoid bending, twisting or lifting; surgical pain; lethargy and drowsiness from pain medications; generalized weakness; limited use of his left arm; pain in both knees; and risk of falling * he required daily hands-on and stand-by assistance from his wife after the surgery and up until at least 17 May 2013; without assistance, he would have been incapable of performing these ADLs 6. By letter, an official at the Prudential Office of TSGLI informed him that the Army completed evaluating his TSGLI claim but could not approve payment of his claim for the inability to perform ADLs due to OTI for 60 days. His claim for the inability to perform ADLs was not approved because his loss was 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 the evidence indicates his loss did not directly result from a traumatic event, the Army could not approve his claim. 7. On 4 June 2014, he submitted (through counsel) a Standard Form 180 (Request Pertaining to Military Records). On 13 June 2014, an official at the U.S. Army Human Resources Command (HRC) responded and provided his counsel with copies of the initial application, ineligibility letter, revised initial application, and initial application decision letter. The HRC official also explained the procedure for a request for reconsideration. 8. On 9 March 2015, by letter, an official at HRC notified the applicant that the Army TSGLI program office reconsidered its decision on his previous claim but could not overturn their previous adjudication. The documentation provided for his event which took place in Afghanistan on 20 March 2012 did not indicate that he suffered a loss from a qualifying traumatic event. The TSGLI Procedural Guide defines a traumatic event 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." It also states, "the event must involve a physical impact upon an individual" and "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 straining one's back from lifting a ladder." The document he and his counsel provided indicated that he strained his back and felt a pop while attempting to lift another Soldier. 9. On 31 March 2016, by letter, The Adjutant General notified the applicant's counsel that the Army TSGLI program office had received and considered the appeal request. After reviewing the claim and supporting documentation, that office was unable to overturn the previous adjudication concerning claimed losses associated with ADLs resulting from his back injury that occurred in Afghanistan on 20 March 2012. That office could not find evidence indicating the applicant's injury occurred from a qualifying traumatic event; therefore, he was not eligible for payment according to the program guidelines. a. 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 consistently describes his back injury as a lift and carry injury while performing a fireman's carry during training in Afghanistan. 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. The applicant has the right to apply to the Army Review Boards Agency if he disagrees with this final decision. In addition to using the administrative appeals process, he has the right to appeal this decision in federal district court (Title 38, U.S. Code, section 1975). 10. The applicant's counsel provides a compact disk, which includes Exhibit A (all previous claims, evidence, appeals, and denial letters) and Exhibit B (applicable law, procedural guide, and case law). A review of the medical records associated with his claims reveals: a. 25 October 2011, Shinbad Battalion Aide Station (BAS) Theater Note documents the applicant was executing a fireman's lift when he heard a "pop" in his left knee. It states he walked in unaided and the knee is stable. (This is the only theater note found in the medical record that documents an injury while performing a fireman's carry. This note documents a left knee injury.) b. 20 March 2012, this is the date the applicant claims the traumatic event occurred. In his initial application, he stated he was performing a fireman's carry during a training exercise while he and the "victim" were in full combat gear. He stated he felt a pop in his knees and a knife or pin feeling in his lower back. In his reconsideration application, he describes the traumatic event as "he was lifting and carrying a noncommissioned officer (NCO) with full gear ... [when] he fell to the ground due to the excessive weight and felt a 'pop' in his back. He suffered injury to his lower back, both knees, neck, and left arm." (This is the date that was used as the traumatic event date for his claim. It is noted that there is no theater note from this date, and the next theater note does not list this injury.) c. 22 March 2012, 3 days after the traumatic event, Theater BAS Note documents a periodic health assessment (PHA) that stated he has intermittent back and knee pain and has no difficulty in performing his assigned duties. It records a normal gait, stance, and balance. It states, "No change in interval medical history. Chronic stable knee and back pain. Meets AR [Army Regulation] 40-501 [Standards of Medical Fitness] retention requirements." (It is noted here that a PHA, which normally documents substantial medical problems in the past year, does not document an injury that occurred three days prior, which would eventually lead to surgery and a claim for ADL loss.) d. 9 May 2012, 51 days after the traumatic event, a Soldier Readiness Processing (SRP) note documents he injured his lower back and both knees while performing a fireman’s carry in Afghanistan. (This note does not document a fall or a neck and/or left arm injury as highlighted in his counsel's letter; additionally, this note also does not document the injury date.) e. 18 July 2012, 121 days after the traumatic event, a Troop Medical Clinic (TMC) note documents he stated he injured his back while he carried his military gear. (This is the next available note in his medical record.) f. 4 October 2012, 199 days after the traumatic event, a TMC note documents the applicant reported low back pain which he injured in February at Shindad after picking up a Soldier in a fireman's carry. It records lower back pain with numbness to his left foot. (This note does not document a fall during the traumatic event and states the traumatic event occurred in February.) g. 4 December 2012, 260 days after traumatic event, a TMC note documents the magnetic resonance imaging (MRI) results of his lower back, which showed spinal cord lipomatosis (a benign fatty tumor condition) with degenerative changes and degenerative disc disease that caused severe narrowing of the spinal canal and neural foramen from L3-5. (Degenerative changes usually indicate arthritis, and degenerative disc disease is a gradual "wear and tear" condition to which a traumatic event could contribute to further deterioration. Severe narrowing of the spinal cord and neural foramen could potentially cause pinching of the spinal cord and/or a pinched nerve. It is significant that the lipomatosis is just as likely to have contributed to his radiating back pain as any degenerative changes, which may have been furthered by his traumatic event.) h. 16 December 2012, 272 days after the traumatic event, Texas Brain and Spine Institute documents the traumatic event happened when the applicant performed a fireman carry for 60 feet in full combat gear. It records the date of injury was March 2012. (Again, there is no mention of a fall during the traumatic event. This is the first mention in the medical record of an injury date in March 2012.) i. 10 January 2013, 297 days after the traumatic event, a physical therapy note documents the traumatic event happened in March 2012 by lifting a Soldier in a fireman's carry that caused a sharp increase in back pain. It states he has had recurrent back pain since the lift. (There is no mention of a fall during the traumatic event.) j. 17 January 2013, 304 days after the traumatic event, neurosurgery notes document the traumatic event happened when the applicant lifted another Soldier onto his back and did a fireman carry. It records the date of injury was March 2012 while in Afghanistan. It states the applicant was scheduled for back surgery. (There is no mention of a fall during the traumatic event.) k. 13 February 2013, 331 days after the traumatic event, TMC note documents the applicant has been having left arm pain for 4 months prior with an atraumatic etiology. It diagnoses cervicalgia (neck pain) and a neck MRI was ordered to determine if the neck is the cause of the left arm pain. (This is significant because it shows the left arm and neck pain are not related to the traumatic event as claimed in the TSGLI reconsideration and appeals applications.) l. 5 March 2013, 351 days after the traumatic event, the applicant claimed the start date of ADL loss; a history and physical report documents he hurt his back in March 2012 in Afghanistan when he had to lift another Soldier onto his back and did a fireman’s carry. It states his back hurt him ever since that event. It records he will have an L3-4 and L4-5 bilateral hemilaniectomy and decompression surgery. The operative report documents he had back surgery at L3-4 and L4-5 without complications. m. 6 March 2013, 352 days after the traumatic event, 2 days after claimed start of ADL loss; his hospital discharge instructions documents he should not lift, bend, or twist and should not resume activities of daily living until after his follow-up appointment. They do state he can shower and should walk as much as he can bear. His pain level is recorded as 2 out of 10. (These notes are unclear for TSGLI purposes, because they state not to resume activities of daily living until follow-up but do not specify whether that is basic ADLs or instrumental ADLs or his regular work. To add to the confusion, they state he may shower and walk as much as he can bear, which would be basic ADLs per TSGLI guidelines. Thus, if he is allowed to perform some basic ADLs, it is unclear exactly which ADLs he was not supposed to perform until his follow-up appointment.) n. 21 March 2013, 367 days after the traumatic event, 17 days after claimed start of ADL loss, a neurosurgery progress note documents the applicant is doing well and his pain is much better. It states he should gradually increase activity while decreasing pain medicines. It records normal strength in all upper extremities. It notes no bending, twisting, or lifting and continued off work. (This note does not specifically mention ADLs but does show he was improving and should increase his daily activity. It does show that his left arm/neck condition should not adversely affect ADL performance, since he has normal strength.) o. 18 April 2013, 395 days after the traumatic event, 45 days after claimed start of ADL loss, a neurosurgery note documents the applicant is ready to go to physical therapy and then back to work. It states his mobility and function have improved and his pain medicine usage is minimal. It records he can begin light duty. (A person who can perform light duty can perform basic ADLs.) p. 26 April 2013, 403 days after the traumatic event, 53 days after claimed start of ADL loss, Medical Management Center note documents the applicant received a walker on 5 March 2013, the day of his surgery. It notes the applicant stated his right leg numbness and low back pain that were present before surgery were now gone. (A person with resolved back pain and leg numbness should be able to do basic ADLs.) q. 16 May 2013, 423 days after the traumatic event, 73 days after claimed start of ADL loss, a neurosurgery note documents the applicant was doing well and doing exercises at home. It records he had some lower back pain that is controlled by ibuprofen. It states he should go back to work on 7 June 2013 with light duty. r. Various letters written by the applicant, his spouse, his counsel, and a registered nurse. REFERENCE: 1. Title 38, section 9.20 covers traumatic injury protection. Sub-paragraph 9-20(b) states a traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being occurring on or after 1 December 2005, or on or after 7 October 2001, and through and including 30 November 2005, if the scheduled loss is a direct result of a traumatic injury incurred in Operation Enduring Freedom or Operation Iraqi Freedom. 2. Public Law 109-13, signed by the President on May 11, 2005, established the 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 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. As of 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 taken out each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI – it is a package. 3. 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 a 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: total and permanent loss of sight in one or both eyes, loss of hand or foot by severance at or above the wrist or ankle, total and permanent loss of hearing in one or both ears, loss of speech, loss of thumb and index finger of the same hand by severance at or above the metacarpo- phalandeal joints, quadriplegia, paraplegia or hemiplegic, third (3rd) degree or worse burns covering 30-percent of body or 30 percent of the face, and coma or traumatic brain injury. 4. The six ADLs are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more. ADL loss must be certified by a healthcare provider in Part B of the claim form, and ADL loss must be substantiated by appropriate documentation, such as Occupational/Physical Therapy Reports, Patient Discharge Summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 5. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR board members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may in its discretion, hold a hearing. 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 personal appearance hearing was carefully considered. By regulation, an applicant (and/or counsel) is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant and/or counsel is sufficient to render a fair and equitable decision at this time. 2. The applicant injured his back and neck while carrying another Soldier in a training exercise. He underwent decompression of a lumbar herniated disc a year later. In his initial application, he described strain from lifting a Soldier in full combat gear. Medical records confirm this history with no indication of any other traumatic event or forces (such as a fall) in a number of different clinic visit notes. It appears that on 23 March 2012, just 3 days after the stated date of injury, the applicant underwent a routine periodic health assessment and was found to meet retention physical fitness standards. 3. The applicant is not eligible for payment for claimed losses because there is no qualifying traumatic event. a. His description in his initial application and every medical note which describes the traumatic event document the injury was due to lifting and carrying another Soldier with no mention of an associated fall. He introduced a fall into the description during the reconsideration process, when he employed his legal counsel. This description is only found on his TSGLI reconsideration application signed by a nurse retained by counsel as well as counsel's letter and his own letter. b. Because the medical record during his period of active service to include duty in Afghanistan does not support the description of a fall during the claimed traumatic event, the report of a fall cannot be substantiated, and the original description of a lift and carry injury is considered the true account of the event. Therefore, there is no qualifying event that met the definition of a traumatic event as defined by law. c. Furthermore even if a qualifying traumatic event had occurred, this injury would not have qualified for the 30-day ADL loss milestone. A person who has a two-disc hemilaminectomy with an uncomplicated course of recovery should be able to perform basic ADLs in at least a modified independent manner within 30 days of an operation. The medical record clearly shows an uncomplicated course of recovery with steady improvement and that the applicant received a walker on the day of his surgery and that within 2 days post-surgery he was able to bath himself and walk, which are basic ADLs. Thus, the evidence shows he would not be eligible for payment for 30-day OTl-ADL loss, even if there were a qualifying traumatic event because he was able to perform all associated ADLs post-surgery as recorded in his medical records. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008524 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008524 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2